Date: Mar 3, 2026

When the Employer Rebuts, McDonnell Douglas “Drops Out”: Plaintiffs Must Prove a Convincing Mosaic (and Properly Raise Mixed-Motive) to Survive Summary Judgment

Introduction

In Larry Coleman v. Morris-Shea Bridge Company, Inc. (11th Cir. Feb. 27, 2026) (unpublished), the Eleventh Circuit affirmed summary judgment for a construction contractor and its executives on race- and age-discrimination claims brought by three long-time African American employees (two brothers and a third brother-in-law, collectively “Appellants”). The case also involved (i) a post-summary-judgment judicial-estoppel order entered after testimony at an FLSA trial, and (ii) a costs award.

The core merits disputes were familiar to employment litigation: whether plaintiffs identified proper comparators for pay disparities, whether the employer’s stated reason for termination (a perceived decline in work ethic, including extended lunches) was pretext for discrimination, and whether circumstantial evidence otherwise created a triable inference of intentional discrimination.

The decision’s practical significance lies in its application of the Eleventh Circuit’s then-recent clarification in Ismael v. Roundtree: once an employer produces evidence of a legitimate, non-discriminatory reason, the McDonnell Douglas apparatus no longer controls the summary-judgment outcome; the plaintiff must point to record evidence—often framed as a “convincing mosaic”—that would permit a jury to infer discrimination under ordinary Rule 56 principles. The panel also reiterated that mixed-motive theories must be meaningfully presented to the district court (not buried in a footnote), and it upheld a costs award where § 1920’s scope was unsettled and objections were not preserved.

Summary of the Opinion

Race discrimination—compensation (Title VII and § 1981): Affirmed summary judgment because the plaintiffs relied primarily on titles and pay rates from a spreadsheet and failed to show comparators were “similarly situated in all material respects.” Absent a prima facie case (and absent other circumstantial evidence), no triable inference existed.
Race discrimination—termination (Title VII and § 1981): Even assuming a prima facie case, the employer presented a legitimate reason (perceived decline in work ethic). Plaintiffs failed to show pretext or otherwise present a “convincing mosaic.” Alleged racist remarks were too isolated/remote and unconnected to the decisional process to carry the case without additional evidence.
Age discrimination—termination (ADEA): Assuming a prima facie case, the same legitimate reason applied; plaintiffs produced no evidence tying the decision to age and largely recycled race-pretext arguments.
Mixed-motive: The court rejected plaintiffs’ attempt to reframe the case as mixed-motive on appeal because the theory was not fairly presented below.
Judicial estoppel: The panel explicitly declined to reach the issue because it affirmed summary judgment on the discrimination claims.
Costs (§ 1920 / Rule 54): Affirmed taxing certain deposition-related costs (condensed transcripts/disks, exhibit-handling charges, and expedited transcripts), emphasizing the abuse-of-discretion standard, lack of binding precedent on some categories, and failure to preserve objections.

Analysis

Precedents Cited

1) Summary-judgment baseline

The panel grounded its review in standard Rule 56 principles, citing Hill ex rel. BHJ v. Cundiff (de novo review; view facts/inferences favorably to the nonmovant) and Hallmark Devs., Inc. v. Fulton Cnty. (summary judgment when no genuine dispute of material fact and movant entitled to judgment as a matter of law). This framing mattered because the court treated the discrimination frameworks as tools operating within—not replacing—Rule 56.

2) The McDonnell Douglas framework—and what remains after rebuttal

The court restated the classic burden-shifting structure from McDonnell Douglas Corp. v. Green and the prima facie elements as articulated in Jenkins v. Nell. It then emphasized, via St. Mary’s Honor Ctr. v. Hicks, that McDonnell Douglas is a “procedural device” and does not supplant Rule 56.

The key interpretive move is the panel’s reliance on Ismael v. Roundtree (2025), which it characterized as clarifying summary-judgment operation: once the employer produces evidence of a legitimate reason, the McDonnell Douglas “presumption and burdens” are “no longer relevant” and “drop out of the picture” (quoting Hicks). The plaintiff may still survive summary judgment, but only by pointing to record evidence—often described as a “convincing mosaic”—from which a jury could infer intentional discrimination. The panel linked this to Smith v. Lockheed-Martin Corp. (the “convincing mosaic” articulation) and noted, with Tynes v. Fla. Dep’t of Juv. Just. (Newsom concurrence), that the “convincing mosaic” is essentially Rule 56 in action.

The opinion also cited Yelling v. St. Vincent’s Health Sys. to place pretext evidence within the broader set of circumstantial evidence that might form a mosaic.

3) Title VII and § 1981 parity

By citing Standard v. A.B.E.L. Servs., Inc., the panel reaffirmed that Title VII and § 1981 race-discrimination claims share the same proof requirements and analytical framework, allowing the court to apply the same comparator and pretext principles across both statutory vehicles.

4) Mixed-motive: availability, but must be raised

The panel correctly identified the two theories discussed in Eleventh Circuit law—single-motive and mixed-motive—citing Quigg v. Thomas Cnty. Sch. Dist. for the proposition that mixed-motive claims require proof that bias was a motivating factor (not necessarily the sole reason), and that McDonnell Douglas does not apply to mixed-motive circumstantial-evidence cases.

But relying on preservation principles from Resol. Tr. Corp. v. Dunmar Corp., Tallahassee Mem’l Reg’l Med. Ctr. v. Bowen, and Access Now, Inc. v. Sw. Airlines Co., the panel refused to entertain mixed-motive because it was not fairly presented to the district court: any mention was relegated to a footnote and lacked case-specific application. The citation to Akridge v. Alfa Ins. Cos. reinforced the idea that insisting there was “no legitimate reason” tracks single-motive logic.

5) Comparator evidence for compensation: “all material respects”

For the compensation claims, the panel cited Cooper v. S. Co. for prima facie elements (and noted Ash v. Tyson Foods, Inc. overruled Cooper on other grounds), then centered the comparator analysis on Lewis v. City of Union City (“Lewis I”) and its “similarly situated in all material respects” standard. Jenkins v. Nell supplied common comparator indicia (same basic conduct, same policies, same supervisors, shared history).

The panel’s treatment of “labels versus substance” draws directly from Lewis I (“valid comparison turns not on formal labels, but rather on substantive likeness”). It then illustrated the point with recent comparator rejections in Jimenez v. U.S. Att’y Gen. and Anthony v. Georgia (same general title, but material differences defeated comparability).

6) Pretext, decisionmakers, and stray remarks

The court invoked multiple pretext/causation touchstones:

Knox v. Roper Pump Co. (pretext may be shown through weaknesses/implausibilities/inconsistencies in the employer’s reason).
Cordoba v. Dillard’s Inc. (pretext cannot rest on speculation, conclusory assertions, or merely colorable evidence).
Smelter v. S. Home Care Servs. Inc. and Alvarez v. Royal Atl. Devs., Inc. (pretext focuses on the employer’s honest belief, not whether the underlying facts were objectively true).
Rowell v. BellSouth Corp. (and Steger v. Gen. Elec. Co.) (nondecisionmaker statements or statements unrelated to the decisional process do not prove discriminatory intent).
Nix v. WLCY Radio/Rahall Commc’ns and Pennington v. City of Huntsville (quoting Combs v. Plantation Patterns) (courts do not second-guess business judgment; employer may act for good, bad, mistaken, or no reason so long as not discriminatory).
The opinion also cited out-of-circuit and in-circuit “shifting reasons” authorities—Schuster v. Lucent Techs., Inc. (7th Cir.) and Tidwell v. Carter Prods.—to distinguish genuinely inconsistent explanations from permissible elaboration of consistent reasons.

On discriminatory remarks, the panel relied on Ross v. Rhodes Furniture, Inc. (remote/attenuated remarks are not direct evidence but can be circumstantial), yet emphasized Scott v. Suncoast Beverage Sales, Ltd. (isolated remarks generally insufficient absent additional evidence) and Rojas v. Florida (isolated, unrelated comments insufficient to show pretext by themselves). This line of cases supported the court’s conclusion that alleged racially charged comments, occurring years earlier and not linked to the termination decision, could not carry summary judgment alone.

7) Progressive discipline / deviations from procedure

Appellants argued the employer deviated from a “three strikes” discipline approach. The panel acknowledged Morrison v. Booth (departures from normal procedures can suggest discrimination), but distinguished it because Morrison involved evidence the employer broke rules for a white comparator but not for the plaintiff. Here, the panel cited Springer v. Convergys Customer Mgmt. Grp. Inc. (quoting the Tenth Circuit in Randle v. City of Aurora) for the principle that failure to follow internal procedures does not necessarily imply discriminatory intent or pretext without evidence of discriminatory application.

8) ADEA causation gap

For the age claims, the panel cited Sims v. MVM, Inc. to underscore that weak or nonexistent age-bias inferences cannot carry the plaintiff’s burden. The court found the record lacked age-linked evidence, and plaintiffs’ reliance on race-pretext arguments did not bridge that gap.

9) Costs: § 1920, Rule 54, and abuse of discretion

The costs discussion relied on:

Arcadian Fertilizer, L.P. v. MPW Indus. Servs., Inc. (abuse-of-discretion review; costs limited by § 1920).
Maris Distrib. Co. v. Anheuser-Busch, Inc. (abuse if costs exceed § 1920; expedited transcripts can be taxable if reasonably necessary).
Rule 54(d)(1) and Manor Healthcare Corp. v. Lomelo (presumption favoring costs).
U.S. E.E.O.C. v. W&O, Inc. (deposition costs may be taxed 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. (deference and “range of possible conclusions” under abuse-of-discretion review).

The panel upheld taxing condensed transcripts/disks and exhibit-handling charges because § 1920(2)’s text did not clearly resolve those categories, Eleventh Circuit precedent had not squarely delineated them, and district courts were split—making it difficult to call the district court’s choice a “clear error of judgment.” It also upheld expedited transcript costs because the specific “expedite” objection was not preserved below.

Legal Reasoning

1) Compensation claims: comparator rigor, not spreadsheet symmetry

The court’s compensation analysis turned on comparator specificity. Appellants relied on a spreadsheet listing race, classification/title, and pay rates, then argued that white employees with similar titles were paid more. The panel rejected this as insufficient under Lewis I because similarity is “substantive,” not nominal. Without evidence about licensure, skill, job duties, supervision, or history, the plaintiffs offered only a “label-and-rate” comparison.

Notably, the panel treated the failure to establish a prima facie comparator showing as doubly consequential: (i) it defeated the presumption of discrimination, and (ii) because plaintiffs offered no other circumstantial evidence beyond the defective comparisons, there was no “convincing mosaic” to save the claim under Rule 56.

2) Termination claims: honest-belief doctrine + decisionmaker focus + insufficiency of isolated remarks

Even when assuming a prima facie case, the court held the employer rebutted it with evidence of a legitimate reason: perceived decline in work ethic, supported by testimony about lateness, long lunches, and lack of diligence. From there, consistent with Ismael, the question was whether the record permitted a jury inference of discrimination.

The plaintiffs’ central pretext theory was factual dispute: they claimed they were not late from lunch. The panel applied the honest-belief principle (Smelter / Alvarez): pretext asks whether the decisionmaker believed the reason, not whether the underlying conduct occurred. The record, in the panel’s view, showed the president (Dick Shea) believed they returned late.

The plaintiffs also tried to shift the “decisionmaker” to an immediate supervisor who allegedly used racially demeaning language. The panel rejected this pivot as unsupported by the record, and, under Rowell/Steger, treated nondecisionmaker remarks as irrelevant to proving discriminatory intent in the challenged decision.

Finally, while the panel acknowledged that racially charged comments can be circumstantial evidence (Ross), it held that the alleged remarks were isolated, remote in time, and not tied to the termination decision—making them insufficient without additional evidence of pretext (Scott; Rojas).

3) Discipline-policy deviation: without a comparator, procedure arguments rarely carry the day

Appellants argued the employer deviated from a progressive discipline practice. The panel’s response reflects a common evidentiary theme: policy deviations suggest discrimination chiefly when paired with differential application to similarly situated employees. By distinguishing Morrison and invoking Springer, the court held that an internal-procedure departure, standing alone, did not reasonably imply racial animus or falsity of the employer’s stated reason.

4) Age claims: pretext recycling is not age evidence

The ADEA claims failed because the record contained no age-linked facts. The plaintiffs essentially recycled the same “we weren’t late” and “policy deviation” points. The panel found that even if those points cast doubt on the lunch narrative, they did not support an inference that age motivated the decision—consistent with Sims.

5) Mixed-motive: doctrinally available, procedurally forfeited

The panel’s mixed-motive holding is less about the merits and more about litigation discipline. Even though Quigg provides an alternative path for plaintiffs, the court emphasized that theories must be meaningfully presented to the district court. A footnote reference, without application to evidence and elements, was treated as insufficient to preserve the argument.

6) Costs: deference where the statute is ambiguous and objections are unpreserved

The cost-taxation analysis illustrates a pragmatic appellate posture: where § 1920(2) does not clearly answer whether certain deposition add-ons (condensed transcripts, disks, exhibit management) are taxable, and no binding Eleventh Circuit case resolves the point, the district court’s selection among competing district-court approaches is unlikely to be deemed an abuse of discretion. Separately, the panel’s treatment of expedited transcripts turned on preservation: objections not made to the bill of costs were not credited on appeal.

Impact

Reinforced post-Ismael practice at summary judgment: Plaintiffs should expect that once a defendant produces a legitimate reason, courts will focus less on formal burden-shifting mechanics and more on whether the full record supports a jury inference of discrimination. In practice, that means developing evidence beyond “not true” arguments—e.g., differential treatment, inconsistent enforcement tied to protected status, decisionmaker bias connected to the decision, or statistically/contextually meaningful patterns.
Comparator development is outcome-determinative in pay cases: The opinion underscores that spreadsheets showing race/title/pay are rarely enough without proof of “material respects” comparability (duties, skills, supervision, history). Plaintiffs will need discovery targeted to job content and qualifications, not merely HR labels.
Mixed-motive theories must be litigated, not hinted: The decision signals that plaintiffs who want the benefits of mixed-motive doctrine must clearly raise it and connect it to record facts at summary judgment.
Stray remarks remain a limited tool: Unless linked to the decisional process or supported by additional evidence, isolated comments—especially remote in time—will not usually defeat summary judgment.
Costs practice: In the Eleventh Circuit, where categories of deposition-related costs are unsettled, prevailing parties may obtain them if the district court views them as within § 1920(2) and the opponent does not preserve strong, specific objections.
Unpublished but instructive: Although “NOT FOR PUBLICATION” limits precedential force, the opinion is a useful roadmap for how Eleventh Circuit panels may operationalize Ismael and preservation rules in employment cases.

Complex Concepts Simplified

McDonnell Douglas burden-shifting: A method to organize proof in discrimination cases using circumstantial evidence: (1) plaintiff shows a prima facie case; (2) employer articulates a legitimate reason; (3) plaintiff shows the reason is pretext. After the employer produces a legitimate reason, the presumption of discrimination disappears, and the question becomes whether the evidence as a whole supports a jury finding.
“Similarly situated in all material respects” (comparators): A comparator is a non-protected employee who is meaningfully alike in the ways that matter to the challenged decision—job duties, qualifications, supervisor, policies, and relevant history—so a difference in treatment supports an inference of discrimination. Sharing a job title alone is usually not enough.
“Convincing mosaic”: A way of describing the full collection of circumstantial evidence that, taken together, could allow a jury to infer discriminatory intent—without requiring a rigid checklist. It is essentially the Rule 56 question: can a reasonable jury find discrimination from this record?
Pretext and “honest belief”: Showing pretext is not just proving the employer’s reason was wrong; it often requires showing the employer did not honestly believe it or used it as a cover for discrimination.
Mixed-motive vs. single-motive: In mixed-motive cases, discrimination need only be one motivating factor among others. In single-motive cases, discrimination must be the true reason. Courts generally require parties to clearly present which theory they are pursuing and support it with developed argument and evidence.
Taxable costs under 28 U.S.C. § 1920: Litigation expenses a prevailing party may recover (separate from attorneys’ fees), such as certain transcript costs. If the statute is ambiguous about a cost category and no binding precedent resolves it, appellate courts often defer to the district court’s reasonable judgment—especially absent preserved objections.

Conclusion

The Eleventh Circuit’s decision affirms that, after an employer produces evidence of a legitimate reason, the litigation’s decisive question becomes whether the record—viewed favorably to the plaintiff—still permits a reasonable inference of discrimination. Here, plaintiffs’ comparator showings were too thin for compensation claims, and their termination theories did not overcome the employer’s honest-belief rationale or supply additional circumstantial evidence connecting the decision to race or age. The opinion also serves as a cautionary note on procedure: mixed-motive theories must be squarely raised and argued below, and cost objections must be specifically preserved.