Post-Ismael Summary Judgment Rule: Once an Employer Produces a Legitimate Reason, McDonnell Douglas Drops Out and Plaintiffs Must Show a “Convincing Mosaic” Beyond Job Titles

1. Introduction

This consolidated employment-discrimination appeal arose from the termination of three African American brothers—Larry Coleman, Chester Coleman, and Freddie Seltzer—who worked for decades at Morris-Shea Bridge Company, Inc. (“MSB”), a heavy construction contractor specializing in deep foundation work. The brothers were over age fifty at the time of their April 2017 separation from MSB, which followed a dispute on a “special project” at the home of MSB’s president, Richard J. Shea, Jr. (“Dick Shea”).

The key issues on appeal were:

• Whether summary judgment was properly granted against (i) Larry and Freddie’s race-based compensation claims (Title VII and 42 U.S.C. § 1981), (ii) all three brothers’ race-based termination claims (Title VII and § 1981), and (iii) Larry and Chester’s age-based termination claims (ADEA).
• Whether the district court properly applied judicial estoppel retroactively to claims already adjudicated at summary judgment (an issue the Eleventh Circuit ultimately did not need to reach).
• Whether the district court abused its discretion in awarding prevailing-party costs under 28 U.S.C. § 1920 (particularly deposition-related costs such as condensed transcripts, disks, and exhibit handling).

2. Summary of the Opinion

The Eleventh Circuit affirmed across the board.

• Compensation discrimination: Larry and Freddie failed to identify valid comparators “similarly situated in all material respects.” The record (titles, classifications, race, and pay) was insufficient to establish a prima facie case, and it likewise failed to supply a “convincing mosaic” of discrimination.
• Race-based termination: Even assuming a prima facie case, MSB produced evidence of a legitimate reason (declining work ethic, including perceived extended lunch breaks). The plaintiffs failed to show pretext or otherwise assemble a “convincing mosaic” of discriminatory intent.
• Age-based termination (ADEA): Larry and Chester similarly failed to show the proffered reason was pretext for age bias; the record contained no meaningful age-related evidence.
• Mixed-motive theory: The court rejected the contention that mixed-motive analysis displaced McDonnell Douglas because the plaintiffs did not properly raise a mixed-motive theory below; a footnote was insufficient preservation.
• Judicial estoppel: The court expressly declined to reach judicial estoppel because affirmance on summary judgment made it unnecessary.
• Costs: No abuse of discretion in taxing deposition-related costs, particularly where binding precedent did not clearly resolve whether certain items were taxable under § 1920(2), district courts were split, and some objections were not preserved.

3. Analysis

3.1. Precedents Cited (and How They Shaped the Decision)

A. Summary judgment baseline and burden-shifting as “procedural device”

• Hill ex rel. BHJ v. Cundiff and Hallmark Devs., Inc. v. Fulton Cnty.: supplied the de novo standard and Rule 56 frame—viewing facts in the nonmovant’s favor and granting summary judgment only if no genuine issue of material fact exists.
• McDonnell Douglas Corp. v. Green: provided the traditional three-step order of proof (prima facie case → legitimate reason → pretext) for circumstantial Title VII claims.
• St. Mary's Honor Ctr. v. Hicks: emphasized that McDonnell Douglas is a “procedural device” and does not supplant Rule 56—an important premise for the court’s later reliance on Ismael v. Roundtree.
• Standard v. A.B.E.L. Servs., Inc.: established that Title VII and § 1981 use the same analytical framework, allowing the court to analyze those claims together.

B. The opinion’s central methodological move: Ismael v. Roundtree and the “drop out” concept

• Ismael v. Roundtree: the court treated Ismael as clarifying the mechanics of summary judgment. Once the employer offers evidence of a legitimate, nondiscriminatory reason, the McDonnell Douglas presumption “drops out,” and the question becomes whether the record (viewed favorably to plaintiff) permits a reasonable inference of discrimination—often framed as a “convincing mosaic.”
• Smith v. Lockheed-Martin Corp.: supplied the “convincing mosaic of circumstantial evidence” formulation that Ismael uses as the post-rebuttal inquiry.
• Tynes v. Fla. Dep't of Juv. Just.: quoted for the proposition that “convincing mosaic” is essentially Rule 56 in operation, reinforcing that this is not a separate doctrinal test but a way of describing ordinary summary judgment evaluation.

C. Mixed-motive: not just a doctrinal option, but a preservation problem

• Quigg v. Thomas Cnty. Sch. Dist.: recognized mixed-motive as distinct from single-motive and stated that McDonnell Douglas is not applicable to mixed-motive claims based on circumstantial evidence.
• Yelling v. St. Vincent's Health Sys.: cited for the “open question” whether a plaintiff must plead a mixed-motive theory in the complaint, but used here mainly to frame that the plaintiffs still had to raise it properly at summary judgment.
• Resol. Tr. Corp. v. Dunmar Corp., Tallahassee Mem'l Reg'l Med. Ctr. v. Bowen, and Access Now, Inc. v. Sw. Airlines Co.: supplied the procedural principle that arguments not fairly presented to the district court (e.g., relegated to a footnote) are not preserved and will not be considered on appeal.
• Akridge v. Alfa Ins. Cos.: cited to help distinguish single-motive (bias as the “true reason”) from mixed-motive in practice; the plaintiffs’ “no legitimate reason” posture was treated as single-motive.

D. Comparator rigor in compensation claims

• Cooper v. S. Co. (overruled on other grounds by Ash v. Tyson Foods, Inc.): provided the compensation prima facie elements, including the need for similarly situated comparators outside the protected class who received higher compensation.
• Lewis v. City of Union City [hereinafter Lewis I]: supplied the controlling comparator standard—comparators must be similarly situated “in all material respects,” with “substantive likeness” rather than reliance on “formal labels.”
• Jenkins v. Nell: elaborated typical comparator factors (same basic conduct, policies, supervisors, and similar history) and supplied the formulation the opinion applied to both compensation and discipline comparisons.
• Jimenez v. U.S. Att'y Gen. and Anthony v. Georgia: illustrated that shared titles do not make valid comparators where supervisors, policies, rank, or relevant circumstances differ—supporting rejection of plaintiffs’ title-only comparisons.

E. Pretext doctrine and “decisionmaker” focus

• Knox v. Roper Pump Co. and Cordoba v. Dillard's Inc.: framed pretext as requiring more than speculation and permitting evaluation of inconsistencies/implausibilities in the employer’s reason.
• Smelter v. S. Home Care Servs. Inc. (quoting Alvarez v. Royal Atl. Devs., Inc.): anchored the key pretext principle that courts examine the employer’s honest belief, not whether the employee was “actually” late or culpable.
• Rowell v. BellSouth Corp. (quoting Steger v. Gen. Elec. Co.): limited the probative value of discriminatory statements by nondecisionmakers or statements unrelated to the decisional process.
• Nix v. WLCY Radio/Rahall Commc'ns and Pennington v. City of Huntsville (quoting Combs v. Plantation Patterns): reinforced the “no super-personnel department” principle—an employer may terminate for good, bad, mistaken, or no reason absent unlawful discrimination.
• Schuster v. Lucent Techs., Inc. and Tidwell v. Carter Prods.: used to reject a common pretext argument—offering “additional consistent reasons” is not necessarily “shifting reasons” indicative of mendacity.

F. Procedural deviations and progressive discipline

• Morrison v. Booth: recognized that departures from normal procedures may suggest discrimination, but the court distinguished it because plaintiffs here lacked evidence of race-based differential rule-bending.
• Springer v. Convergys Customer Mgmt. Grp. Inc. (quoting Randle v. City of Aurora): supplied the limiting rule that failure to follow internal procedures “does not necessarily” imply discriminatory intent or pretext.

G. Stray remarks as circumstantial evidence

• Ross v. Rhodes Furniture, Inc.: acknowledged that comments remote in time may be circumstantial evidence even if not direct evidence.
• Scott v. Suncoast Beverage Sales, Ltd. and Rojas v. Florida: provided the constraint: isolated remarks unrelated to the challenged decision are generally insufficient, absent additional evidence supporting pretext.
• Alvarez v. Royal Atl. Devs., Inc.: further supported discounting stray remarks (particularly when temporally remote or not tied to the decisional process).

H. ADEA-specific sufficiency

• Sims v. MVM, Inc.: used to underscore that a “weak or non-existent inference of age bias” cannot carry the plaintiff’s burden at summary judgment.

I. Costs: the boundaries of § 1920 and abuse-of-discretion review

• Arcadian Fertilizer, L.P. v. MPW Indus. Servs., Inc.: provided the abuse-of-discretion standard and reiterated that taxation is bounded by § 1920.
• Maris Distrib. Co. v. Anheuser-Busch, Inc.: stated that awarding costs beyond § 1920 is an abuse of discretion; also recognized reasonably necessary expedited transcripts as potentially taxable.
• Manor Healthcare Corp. v. Lomelo: reinforced the presumption in favor of awarding costs to the prevailing party.
• U.S. E.E.O.C. v. W&O, Inc.: recognized that deposition costs may be taxed when necessarily obtained for use in the case, forming the doctrinal anchor for the district court’s taxation of deposition-related expenses.
• United States v. Lopez, United States v. Frazier, and Cook ex rel. Est. of Tessier v. Sheriff of Monroe Cnty.: used to describe the deference inherent in abuse-of-discretion review, especially where law is unsettled and trial courts have a range of permissible conclusions.

3.2. Legal Reasoning

A. The “two-stage” summary judgment approach after rebuttal

A defining feature of the opinion is its explicit, structured use of Ismael v. Roundtree to explain what happens after an employer presents a legitimate reason. In the court’s formulation:

• If a plaintiff establishes a prima facie case and the defendant produces no legitimate reason, summary judgment may be warranted for the plaintiff (or the defendant’s motion must be denied).
• But when the defendant does produce evidence of a legitimate reason, the McDonnell Douglas burdens and presumptions “drop out,” and the court asks the Rule 56 question: whether the total record supports a reasonable inference of discrimination (often described as a “convincing mosaic”).

This matters because it shifts the practical emphasis from “checking boxes” in the prima facie case to whether the plaintiff can point to evidence from which a jury could infer intent—pretext evidence, comparator evidence, discriminatory remarks tied to the decision, disparate enforcement, etc.

B. Compensation discrimination: comparator evidence cannot be “labels-only”

Larry and Freddie’s compensation theory largely rested on a 2016 Census Spreadsheet showing titles/classifications and pay. The court held this insufficient under Lewis I, emphasizing “substantive likeness” over “formal labels.” In concrete terms, the plaintiffs needed evidence about material attributes that commonly determine pay in construction and heavy-equipment contexts—e.g., licensure, skills, assignments (pile-driving versus drilling), experience, and relevant history—rather than merely title and rate.

Even when MSB supplied evidence distinguishing Larry (pile-driving foreman) from alleged drill foremen or mixed-role foremen, plaintiffs did not counter with time-relevant evidence tying Larry to those higher-paid roles during the same period as the spreadsheet. A single reference to supervising drilling “in or around 2014” was too attenuated from the 2016 snapshot relied upon.

C. Termination discrimination: the “honest belief” rule and the decisionmaker inquiry

For termination, MSB’s legitimate explanation was a “decline in work ethic,” including arriving late, not working diligently, and taking too long for lunch. The court treated this as sufficient rebuttal evidence, moving the case into the “convincing mosaic” inquiry.

The plaintiffs’ principal rebuttal—that they were not actually late from lunch—failed because the pretext inquiry, under Smelter v. S. Home Care Servs. Inc. and Alvarez v. Royal Atl. Devs., Inc., focuses on whether the employer honestly believed they were late (or otherwise had work ethic problems), not whether the underlying accusation was correct.

The opinion also tightly policed the “who decided?” question. Plaintiffs attempted to shift focus to Lee Dubberly (alleged to have made racial jokes and called them “boy”). But the record—especially testimony that Dick Shea sent Chester and Freddie home and was understood to have terminated the brothers—supported the conclusion that Dick Shea was the decisionmaker. Under Rowell v. BellSouth Corp. and Steger v. Gen. Elec. Co., comments by nondecisionmakers or comments unrelated to the decisional process do not prove discriminatory intent behind the termination decision.

D. “Shifting explanations” versus “additional consistent reasons”

The court rejected the argument that “late lunch” versus “decline in work ethic” constituted inconsistency demonstrating pretext. It treated “late lunch” as an instance consistent with “declining work ethic,” aligning with the distinction articulated through Schuster v. Lucent Techs., Inc. and Tidwell v. Carter Prods.: explanations must actually be shifting and inconsistent to support an inference of pretext.

E. Progressive discipline: deviation is not enough without discriminatory pattern

Chester and Freddie argued that MSB failed to follow a “three strikes” policy and lacked documented discipline. The court distinguished Morrison v. Booth and relied on Springer v. Convergys Customer Mgmt. Grp. Inc. to hold that procedural deviation alone does not establish discriminatory intent—particularly absent evidence that the employer applied the policy differently based on race (or age).

F. Stray remarks: insufficient alone, especially when remote

The record included testimony that Dick Shea made racially charged remarks to Larry years earlier (e.g., “had a strike against [him] because [he] was black” and “not becoming [n-word] rich”). The court treated these as, at most, circumstantial evidence under Ross v. Rhodes Furniture, Inc. but insufficient, standing alone, to show pretext under Scott v. Suncoast Beverage Sales, Ltd. and Rojas v. Florida, given temporal remoteness and lack of connection to the termination decision.

G. ADEA: absence of age-connected evidence

For Larry and Chester’s ADEA claims, the court found the record “devoid” of evidence suggesting age motivated termination and rejected their attempt to reuse the same pretext arguments from the race claims. Citing Sims v. MVM, Inc., it concluded that a weak inference cannot satisfy the plaintiff’s summary judgment burden in an ADEA case.

3.3. Impact

A. Practical rule for litigants: preservation and theory selection

The opinion underscores that a plaintiff cannot avoid McDonnell Douglas at summary judgment by invoking mixed-motive only in passing. Relying on Resol. Tr. Corp. v. Dunmar Corp. and Access Now, Inc. v. Sw. Airlines Co., the court treated the mixed-motive theory as forfeited where it was not fairly presented and applied to the facts below. The practical impact is clear: mixed-motive must be explicitly argued, not footnoted.

B. Comparator evidence: spreadsheets are not enough

For compensation claims, the decision signals that pay spreadsheets showing title/race/pay are often an evidentiary starting point, not an endpoint. Under Lewis I, plaintiffs must show substantive similarity (duties, skills, relevant experience, and other material determinants of pay). Without that, plaintiffs may lose at both the prima facie stage and the “convincing mosaic” stage.

C. Termination claims: “honest belief” and decisionmaker clarity

The opinion reinforces two recurring barriers at summary judgment:

• Honest belief doctrine: disputing the factual basis for discipline does not show pretext unless there is evidence the employer did not honestly believe its stated reason.
• Decisionmaker focus: discriminatory remarks matter most when made by the decisionmaker and connected to the decision; otherwise they are discounted as non-probative or “stray remarks.”

D. Costs under § 1920(2): deference when law is unsettled

On costs, the court’s affirmance highlights a pragmatic reality: where § 1920’s text does not clearly resolve whether certain deposition-related items are taxable, and where there is no binding Eleventh Circuit precedent directly on point (and district courts diverge), abuse-of-discretion review makes reversal difficult. This may influence litigants to preserve detailed cost objections early and to develop a record on necessity (especially for expedited services).

4. Complex Concepts Simplified

• Rule 56 (summary judgment): the case ends before trial if there is no genuine dispute over facts that matter and the movant is entitled to judgment as a matter of law.
• McDonnell Douglas framework: an evidentiary structure for proving discrimination with circumstantial evidence. It creates a temporary inference of discrimination if the plaintiff meets certain elements, but it is not the ultimate legal standard (Rule 56 is).
• Prima facie case: the initial set of facts that, if shown, permits an inference of discrimination unless rebutted.
• Comparator (“similarly situated in all material respects”): an employee outside the protected class who is comparable in the ways that matter for the decision—duties, supervisors, policies, and relevant history—not just job title.
• Legitimate, nondiscriminatory reason: the employer’s race/age-neutral explanation; once supported by evidence, it removes the McDonnell Douglas presumption.
• Pretext: evidence the employer’s reason is not the real reason—shown through inconsistencies, implausibilities, or proof the reason is not honestly believed.
• “Convincing mosaic”: a way to describe the totality-of-evidence question after rebuttal—whether all circumstantial evidence together could let a jury infer intentional discrimination.
• Mixed-motive: a theory under which unlawful bias need only be “a motivating factor,” even if other lawful reasons also motivated the decision. This case turned on failure to properly raise the theory below.
• Judicial estoppel: a doctrine preventing a party from taking inconsistent positions in litigation. The district court applied it based on perceived conflicts between summary judgment testimony and trial testimony, but the Eleventh Circuit did not reach the issue because it affirmed summary judgment on other grounds.
• Taxable costs under 28 U.S.C. § 1920(2): litigation expenses a prevailing party may recover (distinct from attorney’s fees), including transcripts “necessarily obtained for use in the case.”

5. Conclusion

The Eleventh Circuit’s decision affirms summary judgment for the employer by applying a rigorously evidence-centered approach to discrimination claims: comparator proof must be substantively meaningful, pretext must address the employer’s honest belief and the actual decisionmaker, and stray remarks—especially remote and unconnected to the decisional process—rarely suffice without additional supporting evidence.

Methodologically, the opinion’s most important contribution is its explicit application of Ismael v. Roundtree: once an employer offers evidence of a legitimate reason, McDonnell Douglas presumptions drop away, and the plaintiff must show—under ordinary Rule 56 standards—a “convincing mosaic” supporting an inference of intentional discrimination.

Finally, on costs, the decision illustrates the breadth of district court discretion under § 1920(2) when the taxable status of certain deposition-related expenses is unsettled and objections are not precisely preserved.