Labor & Employment Law Daily Wrap Up, EVIDENCE, DISCOVERY—11th Cir.: Lower court erred in conflating McDonnell Douglas with ‘convincing mosaic’ standard, (Dec 8, 2025)

By Todd Harrison, J.D.

“Today’s holding takes one more swing at the McDonnell Douglas game of whack-a-mole, where we must strike down courts that find new and creative ways to incorrectly apply the framework as substantive doctrine.”

Reversing a lower court’s grant of summary judgment against a former police officer’s Section 1981 claim for retaliation, the Eleventh Circuit found that a plaintiff’s inability to disprove a defendant’s rationale for an adverse employment action cannot be the sole grounds for summary judgment. In reaching its decision, the appellate court attempted to further define the contours established by McDonnell Douglas as well as its own “convincing mosaic” standard, explaining that if a plaintiff cannot satisfy their prima facie case under McDonnell Douglas at the pretext inquiry, the court must then turn to evaluate the evidence before it, applying the duly promulgated Rule 56 summary judgment standard (Ismael v. Roundtree, No. 25-10604 (11th Cir. Dec. 5, 2025)).

The employee in this case was hired as a deputy sheriff by the Richmond County Sherrif’s Office (RCSO) on March 21, 2021.

Workplace harassment. According to the employee, a lieutenant who was assigned to his detail frequently harassed him because of his race. The employee was born in Iraq and is a person of Arabic descent. At the time, the lieutenant was the commander of the RCSO SWAT team which the employee had hoped to join. Although the employee had wanted to report the harassing behavior, the lieutenant made it clear that doing so would tank his chances of ever making the team.

Job inquiry. On September 13, 2021, the employee attended a five-day SWAT training course. On the final day, he failed the written exam and was told he could not join the team. On his way home, while driving a patrol car and still dressed in uniform, the employee decided to briefly visit the Burke County Sherrif’s Office to inquire about job openings.

Complaint. Because the employee was no longer a prospect for the RCSO SWAT team, he filed an internal affairs complaint against the lieutenant. A sergeant who was assigned to investigate found that the complaint could not be sustained. While investigating, the sergeant received an email from Burke County inquiring about the employee. The sergeant forwarded the email to a RCSO captain.

A few days later, a RCSO colonel allegedly received an anonymous call informing him of the employee’s visit to inquire about Burke County job openings.

Termination. On September 28, the employee was scheduled to begin his shift at 6:00 p.m. He had scheduled an interview with Burke County at noon that day. Shortly before noon, he was ordered to report to work ASAP. The employee attended the interview in uniform then reported to the RCSO.

During the interview, the colonel allegedly received a second anonymous call informing him that the employee had returned to Burke County. Shortly thereafter, the sergeant began putting together termination paperwork. The paperwork cited violations of RCSO’s “Manner of Conduct” policy with regard to the employee visiting Burke County on two occasions while in uniform and while driving a patrol car.

Lawsuit. Subsequently, the employee filed this lawsuit, asserting that he was fired in retaliation for his harassment complaint against the lieutenant. He presented several pieces of circumstantial evidence to support his claim. The district court granted the defendants’ motion for summary judgment. The district court found that the employee had established a prima facie case under McDonnell Douglas. The court then found that the defendants had articulated a legitimate, non-retaliatory reason for the termination decision. Finally, the court held that the employee had “failed to prove” the defendants’ articulated reason was pretext for retaliation. This appeal followed.

Rule 56 stand-in. First, the appeals court looked back to its history in developing the “convincing mosaic” standard. The court acknowledged that there was some initial confusion as to whether it had created a new analytical framework along the lines of McDonnell Douglas 2.0. However, the court noted that over time it had clarified that the “convincing mosaic” analysis operates as a stand-in for the Rule 56 summary judgment standard applied to employment discrimination.

Inquiries not identical. Eleventh Circuit precedent makes it clear that a plaintiff who cannot establish a prima facie case under McDonnell Douglas is entitled to a full review under the convincing mosaic standard. However, in this instance the employee did establish his prima facie case, and the district court advanced to steps two and three of the McDonnell Douglas inquiry. At step three, the district court held that the employee failed to raise an inference of pretext.

Having gone through the McDonnell Douglas analysis, the district court was presented with one final question: should it also analyze the evidence under the convincing mosaic standard? Answering that question in the negative, the court determined that doing so would be redundant.

Urging the appellate court to sign off on this interpretation, the appellees argued that “the terms pretext, convincing mosaic, and summary judgment are substantively the same thing” and that “the pretext prong... is the same as the ordinary summary judgment standard.” The appeals court disagreed, stating that, “Though we recognize that both inquiries are probative of the same ultimate question, we are persuaded that they are not identical.”

To show pretext, continued the court, a plaintiff must show both that the employer’s reason for the adverse action was false and that discrimination was the real reason behind its decision. This latter requirement unquestionably holds the same focus as the convincing mosaic standard, said the court. However, the former requirement does not. Requiring a plaintiff to negate the defendant’s explanation on summary judgment has at least two defects, explained the court. First, it is not required to succeed at trial. Second, it detracts from the plaintiff’s affirmative case that the driving cause was illegal discrimination or retaliation.

Entire evidentiary picture. Although a plaintiff may find it useful to attack a defendant’s account of its proffered reason for an adverse employment action, the “entire evidentiary picture” goes further than pretext, observed the court. Eleventh Circuit precedent specifically describes evidence of pretext as a subset of potentially relevant circumstantial evidence.

“A plaintiff must be afforded the opportunity to confront her burden of proof head-on, if she so chooses,” said the court. The convincing mosaic standard, continued the court, heeds this directive and preserves the plaintiff’s opportunity at summary judgment to directly create an inference of discrimination or retaliation. Accordingly, the appeals court held that summary judgment should not be granted for failure to demonstrate pretext unless it also reflects a failure to put forward enough evidence for jury to find for the plaintiff on the ultimate question of discrimination or retaliation.

Probative evidence ignored. Having explained why, as a legal matter, the district court was wrong to conflate a showing of pretext with the standard to survive summary judgment, the court here directed its attention to the case at hand. In this instance, the lower court focused narrowly on the defendants’ purported rationale while ignoring other evidence probative of their illicit intent. For example, the employee proffered evidence that other officers often ran errands while in patrol cars and while in uniform. The district court found this evidence to be immaterial, rejecting this and other evidence unless it “negated the proffered reason” for the termination decision.

As a threshold matter, the employee need not “prove” anything to defeat a motion for summary judgment, said the appellate court. Further, continued the court, evidence does not need to attack—or have anything to do with—a defendant’s purported rationale to help raise an inference of discrimination.

Because the district court only analyzed the employee’s claim through the “narrow lens” of McDonnell Douglas pretext, the appellate court reversed and remanded with instructions to apply the correct summary judgment standard. Specifically, the district court was tasked with asking whether the employee’s circumstantial evidence, “when artfully adhered together and viewed as one,” would allow a reasonable juror “to envision an image of retaliation” and to find in the employee’s favor.

Proper review. “Today’s holding takes one more swing at the McDonnell Douglas game of whack-a-mole, where we must strike down courts that find new and creative ways to incorrectly apply the framework as substantive doctrine,” concluded the court, going on to proffer instructions for district courts to properly review summary judgment motions.

Prima facie case established. If a plaintiff can establish a prima facie case, they are entitled to a rebuttable presumption of illicit intent. This necessarily means that if the defendant fails to proffer evidence of a legitimate reason for the adverse employment action, summary judgment in favor of the plaintiff is appropriate.

In the more common instance wherein a defendant successfully rebuts the presumption, the McDonnell Douglas framework ceases to be relevant. At this point, the court must proceed to ask whether the record, when viewed in the light most favorable to the plaintiff, presents a convincing mosaic of circumstantial evidence that would allow a reasonable juror to infer intentional discrimination or retaliation by the decisionmaker. Although the issue of pretext would still be relevant, a plaintiff’s inability to disprove a defendant’s rationale cannot be the sole grounds for summary judgment, explained the court.

Prima facie case not established. If a plaintiff cannot establish a prima facie case, they do not automatically lose on summary judgment. Rather than lose by default, the plaintiff must produce enough evidence, on their own without any helpful evidentiary burdens or presumptions, to demonstrate a material issue of triable fact. Thus, a court should advance directly to the convincing mosaic inquiry in this instance, applying the duly promulgated Rule 56 summary judgment standard.

The case is No. 25-10604.

Judge: Tjoflat, G.

Attorneys: Douglas R. Kertscher (Hill Kertscher & Wharton) for Ahmed S. Ismael. Randolph Frails (Frails & Wilson) for Richard Roundtree.

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