Retaliation Requires Decisionmaker Knowledge of Protected Activity, and Appellate Review Requires Challenging Each Independent Ground

1. Introduction

In Ronald King v. Day & Zimmermann NPS, Inc. (11th Cir. Aug. 10, 2026) (unpublished), five Black employees and former employees sued Day & Zimmermann NPS, Inc. (“D&Z”), a power-plant maintenance contractor, alleging race discrimination and retaliation. The plaintiffs pursued: (i) disparate-impact claims under Title VII, (ii) disparate-treatment claims under Title VII and 42 U.S.C. § 1981, (iii) proposed class claims on behalf of similarly situated Black workers, and (iv) retaliation claims (two plaintiffs) under Title VII asserting adverse actions after filing EEOC charges.

The appeal addressed three core issues: (1) whether dismissal with prejudice of the discrimination counts was proper as an impermissible “shotgun pleading,” (2) whether the district court’s dismissal of class allegations should be reversed, and (3) whether summary judgment was proper on the Title VII retaliation claims.

2. Summary of the Opinion

The Eleventh Circuit affirmed across the board. It held:

  • The disparate-treatment and disparate-impact claims were properly dismissed with prejudice because, even after amendment, the complaint remained a shotgun pleading that failed to specify which defendant was responsible for which allegedly unlawful acts.
  • The class-claim dismissal was affirmed because the plaintiffs failed to challenge each independent ground supporting the judgment on appeal.
  • Summary judgment on the retaliation claims was proper because neither plaintiff created a triable issue that the actual decisionmaker knew of the EEOC charge(s)—a necessary predicate to proving retaliation.

3. Analysis

3.1. Precedents Cited

  • Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291 (11th Cir. 2018): Provided the standard of review (abuse of discretion) for Rule 8 shotgun-pleading dismissals and reinforced that shotgun pleadings fail to provide notice of claims and grounds.
  • Weiland v. Palm Beach Cnty. Sheriff's Off., 792 F.3d 1313 (11th Cir. 2015): Supplied the taxonomy of shotgun pleadings; the court applied the “fourth type”—multiple claims against multiple defendants without specifying who did what.
  • Jackson v. Bank of Am., N.A., 898 F.3d 1348 (11th Cir. 2018): Supported dismissal where plaintiffs only “halfheartedly” cure defects and confirmed that dismissal with prejudice is appropriate after fair notice and a meaningful chance to fix.
  • Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678 (11th Cir. 2014): Controlled the class-claims affirmance: where a judgment rests on multiple independent grounds, an appellant must “plainly and prominently” challenge each; passing references abandon issues.
  • Gogel v. Kia Motors Mfg. of Ga., Inc., 967 F.3d 1121 (11th Cir. 2020) (en banc): Clarified Title VII’s anti-retaliation structure—“opposition clause” vs. “participation clause.”
  • Berry v. Crestwood Healthcare LP, 84 F.4th 1300 (11th Cir. 2023): Framed two routes to prove retaliation (modified McDonnell Douglas or “convincing mosaic”) while preserving causation as essential.
  • McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973): The burden-shifting framework referenced for circumstantial retaliation proof (prima facie case, legitimate reason, pretext).
  • Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013): Supplied the governing causation rule for Title VII retaliation—but-for causation.
  • Martin v. Fin. Asset Mgmt. Sys., Inc., 959 F.3d 1048 (11th Cir. 2020): Crucial to the retaliation analysis: the decisionmaker must actually know of the protected activity; speculation cannot substitute for evidence.
  • Gould v. Interface, Inc., 153 F.4th 1346 (11th Cir. 2025): Supported forfeiture principles—litigants cannot “reverse course” on appeal by changing factual predicates (e.g., identifying a new decisionmaker) and demanding a different inquiry.
  • MSP Recovery Claims, Series LLC v. United Auto. Ins. Co., 60 F.4th 1314 (11th Cir. 2023): Reinforced that plaintiffs may not raise new claims in summary judgment briefing (here, an unpleaded opposition-clause retaliation theory).

3.2. Legal Reasoning

(A) Shotgun pleading dismissal (Rule 8) and why “who did what” mattered

Applying Vibe Micro, Inc. v. Shabanets and Weiland v. Palm Beach Cnty. Sheriff's Off., the court focused on whether the complaint gave D&Z adequate notice of the factual grounds for each claim and the defendant(s) responsible for each act. The court concluded it did not: allegations about hiring criteria (e.g., “prior experience”) and recruitment practices (e.g., word-of-mouth, failure to post openings, refusal to provide applications) were “mashed together” across multiple defendants (D&Z and unions), obscuring attribution and making it impossible to determine which acts underlay D&Z’s liability.

The plaintiffs’ attempted fixes—labeling counts as against D&Z only and asserting a “joint” referral/selection system—did not cure the deficiency because the complaint still lacked supporting facts explaining the relationships and contracts (including references to “Southern Company” and unnamed “other companies”). Under Jackson v. Bank of Am., N.A., after one dismissal without prejudice that подробно explained defects, the second failure justified dismissal with prejudice.

(B) Class claims: the “independent grounds” trap on appeal

The district court had rejected the class allegations on two independent bases: (1) the First Amended Complaint was a shotgun pleading, and (2) the class allegations were implausible on the merits. On appeal, the plaintiffs did not meaningfully challenge the shotgun-pleading basis in their opening brief, offering only passing references. Under Sapuppo v. Allstate Floridian Ins. Co., failing to “plainly and prominently” contest each independent ground constitutes abandonment, requiring affirmance. The court also rejected any attempt to cure this omission in a reply brief, as Sapuppo deems that too late.

(C) Retaliation: decisionmaker knowledge as a necessary link in but-for causation

For both retaliation claims, the court treated causation as unavoidable under Univ. of Tex. Sw. Med. Ctr. v. Nassar (but-for causation) and Martin v. Fin. Asset Mgmt. Sys., Inc. (decisionmaker knowledge required). Whether proceeding via McDonnell Douglas Corp. v. Green or a “convincing mosaic” under Berry v. Crestwood Healthcare LP, a plaintiff cannot prove retaliatory intent if the person who made the adverse decision did not know about the protected activity.

  • Jones: The court assumed, as the district court did, that Michael Aaron was the relevant decisionmaker. Jones identified no evidence that Aaron knew of the EEOC charge. The fact that the EEOC notified D&Z and that another supervisor “probably” received the charge did not establish Aaron’s knowledge. Jones then attempted to pivot on appeal to claim a different supervisor (Millsap) was the decisionmaker; the court held the argument forfeited under Gould v. Interface, Inc. because it replaced the factual predicates litigated below with “an altogether different inquiry.”
  • Samuel: Samuel conceded the identified decisionmaker (Matt Vick) was unaware of Samuel’s EEOC charge, which ended the causation inquiry under Martin. Samuel’s attempt to recast his claim as “opposition clause” retaliation failed because the complaint pleaded only EEOC filings (participation clause), and new theories cannot be introduced at summary judgment under MSP Recovery Claims, Series LLC v. United Auto. Ins. Co.. Samuel also attempted to switch decisionmakers on appeal, which the court rejected for the same reason it rejected Jones’s pivot.

3.3. Impact

Although designated “NOT FOR PUBLICATION” (and thus not binding precedent), the decision consolidates several practical, recurring Eleventh Circuit themes that can strongly influence litigation strategy:

  • Pleading discipline in multi-defendant employment cases: When employer liability is interwoven with unions, hiring halls, or third-party contracting structures, courts will insist on clear attribution—who adopted which policy, who executed which decision, and why the employer is legally responsible for a third party’s conduct. Vague “joint system” labels without concrete factual architecture invite with-prejudice dismissal after one chance to amend.
  • Appellate briefing as issue-preservation: The opinion underscores that even potentially strong merits arguments can be lost if appellants do not attack every independent basis for the judgment. “Passing references” are insufficient, and reply-brief repairs are foreclosed.
  • Retaliation cases increasingly turn on identifying the true decisionmaker: The court’s approach operationalizes Nassar and Martin: plaintiffs must marshal evidence that the specific decisionmaker knew of the protected activity. Evidence that “the company” received notice may be inadequate absent proof of transmission to the relevant actor.
  • No late-stage theory changes: The paired reliance on Gould v. Interface, Inc. and MSP Recovery Claims, Series LLC v. United Auto. Ins. Co. signals a firm boundary: plaintiffs cannot salvage weak causation by (a) changing who the decisionmaker was on appeal, or (b) adding a new protected-activity theory at summary judgment.

4. Complex Concepts Simplified

  • Shotgun pleading: A complaint written so broadly or confusingly that the defendant (and court) cannot tell which facts support which legal claims, or which defendant supposedly did what. Rule 8 requires a “short and plain statement” that gives fair notice.
  • Disparate treatment vs. disparate impact: Disparate treatment alleges intentional discrimination; disparate impact challenges neutral policies that disproportionately harm a protected group.
  • Opposition clause vs. participation clause (retaliation): “Opposition” covers complaining about discrimination internally (or otherwise opposing it). “Participation” covers filing or participating in EEOC or Title VII proceedings.
  • McDonnell Douglas framework: A structured way to prove retaliation/discrimination with circumstantial evidence: prima facie case → employer’s legitimate reason → plaintiff proves pretext.
  • Convincing mosaic: Another way to prove intent using circumstantial evidence; it does not remove the need to prove causation.
  • But-for causation (retaliation): The employee must show the adverse action would not have happened “but for” retaliatory motive. If the decisionmaker did not know of the protected activity, retaliation cannot be the “but-for” cause.
  • Abandonment/forfeiture on appeal: If you do not properly argue an issue in the opening brief, it is treated as abandoned. If you did not raise a position below (or you change your factual theory on appeal), it is typically forfeited.

5. Conclusion

The Eleventh Circuit’s decision reinforces three high-stakes procedural and substantive lessons: (1) multi-defendant discrimination complaints must clearly attribute conduct and policies to specific defendants, or risk with-prejudice dismissal after a warned amendment; (2) appellants must challenge every independent ground supporting a judgment, or affirmance follows by abandonment rules; and (3) Title VII retaliation claims live or die on evidence that the actual decisionmaker knew of the protected activity—plaintiffs cannot cure that gap by speculation, by shifting the identity of the decisionmaker on appeal, or by adding new protected-activity theories at summary judgment.