Eleventh Circuit Reinforces Appellate Abandonment/Waiver and Pleading Limits: Unbriefed or Unpled Employment Claims Do Not Survive Summary Judgment Review

1. Introduction

This per curiam Eleventh Circuit decision addresses an employment-discrimination suit brought by Markisha Cunningham, a Black woman proceeding pro se, against MBUSI and a staffing company, Onin. Cunningham alleged race and sex discrimination and retaliation under Title VII and also invoked 42 U.S.C. § 1981 in the district court. On appeal, she additionally argued the district court failed to address disability discrimination under the ADA and a hostile work environment theory.

The opinion turns less on novel substantive discrimination doctrine and more on procedural gatekeeping rules that often determine whether appellate courts reach the merits: (1) abandonment of issues not properly briefed, (2) waiver through concessions in the district court, and (3) the prohibition on raising new, unpled claims at summary judgment or for the first time on appeal. The court also affirmed on the merits as to Cunningham’s remaining Title VII race-discrimination theory against MBUSI, focusing on the absence of valid comparators and the lack of a “convincing mosaic” of circumstantial evidence.

2. Summary of the Opinion

The Eleventh Circuit affirmed in full.

3. Analysis

3.1 Precedents Cited (and How They Drove the Outcome)

A. Standards of review and pro se constraints

• Alvarez v. Royal Atl. Developers, Inc. — The court applied de novo review of summary judgment and reiterated the core inquiry: whether the record, viewed favorably to the nonmovant, shows no genuine dispute of material fact and entitlement to judgment as a matter of law. This framing set the posture for the court’s later determination that Cunningham’s evidence (comparators, discriminatory intent) did not create a triable issue.
• Taveras v. Bank of America, N.A. (quoting Tannenbaum v. United States) — The court acknowledged that pro se filings receive liberal construction. However, the opinion used this principle as a limited aid, not a cure-all, emphasizing that liberal construction does not relieve litigants of basic procedural requirements.
• Bilal v. Geo Care, LLC — The court emphasized the boundary of liberal construction: courts do not serve as “de facto counsel” and will not rewrite deficient pleadings. This supported the refusal to entertain theories (ADA, hostile environment) not actually pled and to excuse deficient appellate briefing.

B. Appellate abandonment and briefing requirements

• Access Now, Inc. v. Southwest Airlines, Co. — Cited for two closely related propositions:
  • Issues not raised in the district court generally are not considered for the first time on appeal.
  • Arguments not properly presented on appeal are deemed abandoned.
  This case anchored the court’s procedural disposition of Cunningham’s newly asserted ADA/hostile-environment theories and undergirded the abandonment analysis.
• Sapuppo v. Allstate Floridian Ins. Co. (quoting Cole v. U.S. Att'y Gen.) — The opinion used Sapuppo to define inadequate briefing: an appellant must “plainly and prominently” raise an issue. Cunningham’s failure to argue certain claims in her opening brief triggered abandonment.
• Fed. R. App. P. 28(a)(8)(A) — The court invoked the rule requiring contentions, reasons, and citations to authorities and record evidence. This served as the doctrinal basis for treating unargued claims as abandoned even for a pro se appellant.

C. Waiver by concession in the district court

• United States v. Gonzalez — The court distinguished waiver from forfeiture and treated waiver as an “intentional relinquishment” that is not reviewed on appeal. Applying this, the panel declined to revive claims Cunningham “unequivocally conceded” below—retaliation claims as to MBUSI and all claims as to Onin.

D. Pleading boundaries at summary judgment; raising new claims

• Poer v. Jefferson Cnty. Comm'n (quoting Gilmour v. Gates, McDonald & Co.) — The court reiterated a recurring Eleventh Circuit rule: plaintiffs may not raise new claims at the summary judgment stage; if they want to add claims, they must amend under Rule 15. This directly resolved Cunningham’s argument that the district court “failed to address” ADA and hostile-work-environment claims: because they were not pled, there was nothing for the district court to adjudicate.
• Fed. R. Civ. P. 8(a)(2) and Fed. R. Civ. P. 15 — Rule 8’s “short and plain statement” requirement was used to explain why the amended complaint’s omission of the ADA/hostile-environment theories was dispositive; Rule 15 was pointed to as the proper mechanism for adding new claims.

E. Substantive Title VII proof structures: McDonnell Douglas and “convincing mosaic”

• Tynes v. Fla. Dep't Juv. Just. — Provided the court’s modern articulation of Title VII proof: discrimination can be shown by direct or circumstantial evidence; the “burden shifting framework” under McDonnell Douglas is a tool for circumstantial cases; and a prima facie case typically requires a comparator outside the protected class treated more favorably.
• McDonnell Douglas Corp. v. Green — The canonical framework supplied the prima facie elements and the comparator-centric approach Cunningham failed to satisfy.
• Jefferson v. Sewon America, Inc. — Used to define “adverse employment action” as a “serious and material change” in terms/conditions/privileges of employment. While the panel did not dwell on this element, its inclusion signals continued adherence to the Eleventh Circuit’s materiality lens.
• Jenkins v. Nell — Cited twice:
  • For the “similarly situated in all material respects” comparator standard (as the comparator definition also appears in Tynes).
  • For examples of evidence that can form a “convincing mosaic” (suspicious timing, ambiguous statements, systematically better treatment, and pretext).
• Lewis v. City of Union City, Ga. (en banc) — The key en banc authority for the “convincing mosaic” alternative and for demanding comparators be “similarly situated in all material respects.” The panel relied on Lewis to reject Cunningham’s vague assertions about “unidentified white male co-workers” as insufficient to meet the comparator requirement and to conclude that the record did not permit an inference of discriminatory animus.
• Springer v. Convergys Customer Mgmt. Grp. Inc. — Supplied the Eleventh Circuit’s pretext articulation: plaintiffs must expose weaknesses/implausibilities/inconsistencies in the employer’s reasons; and must show both falsity and that discrimination was the real reason.
• Ismael v. Roundtree — The opinion treated Ismael as a “roadmap” for summary judgment in employment discrimination:
  • Failure to establish a prima facie case does not automatically end the matter.
  • Courts should “advance directly to the convincing mosaic inquiry” where necessary.
  • Summary judgment should not be granted for “failure to demonstrate pretext” unless the record also fails to support a jury finding on the ultimate question of discrimination/retaliation.
  Here, the panel effectively applied Ismael by (i) noting the prima facie failure (no valid comparators) and then (ii) still analyzing whether a convincing mosaic existed—concluding it did not.

3.2 Legal Reasoning (Step-by-Step)

A. The court narrowed the appeal to only properly preserved and properly briefed issues

The first decisive move was procedural triage. Even though Cunningham invoked multiple statutory theories, the Eleventh Circuit treated its review authority as constrained by:

• What was argued in the opening brief (abandonment doctrine, supported by Access Now, Inc. v. Southwest Airlines, Co. and Sapuppo v. Allstate Floridian Ins. Co. and Rule 28), and
• What was conceded below (waiver, supported by United States v. Gonzalez).

This procedural framing is outcome-determinative in many employment appeals: a party can lose not because discrimination could not be shown, but because the party failed to properly present the issues in the correct forum at the correct time.

B. The panel refused to adjudicate new theories (ADA and hostile work environment) not pleaded in the amended complaint

Cunningham argued the district court erred by not addressing ADA discrimination and hostile work environment. The panel’s reasoning followed a clear syllogism:

• Under Rule 8(a)(2), a complaint must state the claims.
• Under Poer v. Jefferson Cnty. Comm'n (quoting Gilmour v. Gates, McDonald & Co.), plaintiffs cannot introduce new claims at summary judgment; they must amend under Rule 15.
• Because Cunningham did not raise ADA/hostile-environment claims in the amended complaint, the district court had no obligation to address them; and under Access Now, Inc. v. Southwest Airlines, Co. the Eleventh Circuit would not consider them when raised for the first time on appeal.

C. On the remaining merits issue (Title VII race discrimination vs. MBUSI), the panel applied both the comparator framework and the “convincing mosaic” framework

After narrowing the case, the court evaluated Cunningham’s Title VII race discrimination claim against MBUSI.

• Prima facie (comparators): Applying Tynes v. Fla. Dep't Juv. Just. and Lewis v. City of Union City, Ga., the court held Cunningham failed to identify “valid comparators” because she relied on “unidentified white male co-workers” with alleged “similar behavior” who allegedly received opportunities. Without specific, materially similar comparators, the prima facie case failed.
• Convincing mosaic: Consistent with Ismael v. Roundtree, the panel did not stop at the comparator failure. It reviewed the record for circumstantial evidence of intent and concluded it did not add up to a “convincing mosaic” under Lewis v. City of Union City, Ga. and Jenkins v. Nell.
  • The employer documentation reflected performance-related concerns (progress, readiness for promotion, attendance, quality of work).
  • Supervisors’ observations included lack of motivation, difficulty locating her, excessive cell phone use, lack of proactivity, and failure to stay with mentor.
  • Although Cunningham alleged derogatory race-based comments, she did not tie them to “anyone in a leadership position” or show leaders knew about them—weakening any inference that the challenged employment decisions were racially motivated.

In other words, even under the more flexible “mosaic” approach, the panel found the record lacked enough evidence from which a reasonable jury could infer discriminatory animus behind the failure to promote or termination.

3.3 Impact

A. Procedural impact: this opinion underscores how employment appeals can be won or lost on preservation and presentation

Even though the opinion is “NOT FOR PUBLICATION,” it reflects and reinforces several entrenched Eleventh Circuit practices that shape litigation strategy:

• Opening brief discipline is decisive: The abandonment discussion—grounded in Access Now, Inc. v. Southwest Airlines, Co. and Sapuppo v. Allstate Floridian Ins. Co.—signals that appellants, including pro se litigants, must squarely brief each claim they want reviewed.
• Concessions are case-ending: The waiver holding, relying on United States v. Gonzalez, is a caution that concessions in summary-judgment briefing or at hearings can permanently foreclose appellate review.
• Pleading boundaries remain firm at summary judgment: The application of Poer v. Jefferson Cnty. Comm'n (quoting Gilmour v. Gates, McDonald & Co.) confirms that plaintiffs cannot pivot to new statutory schemes (like the ADA) or new theories (hostile work environment) without amending the complaint.

B. Substantive impact: confirms comparator specificity and “mosaic” limits

On the merits, the decision illustrates two important realities of Title VII practice in the Eleventh Circuit:

• Comparator evidence must be concrete: Allegations about “unidentified” comparators are insufficient. Lewis v. City of Union City, Ga. demands material similarity; litigants must identify who the comparator is and why the comparator is similarly situated in relevant respects (job, supervisor, misconduct/performance history, policies applied, and decisionmaker context).
• “Convincing mosaic” is not a relaxed pleading substitute: The mosaic inquiry can save a case that lacks a clean comparator, but it still requires evidence that coheres into an inference of discriminatory intent—e.g., leadership-linked discriminatory remarks, suspicious timing tied to protected activity or race, systematic disparity evidence, or compelling pretext proof.

4. Complex Concepts Simplified

• Summary judgment: A pretrial ruling where the court decides there is no genuine dispute of material fact and the moving party wins as a matter of law. The appellate court reviews this “de novo,” meaning it applies the same standard anew.
• Pro se liberal construction: Courts read pro se filings more generously, but they do not invent claims or arguments for the litigant (Bilal v. Geo Care, LLC).
• Abandonment (on appeal): If an appellant does not properly argue a claim in the opening brief—with reasons, record citations, and legal authority—the court treats it as abandoned (Sapuppo v. Allstate Floridian Ins. Co.; Rule 28).
• Waiver (in the district court): If a party intentionally gives up a claim (for example, conceding it), the appellate court typically will not review it (United States v. Gonzalez).
• Comparator: In discrimination cases, a “comparator” is another employee outside the plaintiff’s protected class who is similarly situated in all material respects but treated better. Vague references to unnamed coworkers are not enough.
• “Convincing mosaic”: A way to prove discrimination without a perfect comparator by using multiple pieces of circumstantial evidence that, together, support an inference of discriminatory intent (Lewis v. City of Union City, Ga.).
• Pretext: Showing the employer’s stated reason is not the true reason. Under Springer v. Convergys Customer Mgmt. Grp. Inc., it is not enough to argue the employer was wrong or unfair; the plaintiff must show the reason was false and that discrimination was the real reason.

5. Conclusion

The Eleventh Circuit’s decision in Markisha Cunningham v. Mercedes-Benz U.S. International, Inc. is a procedural and evidentiary reminder in employment litigation: appellate courts will not reach the merits of claims that are unbriefed, conceded, or newly raised after the pleadings are set. Substantively, the opinion reaffirms that Title VII plaintiffs must present concrete comparator evidence or, failing that, a coherent “convincing mosaic” tied to discriminatory intent—something the panel found lacking where the record instead reflected documented performance concerns and no leadership-linked discriminatory remarks or knowledge.

In the broader legal context, the case demonstrates how the Eleventh Circuit’s doctrinal architecture—Rule 28 briefing discipline, waiver principles, Rule 8/Rule 15 pleading boundaries, and the dual pathways of McDonnell Douglas Corp. v. Green and Lewis v. City of Union City, Ga. (as operationalized through Ismael v. Roundtree)—collectively shapes which employment discrimination claims are decided on the merits and which end on procedural grounds.