McDonnell Douglas “Drops Out” After Rebuttal: Summary Judgment Turns on a Rule 56 “Convincing Mosaic,” and Mixed-Motive Theories Must Be Properly Raised

Court: U.S. Court of Appeals for the Eleventh Circuit (Not for Publication)
Case: Larry Coleman v. Morris-Shea Bridge Company, Inc.
Date: February 27, 2026

1) Introduction

This consolidated appeal arises from the termination of three African American brothers—Larry Coleman, Chester Coleman, and Freddie Seltzer—after decades of work for a heavy-construction contractor, Morris-Shea Bridge Company, Inc. (“MSB”). The brothers alleged race discrimination (Title VII and 42 U.S.C. § 1981) in compensation and termination, and Larry and Chester alleged age discrimination (ADEA) in termination. Larry also tried an FLSA overtime claim.

The principal issues on appeal were:

  • Whether summary judgment was properly granted against the brothers’ race and age discrimination claims;
  • Whether the district court properly applied judicial estoppel retroactively to already-adjudicated summary-judgment claims (an issue the Eleventh Circuit ultimately did not need to reach); and
  • Whether the district court abused its discretion in taxing certain prevailing-party costs under 28 U.S.C. § 1920.

2) Summary of the Opinion

The Eleventh Circuit affirmed in full. It held that Larry and Freddie failed to establish similarly situated comparators for their compensation claims and, even without a prima facie case, failed to present a “convincing mosaic” of circumstantial evidence of discrimination. As to termination, the court assumed (without deciding) that the brothers could satisfy the prima facie step, but concluded MSB rebutted any presumption with a legitimate, nondiscriminatory reason—decline in work ethic—and the brothers failed to show pretext or otherwise assemble a convincing mosaic of race or age discrimination.

On costs, the court held the district court did not abuse its discretion in taxing costs for condensed deposition transcripts and deposition disks, costs associated with deposition exhibits, and expedited deposition transcripts (with the expedited-transcript challenge deemed unpreserved).

3) Analysis

A. Precedents Cited

1. Summary judgment baseline

  • Hill ex rel. BHJ v. Cundiff and Hallmark Devs., Inc. v. Fulton Cnty. anchor the standard Rule 56 lens: viewing evidence and inferences in the nonmovant’s favor and granting summary judgment only when no genuine dispute of material fact exists.

2. Title VII / § 1981 framework and the “drop out” principle

  • McDonnell Douglas Corp. v. Green supplies the burden-shifting sequence (prima facie case; employer’s legitimate reason; plaintiff’s pretext showing).
  • St. Mary's Honor Ctr. v. Hicks is central to the court’s modern framing: once the employer produces a legitimate reason, the burden-shifting presumptions no longer control—i.e., the framework “drops out.”
  • Standard v. A.B.E.L. Servs., Inc. is cited for the proposition that Title VII and § 1981 use the same proof requirements and analytical framework.
  • Ismael v. Roundtree is treated as the key clarifying authority on how McDonnell Douglas Corp. v. Green operates at summary judgment in the Eleventh Circuit: if rebutted, the analysis returns to ordinary Rule 56—often articulated as whether the plaintiff has shown a “convincing mosaic.”
  • Smith v. Lockheed-Martin Corp. supplies the “convincing mosaic” formulation.
  • Tynes v. Fla. Dep't of Juv. Just. (Newsom, J., concurring) is quoted to underscore that “convincing mosaic” is essentially Rule 56 “in operation.”

3. Mixed-motive preservation and waiver principles

  • Quigg v. Thomas Cnty. Sch. Dist. distinguishes single-motive claims (bias as the true reason) from mixed-motive claims (bias as a motivating factor).
  • Yelling v. St. Vincent's Health Sys. is cited for the (still open) question whether a plaintiff must plead a legal theory in the complaint; nonetheless, the panel emphasizes that the brothers did not properly raise mixed motive even at summary judgment.
  • Resol. Tr. Corp. v. Dunmar Corp. and Tallahassee Mem'l Reg'l Med. Ctr. v. Bowen are used to reject underdeveloped arguments (including arguments relegated to a footnote).
  • Access Now, Inc. v. Sw. Airlines Co. supports the rule against considering arguments raised for the first time on appeal.
  • Akridge v. Alfa Ins. Cos. is cited to illustrate that insisting there was “no legitimate reason” for an action is characteristic of single-motive theory.

4. Comparator requirements—formal titles are not enough

  • Jenkins v. Nell reiterates prima facie elements and comparator “all material respects” analysis.
  • Lewis v. City of Union City (“Lewis I”) supplies the controlling comparator standard and admonition that “substantive likeness,” not job labels, matters.
  • Cooper v. S. Co. provides the prima facie test for compensation discrimination; the opinion notes it was overruled on other grounds by Ash v. Tyson Foods, Inc..
  • Jimenez v. U.S. Att'y Gen. and Anthony v. Georgia are cited as examples where identical or similar titles did not make employees valid comparators.

5. Pretext and the employer-belief rule

  • Knox v. Roper Pump Co. defines what kinds of inconsistencies can support a pretext finding.
  • Cordoba v. Dillard's Inc. rejects speculation and conclusory assertions as insufficient for pretext.
  • Smelter v. S. Home Care Servs. Inc. (quoting Alvarez v. Royal Atl. Devs., Inc.) frames pretext around the decisionmaker’s beliefs, not whether the employee actually did what the employer thought.
  • Nix v. WLCY Radio/Rahall Commc'ns and Pennington v. City of Huntsville (quoting Combs v. Plantation Patterns) reinforce that courts do not second-guess business judgment absent unlawful motive.
  • Tidwell v. Carter Prods. is used to explain that adding a consistent reason is not “shifting” in the way that suggests mendacity; Schuster v. Lucent Techs., Inc. is cited similarly (from the Seventh Circuit).

6. Decisionmaker requirement and stray remarks

  • Rowell v. BellSouth Corp. (quoting Steger v. Gen. Elec. Co.) supports disregarding discriminatory statements by nondecisionmakers or statements unrelated to the decisional process.
  • Ross v. Rhodes Furniture, Inc., Scott v. Suncoast Beverage Sales, Ltd., and Rojas v. Florida are cited for the limited probative value of remote, isolated, or attenuated comments absent other evidence of pretext.

7. Policy deviations as circumstantial evidence

  • Morrison v. Booth is cited for the proposition that departures from procedures may be suggestive of discrimination.
  • Springer v. Convergys Customer Mgmt. Grp. Inc. (quoting Randle v. City of Aurora) limits that idea: failure to follow internal procedures does not necessarily suggest discriminatory intent.

8. ADEA burden and evidentiary weakness

  • Sims v. MVM, Inc. is cited to reject weak or non-existent age-bias inferences as insufficient to meet the plaintiff’s burden.

9. Taxation of costs under § 1920

  • Arcadian Fertilizer, L.P. v. MPW Indus. Servs., Inc. and Maris Distrib. Co. v. Anheuser-Busch, Inc. define abuse-of-discretion review for costs and the rule that § 1920 caps taxable costs.
  • Manor Healthcare Corp. v. Lomelo is cited for the presumption in favor of costs; the opinion also references Fed. R. Civ. P. 54(d)(1).
  • U.S. E.E.O.C. v. W&O, Inc. supports taxing deposition-related costs when “necessarily obtained for use in the case.”
  • United States v. Lopez, United States v. Frazier, and Cook ex rel. Est. of Tessier v. Sheriff of Monroe Cnty. are invoked to describe the breadth of discretion and what constitutes abuse of discretion.

B. Legal Reasoning

1. Compensation discrimination: comparators must be substantively alike

The court affirmed dismissal of Larry and Freddie’s compensation claims because they relied almost exclusively on a spreadsheet showing titles/classifications, race, and pay, without evidence of substantive similarity (skills, licensure, experience, duties, supervisors, or work history). Citing Lewis v. City of Union City (“Lewis I”), the panel emphasized that “formal labels” are insufficient; the comparison must reflect “substantive likeness.” Without “meaningful comparator analysis,” the prima facie case failed, and the record contained no additional circumstantial evidence to form a “convincing mosaic.”

2. Termination discrimination: legitimate reason offered; plaintiffs failed to show pretext or a mosaic

Even assuming the prima facie step could be met, the employer produced evidence of a legitimate reason: a perceived decline in work ethic (lateness, long lunches, lack of diligence). Under the Ismael v. Roundtree framing (drawing from St. Mary's Honor Ctr. v. Hicks), the presumption fell away and the question became whether the full record supported an inference of discriminatory intent.

The brothers’ primary pretext response—that they were not actually late from lunch—failed because the pertinent question is the decisionmaker’s belief (Smelter v. S. Home Care Servs. Inc., quoting Alvarez v. Royal Atl. Devs., Inc.). They also failed to show:

  • Decisionmaker linkage: alleged racist comments by supervisor Lee Dubberly were not attributed to the decisionmaker; the record supported that Dick Shea made the sending-home/termination decision (Rowell v. BellSouth Corp.).
  • Procedural deviation + race-based disparity: an alleged “three strikes” policy deviation, without evidence it was bent for white employees and not Black employees, did not establish pretext (Morrison v. Booth; limited by Springer v. Convergys Customer Mgmt. Grp. Inc.).
  • Comparator discipline evidence: Chester’s comparator (a white crane operator allegedly late to lunch) lacked the “all material respects” details required by Lewis v. City of Union City (“Lewis I”).
  • Stray remarks: Dick Shea’s isolated, remote racial remarks—without other evidence of discriminatory causation—were insufficient to show pretext under Ross v. Rhodes Furniture, Inc., Scott v. Suncoast Beverage Sales, Ltd., and Rojas v. Florida.

3. ADEA termination claims: no evidence tying the action to age

Larry and Chester largely recycled the same pretext points from the race claims. The panel found nothing in the record suggesting age, rather than work-ethic concerns, motivated the decision, invoking Sims v. MVM, Inc. to reject speculative or weak age-bias inferences.

4. Mixed-motive theory: must be fairly presented

The panel rejected any attempt to pivot to a mixed-motive theory on appeal. While acknowledging Quigg v. Thomas Cnty. Sch. Dist. and the doctrinal distinction between single- and mixed-motive claims, it held the brothers did not fairly raise mixed-motive in the district court—especially where it appeared only in a footnote without application—thereby forfeiting it under Resol. Tr. Corp. v. Dunmar Corp., Tallahassee Mem'l Reg'l Med. Ctr. v. Bowen, and Access Now, Inc. v. Sw. Airlines Co..

5. Judicial estoppel: not reached

Although the district court later applied judicial estoppel after trial testimony purportedly conflicted with summary-judgment representations about Larry’s duties, the Eleventh Circuit affirmed summary judgment on the merits and expressly found it unnecessary to address whether judicial estoppel was properly invoked.

6. Costs: discretion within an unresolved § 1920 boundary

On costs, the court treated the key question as whether the district court exceeded § 1920. Because § 1920(2) allows costs for “printed or electronically recorded transcripts necessarily obtained for use in the case,” and because Eleventh Circuit precedent had not “delineated” whether condensed transcripts, disks, and certain exhibit-handling charges fit within that category, the panel found no abuse of discretion where district courts are split and the lower court relied on U.S. E.E.O.C. v. W&O, Inc.. The challenge to expedited transcript costs was deemed unpreserved because it was not raised in objections to the bill of costs.

C. Impact

  • Reinforcement of the post-rebuttal posture: The opinion operationalizes Ismael v. Roundtree by emphasizing that, once the employer presents a legitimate reason, the analytical spotlight shifts away from burden-shifting mechanics to Rule 56’s total-record inquiry (“convincing mosaic”).
  • Comparator rigor in pay cases: Employees relying on pay spreadsheets and titles alone are unlikely to survive summary judgment; litigants should expect to need evidence of actual job duties, qualifications, experience, and supervisory structure (Lewis v. City of Union City (“Lewis I”)).
  • Pretext focus on employer belief: Disputes about whether the employee actually committed the infraction may be insufficient if the decisionmaker’s belief is supported and not shown to be fabricated (Smelter v. S. Home Care Servs. Inc.; Alvarez v. Royal Atl. Devs., Inc.).
  • Mixed-motive must be litigated, not hinted: The opinion serves as a warning that mixed-motive theories cannot be preserved by passing reference or footnote; they require developed presentation and application in the district court.
  • Costs disputes remain fact- and discretion-heavy: Where § 1920’s text is ambiguous and circuit precedent is not definitive, cost awards for modern deposition formats and exhibit-management charges may be upheld absent a clear legal error.

4) Complex Concepts Simplified

  • McDonnell Douglas framework: A common method for proving discrimination with circumstantial evidence: (1) plaintiff makes an initial showing; (2) employer gives a lawful reason; (3) plaintiff shows that reason is a cover for discrimination.
  • “Drops out” after rebuttal: Once the employer produces a legitimate reason, the special presumption of discrimination disappears, and the court asks the ordinary question: could a reasonable jury, on the whole record, find discrimination?
  • “Convincing mosaic”: Not a separate legal test so much as a way to describe whether enough circumstantial evidence exists—taken together—to allow an inference of intentional discrimination.
  • Comparator: Another employee used as a benchmark. Under Lewis v. City of Union City (“Lewis I”), the comparator must be similarly situated “in all material respects,” which usually demands evidence beyond shared job titles.
  • Pretext: Proof that the employer’s stated reason is not the real reason. It can be shown by contradictions or implausibilities, but not by speculation.
  • Single-motive vs. mixed-motive: Single-motive requires showing discrimination was the real reason; mixed-motive requires showing discrimination was one motivating factor among others (Quigg v. Thomas Cnty. Sch. Dist.).
  • Judicial estoppel: A doctrine that can prevent a party from taking inconsistent positions in litigation; here it was discussed procedurally but not decided on appeal.
  • Taxable costs (§ 1920): Limited categories of litigation expenses (separate from attorneys’ fees) that a prevailing party can recover; deposition transcript costs are often taxable when “necessarily obtained for use in the case.”

5) Conclusion

The Eleventh Circuit’s decision affirms summary judgment where plaintiffs lacked substantively comparable comparators for compensation claims and could not show that the employer’s work-ethic rationale for termination was a cover for race or age bias. It underscores, consistent with Ismael v. Roundtree, that once an employer offers a legitimate reason, the burden-shifting framework recedes and the decisive question is whether the record as a whole permits a reasonable inference of discrimination. The opinion also illustrates strict preservation rules for mixed-motive theories and a deferential, statute-bounded approach to modern deposition-related costs under § 1920.