[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-12577

____________________

JULIA MCCREIGHT, 

REBECCA WESTER, 

Plaintiffs-Appellants,

versus

AUBURNBANK, 

AUBURN NATIONAL BANCORPORATION, INC., 

MICHAEL KING, 

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Middle District of Alabama

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2 Opinion of the Court 22-12577

D.C. Docket No. 3:19-cv-00865-RAH-SMD

____________________

Before GRANT, ABUDU, and HULL, Circuit Judges.

GRANT, Circuit Judge:

Title VII prohibits employers from intentionally 

discriminating against their employees based on “race, color, 

religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). That 

seems simple enough. But it has not turned out to be; employment 

discrimination law has grown into a tangle of doctrines, tests, and 

claim types. We are doing our best to clear a path. In recent cases 

we have explained that the McDonnell Douglas order of proof and 

what we have called the “convincing mosaic” approach are just two 

ways to meet the same summary judgment standard: enough 

evidence for a reasonable jury to conclude that illegal 

discrimination occurred. See Tynes v. Florida Dep’t of Juv. Just., 88 

F.4th 939, 943–47 (11th Cir. 2023); Ossmann v. Meredith Corp., 82 

F.4th 1007, 1020 (11th Cir. 2023); Yelling v. St. Vincent’s Health Sys., 

82 F.4th 1329, 1342 (11th Cir. 2023).

Here we clear up two other strands of our case law: sex-plus 

claims and mixed-motive theories of liability. These terms mean 

different things. A sex-plus claim is based on one kind of 

discrimination—sex discrimination—targeting one subclass of a 

sex. Black women and mothers are subcategories of women that 

have been recognized. So too for older women, the relevant 

category here. 

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Mixed-motive discrimination, on the other hand, allows for 

liability when an employment decision motivated by a legitimate

reason—usually poor work performance—is also infected by an 

illegitimate reason—illegal discrimination. So mixed-motive is not 

a theory that more than one illegal motive was at play. Nor is it the 

same thing as a “sex-plus” claim. Indeed, because mixed-motive 

discrimination is a theory of liability, not a type of claim, it need 

not be alleged in the complaint to survive; raising a mixed-motive 

argument by summary judgment offers notice to defendants about 

what to defend, and to courts about what to decide. 

Plaintiff Julia McCreight raised a sex-plus discrimination 

claim, but she did not offer enough evidence for a reasonable jury 

to conclude that her boss fired her because of her sex. We therefore 

affirm summary judgment for the defendants on the sex

discrimination claim. McCreight and co-plaintiff Rebecca Wester’s 

age discrimination claims fail for the same reason—neither woman 

offered enough evidence for a reasonable jury to conclude that she

was fired because of her age. And because both women failed to 

offer evidence, rather than speculation, that their supervisors knew 

about their age or sex discrimination complaints, their retaliation 

claims also fail. 

I.

AuburnBank is a loan originator. Most of the time, it acts as 

a “seller servicer” for Fannie Mae, meaning that it sells loans to 

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Fannie Mae while maintaining the servicing rights.1 AuburnBank 

prefers acting as a seller servicer because that role in the market 

carries the lowest risk. A smaller part of AuburnBank’s business is 

originating loans that it sells to other secondary market investors. 

For these loans, AuburnBank sells both the loan and its servicing 

rights to a third party. Finally, AuburnBank originates a certain 

number of in-house loans, retaining both the loan and its servicing 

rights. 

Fannie Mae requires that loan applicants meet certain 

qualifications. To ensure that these conditions are met, 

AuburnBank requires a number of steps, starting with 

prequalification. This duty falls to mortgage loan originators, who 

prequalify applicants based on unverified information that wouldbe borrowers provide. If everything looks appropriate, the bank 

will send a confirmation letter informing the applicant that she is 

prequalified. But mortgage loan originators are not authorized to 

formally approve any applicants for a loan—that responsibility falls 

to underwriters, who independently vet applicants. If an 

underwriter concludes that a prospective borrower is unqualified

for a Fannie Mae loan, the bank has two choices: it can deny the 

applicant entirely or approve a much riskier in-house loan. 

Regardless of which type of loan the bank approves, would-be 

1 As a loan originator, AuburnBank assesses and approves mortgage loan applications, and then will sell those loans to other investors in what is known as 

the secondary market. Fannie Mae is a secondary market purchaser, meaning 

that it buys loans already approved by lenders like AuburnBank.

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borrowers need to satisfy other conditions before closing. This 

way, the bank can pull the loan if the applicant’s financial picture 

changes right before the closing date. 

Each part of this process can spell disaster for a bank’s 

bottom line if not handled properly: loans approved for borrowers 

who fail to meet the standards of secondary market purchasers like 

Fannie Mae are dramatically riskier. AuburnBank’s disciplinary 

policy reflected the reality that some mistakes are worse than 

others. It generally provided for termination after three formal 

warnings, but immediate termination was possible if an employee 

committed a serious offense. 

McCreight and Wester were fired after committing serious 

errors in the loan-approval process. McCreight worked as a 

mortgage loan originator, and Wester as a loan closer. Both 

women had been employees of AuburnBank for more than twenty 

years and were over sixty years old when they were fired. They 

were ultimately fired by Michael King, who had been hired as the 

mortgage department manager to grow and revitalize the 

department. 

As a mortgage loan originator, McCreight’s job duties 

included originating loans for the bank and prequalifying 

applicants based on the (unverified) information they provided. 

But in the incident that precipitated her firing, instead of 

prequalifying a prospective borrower, McCreight sent him a letter 

announcing that his loan had been approved. The problem was 

that the borrower did not really qualify for the loan, which was 

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denied by the underwriter who later reviewed it. But because of 

McCreight’s approval letter, AuburnBank was still contractually 

bound to issue the loan, which it could not sell to Fannie Mae. This 

error left the bank with a much riskier loan, exposing it to a risk of 

default. 

The confusion arose because McCreight had used an 

outdated standard letter, one that a supervisor had instructed her

to stop using. McCreight claims she was never told about the new 

version, but she received an email discussing the new letter and 

attaching a copy of it. McCreight also claims that her supervisor

gave her permission to continue using the old letter, which the 

supervisor denies.

This was not the first time McCreight had committed a 

serious error. For one, she created a potential conflict of interest 

by being inappropriately involved in one of her family member’s 

loans. She also attempted to change an already locked-in interest 

rate for a different borrower; had she succeeded, the loan would 

have been unsellable to Fannie Mae. Her unauthorized approval 

of the unqualified borrower was the “final straw” for King. 

Like McCreight, Wester was fired after the last of a series of 

errors. For her, it was failing to verify the employment of a loan 

applicant within ten days before closing. Wester was out of the 

office for a medical procedure the Friday before the loan closed. 

Though she could have performed the employment check earlier 

in the week, she failed to do so. After closing was complete, she 

learned that the borrower no longer had a job. But because the 

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loan had already closed, the bank was stuck with it. Wester says 

that she had asked colleagues to take care of it while she was out, 

but she offers no explanation for not doing it herself before her 

procedure. And this was not the first time. In fact, she had already 

been placed on a ninety-day probation for failing to complete her 

work promptly. This failure to verify employment was the 

breaking point for the bank, and with King’s approval Wester was 

fired by one of her supervisors. 

McCreight and Wester see their terminations differently. 

Both contend that AuburnBank and King fired them because they 

were older women and in retaliation for their complaints to human 

resources. King, they point out, terminated four women over the 

age of forty, transferred two women, hired and promoted one 

woman under forty, and hired five men—all within two years. 

Meanwhile, no men were fired or transferred. And according to 

McCreight, King “said he had come to clean house” and wanted to 

“hire younger MLOs”; he once added that McCreight had “been 

here forever.” 

McCreight complained to Laura Carrington, Vice President 

of Human Resources, claiming that King was spreading false 

rumors that she sued the bank, and decrying what she saw as his 

negative treatment of older women. She says she also made similar 

complaints to AuburnBank’s president and vice president, but they 

dispute that contention. Wester also informally complained to 

Carrington twice about the hostile work environment in the 

mortgage department. For her part, Carrington saysthat she spoke 

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with King, but only about McCreight’s complaints about him 

spreading rumors; Carrington says she did not share McCreight’s 

complaints of discrimination, and she denies sharing any of 

Wester’s complaints with King. 

McCreight and Wester sued, raising a wide range of state 

and federal claims: sex-plus-age discrimination under Title VII; age 

discrimination in violation of the Age Discrimination in 

Employment Act and the Alabama Age Discrimination in 

Employment Act; retaliation under both Title VII and the 

ADEA/AADEA; hostile work environment under Title VII and the 

ADEA/AADEA; and a variety of state tort claims including false 

light invasion of privacy and negligent retention/supervision. The 

district court granted summary judgment for AuburnBank and 

King on all counts. McCreight and Wester now appeal only their 

ADEA and AADEA discrimination claims, their retaliation claims, 

and McCreight’s Title VII sex-plus-age discrimination claim. 

II.

We review de novo a district court’s grant of summary 

judgment, “viewing all evidence and drawing all reasonable factual 

inferences in favor of the nonmoving party.” Strickland v. Norfolk S. 

Ry. Co., 692 F.3d 1151, 1154 (11th Cir. 2012). Summary judgment is 

appropriate when a movant shows that there is “no genuine dispute

as to any material fact and the movant is entitled to judgment as a 

matter of law.” Fed. R. Civ. P. 56(a). “A genuine issue of material 

fact exists when the evidence is such that a reasonable jury could 

return a verdict for the non-moving party.” Qui v. Thomas Cnty. 

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Sch. Dist., 814 F.3d 1227, 1235 (11th Cir. 2016) (alteration adopted 

and quotation omitted). 

III.

We begin by addressing McCreight’s sex discrimination 

claim. McCreight says that because she has articulated a sex-plus 

claim, it should be analyzed under a “mixed-motive” theory. This 

is incorrect. To start, a sex-plus claim is not, as McCreight seems 

to think, a claim based on “more than one type of discrimination 

causing the adverse action.” It is a claim based on one kind of 

discrimination—sex discrimination—within a particular subgroup 

of people. 

What’s more, McCreight misunderstands the nature of a 

mixed-motive theory, which allows for Title VII liability when an 

adverse employment action is motivated by some combination of 

legitimate and illegitimate reasons. See 42 U.S.C. § 2000e-2(m). A 

mixed-motive theory is not another way of referring to a sex-plus 

claim or a theory that more than one illegal motive was at play. In 

short, sex-plus-age is a type of employment discrimination claim a 

plaintiff can bring, and mixed-motive is a theory of causation that 

a plaintiff can rely on to support that claim.

McCreight is correct, however, that a district court should 

not dismiss a mixed-motive theory as a failure of a complaint’s 

pleading. Because mixed-motive discrimination is a theory of 

liability, rather than a type of claim, it need not be alleged in the 

complaint to survive. But that does not revive her claim. She did 

not argue a mixed-motive theory at all at the district court level—

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not at summary judgment and not at any time. We therefore 

affirm the grant of summary judgment against McCreight on her 

sex discrimination claim because she did not raise a mixed-motive 

theory, and she did not adequately support her single-motive 

theory. 

A.

Title VII, as we have said, prohibits employment 

discrimination based on a variety of protected characteristics. 42 

U.S.C. § 2000e-2(a)(1). Here, the relevant category is sex. An 

archetypal way to prove sex discrimination under Title VII is to 

show an employer treating an employee of one sex differently than 

employees of the other sex. 

Also cognizable under Title VII are “sex-plus” discrimination 

claims. Jefferies v. Harris Cnty. Cmty. Action Ass’n, 615 F.2d 1025, 1033

(5th Cir. 1980).2 In these cases, the employer does not discriminate 

against all women (or men) but rather treats a subgroup of women 

(or men) differently. Id. at 1033–34. The “plus” refers to nonsex

factors that create the subgroup in which the sex discrimination 

occurs. Singling out only one subgroup of a sex for discriminatory 

treatment thus does not insulate an employer from liability. Id. at 

1034. Otherwise, an employer could “escape violations of Title VII 

2 Decisions of the United States Court of Appeals for the Fifth Circuit “as that 

court existed on September 30, 1981, handed down by that court prior to the 

close of business on that date” are binding precedent in this Circuit. Bonner v. 

City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).

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by adding nonsex factors in creating discriminatory policies.” 

Harper v. Thiokol Chem. Corp., 619 F.2d 489, 492 (5th Cir. 1980). Sex 

discrimination, in short, does not require that an employer 

discriminate against everyone of a particular sex—Title VII comes 

into play even when only a subgroup of employees is treated 

differently based on their sex. 

This conclusion is not a new one. We have said that 

employers “may not apply different standards of treatment to 

women with young children, to married women, or to women 

who are single and pregnant.” Jefferies, 615 F.2d at 1034. The same 

goes for sex discrimination claims when an employer treats black 

female employees differently from black male employees; those 

claims too are cognizable under Title VII. Id.3 All of these claims 

allege sex discrimination within a particular subgroup, which is 

defined by the “plus” factors. 

Sex-plus-age claims likewise have been recognized by this 

Court. See Chambless v. Louisiana-Pac. Corp., 481 F.3d 1345, 1348 

(11th Cir. 2007). In a sex-plus-age case, the basis for the alleged 

discrimination is sex; the age factor’s work is in defining the 

subgroup in which the alleged sex discrimination occurred.4

3 Jefferies held that an employer violated Title VII by discriminating against 

black women—the fact that the employer did not discriminate against black 

males or white females was irrelevant. 615 F.2d at 1034.

4 Some courts have approved sex-plus-age claims because they see them as 

based on a negative sex-based stereotype. See, e.g., Frappied v. Affinity Gaming 

Black Hawk, LLC, 966 F.3d 1038, 1048–49 (10th Cir. 2020). But though such 

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The bottom line is this: because sex-plus-age claims allege 

disparate treatment on the basis of sex, they fall within Title VII. 

And just like any other discrimination claim, sex-plus-age claims 

can be supported through either a single- or mixed-motive theory, 

which we discuss next.

B.

Title VII offers plaintiffs two theories of discrimination: 

single-motive and mixed-motive. Under a single-motive theory, a 

plaintiff “must prove that the ‘true reason’ for an adverse action was 

illegal” bias. Qui, 814 F.3d at 1235, 1237. In other words, we ask 

whether illegal discrimination was the but-for cause of the 

employee’s firing, with the protected trait having “a determinative 

influence” in the employer’s decision. Hazen Paper Co. v. Biins, 507 

U.S. 604, 610 (1993). 

For a mixed-motive theory, on the other hand, the employee 

contends that both legal and illegal reasons motivated her firing. 

Qui, 814 F.3d at 1235, 1239. Under that theory the plaintiff argues 

that a “discriminatory input,” like sex bias, factored into an 

employer’s decision, even if other reasons justified it as well. Id. at 

1241; see also Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 171 (2009); 

Desert Palace, Inc. v. Costa, 539 U.S. 90, 93 (2003). So under a mixedmotive theory, a plaintiff need only show that an illegal reason 

stereotypes may be the reason an employer targets a particular group, they are 

not the reason this discrimination is illegal. The fact that a group of people is 

being treated differently based on sex is the reason. 

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played a part in the decision—not that it had a dispositive role. See 

Qui, 814 F.3d at 1238, 1241. 

Single-motive and mixed-motive are not, we should be clear,

distinct claim types. Id. at 1235 n.4. Instead, they offer alternative 

theories of causation for proving discrimination under Title VII. 

Id. And underlying both theories is the same summary judgment 

standard: whether a plaintiff has provided sufficient evidence for a 

reasonable jury to infer intentional discrimination. See Tynes, 88 

F.4th at 943–47; Qui, 814 F.3d at 1239–40.

Both theories also offer the same potential remedies, which 

include compensatory and punitive damages plus back pay and 

injunctive relief. 42 U.S.C. § 1981a(a)(1). But there is one important 

difference: if a plaintiff prevails under a mixed-motive theory, an 

employer can still avoid damages and certain equitable relief by 

showing that it would have taken the same action even without the 

illegal motivation. Qui, 814 F.3d at 1242; 42 U.S.C. § 2000e5(g)(2)(B). This affirmative defense is known as the mixed-motive 

or same-decision defense. Desert Palace, 539 U.S. at 94–95; Qui, 

814 F.3d at 1242. 

While the same-decision defense restricts the plaintiff’s 

remedies, it does not absolve the employer from liability—

declaratory and injunctive relief, as well as attorney’s fees, remain 

available. Desert Palace, 539 U.S. at 94–95; 42 U.S.C. § 2000e5(g)(2)(B). And if an employer fails to assert, and prove, a samedecision defense, a plaintiff prevailing under a mixed-motive theory 

is entitled to recover the same damages and relief as would be 

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available under a single-motive theory. 42 U.S.C. §§ 2000e-2(a), 

2000e-2(m), 1981a(a)(1). This statutory framework—the singlemotive theory, the mixed-motive theory, and the same-decision 

defense—confronts the reality that discrimination based on 

protected characteristics is illegal whether the employee is topnotch or not. It also evinces Congress’s intention to penalize 

employment discrimination whenever it occurs, without also tying 

the hands of employers who need to effectively manage their 

businesses.

That both single- and mixed-motive theories of liability are 

available does not mean a plaintiff is required to affirmatively plead 

one or the other at the outset of the case.5 The Federal Rules of 

Civil Procedure impose pleading requirements for claims, not 

theories of liability. Fed. R. Civ. P. 8(a); see Johnson v. City of Shelby, 

574 U.S. 10, 11–12 (2014). The single-or-mixed-motive question 

illustrates why; discovery is often necessary for a plaintiff to know 

which causation standard to pursue. Price Waterhouse v. Hopkins,

490 U.S. 228, 247 n.12 (1989), superseded on other grounds by statute, 

42 U.S.C. §§ 2000e-2(m), 2000e-5(g)(2)(B). Perhaps an employee 

will learn that, although discrimination played a role in her firing, 

it was not the only reason for it. 

5 We also made clear that defendants need not plead the same-decision defense 

as an affirmative defense. Pulliam v. Tallapoosa Cnty. Jail, 185 F.3d 1182, 1185 

(11th Cir. 1999). 

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That does not mean, however, that plaintiffs can simply 

allege facts and let the district court figure things out from there. 

We “rely on the parties to frame the issues” by “advancing the facts 

and arguments entitling them to relief.” United States v. Campbell, 

26 F.4th 860, 872 (11th Cir. 2022) (en banc) (quotations omitted). 

So a plaintiff wishing to “prevail on a particular theory of liability” 

must “present that argument to the district court.” Fils v. City of 

Aventura, 647 F.3d 1272, 1284 (11th Cir. 2011). 

But when? So long as the factual basis is properly alleged, an 

employee can raise a mixed-motive theory of liability as late as 

summary judgment. What is important is not when the theory is 

raised, but whether the defendant has enough notice of it. To be 

sure, a district court may reject new theories of liability when they 

are raised alongside new factual allegations such that a change 

would “prejudice the other party in maintaining a defense upon the 

merits.” 5 Charles Alan Wright & Arthur R. Miller, Federal Practice 

& Procedure § 1219 (4th ed. 2023). But without such prejudice, a 

theory of liability raised by a plaintiff cannot be rejected simply 

because she failed to specifically plead it in her complaint. See Palm 

Beach Golf Ctr.-Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245, 

1259–60 (11th Cir. 2015). 

This notice requirement accomplishes several purposes. For 

one, it gives the employer notice about what it is defending against. 

For another, it gives the district court an understanding of what it 

needs to decide and based on what evidence. It would be

remarkably unfair to both district courts and defendants—and 

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wasteful on top of that—to let plaintiffs on appeal spring new 

theories of liability that were not considered or defended against at 

summary judgment.6 This requirement also protects plaintiffs 

because maintaining a single-motive theory prevents employers 

from limiting the available remedies with the same-decision 

defense. 

C. 

We now apply these points to the case before us. McCreight 

brings a sex-plus-age discrimination claim under Title VII. But she 

says that because her claim alleges two motives, sex and age, that 

also makes it an “intersectional” claim, which means it is a mixedmotive claim. And for mixed-motive claims, she says, our 

evidentiary standard is lower, requiring only “bits and pieces” of 

evidence that could lead one to conclude that she was fired because 

of her age and sex.

Respectfully, that is not how this works. We start with 

McCreight’s incorrect assumption that a sex-plus claim is the same 

thing as a mixed-motive claim. As we have explained, mixedmotive is a theory—not a claim. So McCreight is right that she did 

6 To be sure, a mixed-motive theory of discrimination does not require an employee to affirmatively concede that there was a good and legal justification 

for the adverse employment action; most employees, like all human beings, 

may find it hard to believe that there was a good reason for their employer to 

act against them. But the theory must be specifically raised, at least in the 

alternative. 

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not need to allege a mixed-motive theory in her complaint; all that 

she was required to allege was that an adverse employment action 

occurred based on some protected characteristic and the factual 

bases for her claim. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 

514 (2002). She could then raise a mixed-motive theory of liability 

outside her complaint, so long as that theory was not based on new 

factual allegations and was raised before the district court by 

summary judgment. 

The problem for McCreight’s mixed-motive theory is that 

she did not raise it before the district court. A sex-plus-age claim, 

again, is a label for a sex discrimination claim targeting only a 

subset of a protected class. Mixed-motive discrimination is a 

completely different concept—a legal theory for an adverse action 

that had both legitimate and illegitimate motives. So a sex-plus-age 

claim (just like any other sex discrimination claim) can be 

supported with a single-motive or a mixed-motive theory. 

It was up to McCreight to define the contours of her claim—

and she chose single-motive. Though she cited a mixed-motive 

case, Qui, that was not enough. Seegenerally Qui, 814 F.3d 1227. 

McCreight never argued, even in the alternative, that a mix of 

legitimate and illegitimate motives played a role in her firing; 

instead, she claimed that AuburnBank fired her because of her 

status as an older woman, and that any other reason the bank 

offered was pretextual. That is a classic single-motive approach. 

So why did she cite Qui? Perhaps because, as the district 

court suggested, she wrongly perceives the mixed-motive test as 

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easier to prove. As we will reiterate below, that is not the case. 

Mixed-motive theories of discrimination invoke a lessened 

standard of causation, not a diminished standard of proof. 

McCreight is correct that the McDonnell Douglas test has certain 

requirements in this Circuit that can be hard to meet. Especially 

comparator evidence. See Lewis v. City of Union City (Lewis II), 934 

F.3d 1169, 1185 (11th Cir. 2019). But all Title VII claims—singlemotive as well as mixed-motive—are ultimately decided according 

to the same Rule 56 summary judgment standard. And that 

standard asks whether the employee has offered enough 

“circumstantial evidence that creates a triable issue concerning the 

employer’s discriminatory intent.” Tynes, 88 F.4th at 946 (quotation 

omitted). “Bits and pieces” of evidence, as McCreight puts it, are 

not enough, no matter which theory the plaintiff travels under. 

But bits and pieces are all she offered. Returning to the 

specifics of McCreight’s sex discrimination claim, she relies on 

statements from other female employees alleging that King 

mistreated women, as well as alleged comments from King about 

hiring younger mortgage loan originators. She also points to older 

male employees she says were treated more favorably than she 

was.7 

7 McCreight also provided statistics about the male-to-female makeup among 

mortgage loan originators before and after King’s involvement. But these statistics are not enough because they reflect only a small portion of the entire 

mortgage department that King oversaw. While there is some evidence that 

King fired or transferred more older women than he did older men, that evidence is likewise insufficient because we do not know the gender composition 

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Missing from McCreight’s evidence is any indication thatsex 

played a role in her termination. The examples she provides about 

the treatment of older male employees do not suggest sex 

discrimination against her. One male employee improperly closed 

a loan such that it had to be converted to an in-house loan—but he, 

unlike McCreight, was a relatively new hire and had not been 

disciplined before (or after, as it turned out) for an unauthorized 

approval of a loan. The next also made costly mistakes—and he, 

like McCreight, was told to either resign or be terminated. And as 

for the third, McCreight’s argument that AuburnBank responded 

more immediately to his complaints about age discrimination and 

a hostile work environment is not evidence of sex discrimination 

against her. See Yelling, 82 F.4th at 1343. 

All that remains is McCreight’s general evidence of sex 

discrimination—that is, King’s comments about hiring younger 

mortgage loan originators, and complaints by other female 

employees alleging mistreatment by King. These cannot carry the 

day. To be sure, general evidence of discriminatory animus can 

create an inference that discrimination played a role in a particular 

case. See Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d 

1354, 1361 (11th Cir. 1999); Smith v. Lockheed-Martin Corp., 644 F.3d 

1321, 1328, 1341 (11th Cir. 2011). But presenting sparse examples 

of an employer’s animus toward a particular group is not enough 

and size of the entire mortgage department. We therefore cannot rely on 

these statistics as sufficient evidence of sex discrimination to deny summary 

judgment. 

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20 Opinion of the Court 22-12577

on its own—a plaintiff also needs evidence connecting that animus 

to the adverse employment action against her. See Rojas v. Florida, 

285 F.3d 1339, 1342–43 (11th Cir. 2002). Because McCreight has 

failed to offer enough evidence for a reasonable jury to conclude 

that she was discriminated against because of her sex, we affirm 

the district court’s summary judgment order on her Title VII sexplus-age discrimination claim. 

IV.

McCreight also brought an age discrimination claim under 

the Age Discrimination in Employment Act, as did Wester.8 The 

ADEA prohibits employment discrimination against individuals 

who are at least forty years old. 29 U.S.C. §§ 623(a)(1), 631(a). To 

establish a claim under the ADEA, “a plaintiff must prove that age 

was the ‘but-for’ cause of the employer’s adverse decision.” Gross, 

557 U.S. at 176. This standard aligns with the single-motive 

framework under Title VII, which asks whether discrimination was 

the outcome-determinative reason for the employment action. See 

Qui, 814 F.3d at 1235, 1237–39; Sims v. MVM, Inc., 704 F.3d 1327, 

1331–33 (11th Cir. 2013).

McCreight and Wester argue that they have provided 

enough evidence to show that they were fired because of their age. 

King and AuburnBank disagree; they also ask that we analyze the 

8 McCreight and Wester also brought claims under the Alabama Age Discrimination in Employment Act, which has the same standards as the ADEA. Robinson v. Alabama Cent. Credit Union, 964 So. 2d 1225, 1228 (Ala. 2007). 

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22-12577 Opinion of the Court 21

claims only under the McDonnell Douglas framework because 

McCreight and Wester did not raise a “convincing mosaic” 

argument before the district court. This too (on top of ignoring 

our recent precedent rejecting this argument) misunderstands the 

way courts must approach employment discrimination litigation. 

McDonnell Douglas and the “convincing mosaic standard” are two 

ways to approach the same question: whether the plaintiff has put 

forward enough evidence for a reasonable jury to conclude that 

illegal discrimination occurred. Here, however, neither McCreight 

nor Wester did so—no matter how one looks at it.

A.

The district court’s task at summary judgment is to assess 

the plaintiff’s claims according to the ordinary summary judgment 

standard. “That legal standard applies no matter how an employee 

presents her circumstantial evidence.” Berry v. Crestwood Healthcare 

LP, 84 F.4th 1300, 1311 (11th Cir. 2023). As we have explained, the 

McDonnell Douglas framework and the convincing mosaic approach 

are two paths to the same destination—the ordinary summary 

judgment standard. Tynes, 88 F.4th at 943–47. One approach is not 

more forgiving than the other on the final question, which is 

whether a reasonable jury could infer illegal discrimination. But 

given the continuing confusion on this issue, we add a little more 

explanation here. 

In McDonnell Douglas, the Supreme Court “set out a burden

shifting framework designed to draw out the necessary evidence in 

employment discrimination cases.” Tynes, 88 F.4th at 944. A 

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22 Opinion of the Court 22-12577

plaintiff proceeding under that framework bears an initial burden 

of establishing a prima facie case of discrimination.9 Lewis v. City 

of Union City (Lewis I), 918 F.3d 1213, 1220 (11th Cir. 2019) (en 

banc). Once that initial burden is met, the employer must 

articulate a legitimate, nondiscriminatory reason for its adverse 

employment action, and then, finally, the plaintiff must show that 

the employer’s reason is pretext for unlawful discrimination. Poer 

v. Jefferson Cnty. Comm’n, 100 F.4th 1325, 1336 (11th Cir. 2024); Tynes, 

88 F.4th at 944. This final question of pretext “merges with the 

plaintiff’s ultimate burden of persuading the factfinder that she has 

been the victim of intentional discrimination.” Lewis I, 918 F.3d at 

1221 (alterations adopted and quotations omitted). In other words, 

the pretext prong of McDonnell Douglas is just the ordinary 

summary judgment standard. Tynes, 88 F.4th at 945.

The convincing mosaic approach is—in its entirety—the 

summary judgment standard. That phrase “is a metaphor, not a 

9 The term “prima facie case,” though ordinarily meaning “enough evidence 

for a plaintiff to prevail on a particular claim,” carries a different meaning in 

the McDonnell Douglas context—“the establishment of a legally mandatory, rebuttable presumption.” Tynes, 88 F.4th at 945 (quotation omitted). That presumption serves as “a sort of practical coercion that forces the defendant to 

come forward with evidence explaining its actions,” and it gives the defendant 

employer “a better idea of what evidence needs to be rebutted.” Id. (quotation 

omitted). Once the defendant employer offers evidence of the reason for its 

actions toward the plaintiff, the prima facie case “drops out of the picture” 

because the district court now has “all the evidence it needs to decide whether 

the defendant intentionally discriminated against the plaintiff.” Id. (quotations 

omitted).

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22-12577 Opinion of the Court 23

legal test and not a framework.” Berry, 84 F.4th at 1311; see also 

Poer, 100 F.4th at 1337; Ossmann, 82 F.4th at 1020. It is also a helpful 

reminder that McDonnell Douglas is not the only game in town—a 

particularly useful point for employees with significant evidence of 

illegal discrimination who lack the comparator evidence often 

required to set out a case under McDonnell Douglas. See Smith, 644 

F.3d at 1328; Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 

1320 (11th Cir. 2012); see also Lewis I, 918 F.3d at 1220 & n.6. 

Although we have tried to clarify that they are one and the 

same, some still consider the convincing mosaic as something 

different than the ordinary summary judgment standard. Perhaps 

the fact that the phrase “convincing mosaic” is more poetic than 

your average legal term has contributed to that idea. But imagine 

if, rather than “a convincing mosaic of circumstantial evidence that 

would allow a jury to infer intentional discrimination,” the court 

had said “enough evidence to allow a jury to infer intentional 

discrimination.” Smith, 644 F.3d at 1328 (footnote and quotation 

omitted). We suspect that no one would construe that latter phrase 

as creating a new framework different from the ordinary summary 

judgment standard. So to the extent the term “convincing mosaic” 

has become a distraction, we again reiterate that this “approach to 

analyzing the evidence treats an employment discrimination suit in 

the same way we would treat any other case—jumping directly to 

the ultimate question of liability and deciding whether the moving 

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24 Opinion of the Court 22-12577

party is entitled to judgment at that stage of the case.” Tynes, 88 

F.4th at 947.10 

What follows is that a plaintiff need not specifically use the 

term “convincing mosaic” in the trial court to contend on appeal 

that she has offered enough evidence to survive summary 

judgment. Contrary to the partial dissent’s view, we have never 

imposed a “magic words” requirement before, and we decline to 

do so here. See Hull Partial Dissent at 6–7. Our “general rule that 

issues must be raised in lower courts in order to be preserved” does 

“not demand the incantation of particular words; rather, it requires 

that the lower court be fairly put on notice as to the substance of 

the issue.” See Nelson v. Adams USA, Inc., 529 U.S. 460, 469 (2000). 

So long as a plaintiff argues that she has presented enough evidence 

for a reasonable juror to infer intentional discrimination, she has 

preserved that issue and put the court on notice of the relevant 

standard. Regardless of the term used—“pretext,” “convincing 

mosaic,” “summary judgment”—the substance of the argument is 

the same. 

10 The Seventh Circuit, where this phrase originated, agrees. It has repeatedly 

chastised litigants that the “‘convincing mosaic’ is not a legal test of any kind.” 

Ortiz v. Werner Enters., Inc., 834 F.3d 760, 764–65 (7th Cir. 2016). The proper—

and only—legal standard is “whether there was evidence from which a reasonable trier of fact could infer discrimination.” Johnson v. Advoc. Health & 

Hosps. Corp., 892 F.3d 887, 894 (7th Cir. 2018) (alteration adopted and quotation omitted). 

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22-12577 Opinion of the Court 25

We recognize that this Court may have seemed to suggest 

something different for the first time in Bailey v. Metro Ambulance 

Services, when the opinion stated that the plaintiff “forfeited any

‘convincing mosaic’ argument” by failing to sufficiently raise it. 

992 F.3d 1265, 1273–74 (11th Cir. 2021). But read closely, the 

decision in Bailey was based on the plaintiff’s failure to raise any sort 

of argument in favor of his disparate treatment claim. Id. at 1274. 

Instead, he had claimed that a convincing mosaic of evidence 

supported a different claim he had raised. Id. Because Bailey “made 

no other argument” in support of his disparate treatment claim, 

this Court affirmed the district court’s decision rejecting that claim. 

Id. In other words, the panel’s point in Bailey was not that the 

plaintiff had not preserved a convincing mosaic argument by failing 

to use those magic words; it was that he had failed to preserve any 

argument at all. 

The partial dissent, in contrast, reads Bailey to say that a 

plaintiff forfeits convincing mosaic arguments by failing to use that 

specific phrase below. Hull Partial Dissent at 12–17. Though we 

think that is not the best reading, we’ll admit it is a plausible one. 

But it also stands contrary to our decision in Berry v. Crestwood 

Healthcare LP. Under the prior-panel precedent rule we are 

obligated to reconcile Bailey with Berry “if at all possible.” United 

States v. Hogan, 986 F.2d 1364, 1369 (11th Cir. 1993); see also Babb v. 

Sec’y, Dep’t of Veterans Affs., 992 F.3d 1193, 1203 (11th Cir. 2021). 

Our reading of Bailey as addressing a complete failure to defend a 

claim at summary judgment offers a clear way to harmonize the 

two cases. 

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26 Opinion of the Court 22-12577

In Berry, we rejected the defendant employer’s claim that a 

plaintiff had forfeited the right to raise certain arguments under a 

convincing mosaic umbrella on appeal because at the district court 

she had cited certain evidence only to support her McDonnell 

Douglas arguments. Berry, 84 F.4th at 1306–07, 1309, 1312–13. No 

matter—it is issues, not arguments in support of those issues, that 

can be forfeited if not raised below. Id. at 1312; see also Yee v. City of 

Escondido, 503 U.S. 519, 534–35 (1992). “The legal standard—and 

the question for the court at summary judgment,” we said, “is only 

whether the evidence permits a reasonable factfinder to find that 

the employer retaliated against the employee.” Berry, 84 F.4th at 

1311. 

We disagree with the partial dissent’s view that Berry is 

irrelevant here because the plaintiff in that case used the words 

“convincing mosaic” in the district court for one of the claims 

raised, thereby preserving the issue for appeal. Hull Partial Dissent 

at 17–19. The plaintiff used those magic words, it is true. But as 

explained above, that was not the basis for the Berry panel’s 

decision. The Court recalled that “‘convincing mosaic’ is a 

metaphor, not a legal test and not a framework.” Berry, 84 F.4th at 

1311. Indeed, any other response would have been inconsistent 

with our statement more than two decades earlier that “the 

plaintiff will always survive summary judgment if he presents 

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22-12577 Opinion of the Court 27

circumstantial evidence that creates a triable issue concerning the 

employer’s discriminatory intent.” Smith, 644 F.3d at 1328.11 

11 We also disagree with the partial dissent’s citation to unpublished cases, 

which do not prove the point that opinion suggests in any event. See Hull 

Partial Dissent at 2 n.2. I will not belabor the argument for too long because,

as the partial dissent admits, unpublished cases “are not precedential and they 

bind no one.” Ray v. McCullough Payne & Haan, LLC, 838 F.3d 1107, 1109 (11th 

Cir. 2016). I think it valuable to note, however, that two of the cases cited 

perform a typical summary judgment analysis even though they disclaim any 

consideration of the plaintiff’s convincing mosaic arguments. Corley v. Mercedes-Benz U.S. Int’l, Inc., No. 21-11986, 2022 WL 2345808 at *3–5 (11th Cir. 

June 29, 2022) (unpublished); Skelton v. Birmingham Airport Auth., No. 20-13982, 

2021 WL 4476800 at *3–4 (11th Cir. Sept. 30, 2021) (unpublished). In other 

words, those cases already do what this opinion suggests is required. See, e.g., 

Skelton, 2021 WL 4476800 at *4 (“the record evidence did not show a genuine 

dispute as to any material fact”). Another case, like Bailey, rejects a claim because no argument was made at all; indeed, the plaintiff expressly disclaimed 

any sort of single-motive theory at the district court. Subotic v. Jabil, Inc., No. 

22-13880, 2024 WL 797140 at *6 (11th Cir. Feb. 27, 2024) (unpublished). More 

persuasive, in our view, is that since Berry was issued at the end of 2023, at 

least three cases have rejected the idea that the words “convincing mosaic” 

need to be used at the district court for us to consider a case under the ordinary 

summary judgment standard on appeal, and another considered a Title VII 

case that was briefed without explicitly relying on McDonnell Douglas or using 

the term “convincing mosaic.” Dowdell-McElhaney v. Glob. Payments Inc., No. 

23-10334, 2024 WL 2796976 (11th Cir. May 31, 2024) (unpublished); Jeter v. 

Roberts, No. 22-13983, 2024 WL 507183 (11th Cir. Feb. 9, 2024) (unpublished); 

Jones v. Gadsden Cnty. Sch., No. 23-11090, 2024 WL 446241 (11th Cir. Feb. 6, 

2024) (unpublished); Valdes v. Kendall Healthcare Grp., Ltd., No. 23-12983, 2024 

WL 3356965 (11th Cir. July 10, 2024) (unpublished). If anything, Berry offered 

a clarity that has not caused problems here or in the district court—one that 

we would interrupt by holding the opposite. 

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In short, the terms “McDonnell Douglas” and “convincing 

mosaic” do not dictate the legal standard that plaintiffs are entitled 

to receive at summary judgment. We now consider whether the 

district court’s conclusion that McCreight and Wester failed to 

provide enough evidence for their ADEA claims to survive 

summary judgment was correct.

B.

To determine whether McCreight and Wester’s convincing 

mosaic arguments on appeal were preserved below, we look to the 

record—particularly the evidence and issues they advanced before 

the district court at summary judgment. McCreight and Wester 

argued below that they provided enough evidence for a reasonable 

juror to infer intentional discrimination. The district court

conducted a pretext analysis, which the Supreme Court has said 

merges with the ultimate summary judgment question. Texas 

Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 256 (1981). The district 

court concluded that McCreight and Wester had failed to provide 

enough evidence to suggest that AuburnBank’s reason for firing 

them was pretextual. In other words, the district court found that 

McCreight and Wester’s ADEA claims failed the ordinary summary 

judgment standard.12

12 This is one reason that we do not share the partial dissent’s concern about 

fair notice to the district court. See Hull Partial Dissent at 12, 20–22. Here, as 

in most cases, the district court considered the plaintiffs’ evidence without 

grounding the conclusion in anything but the ordinary summary judgment 

standard. What’s more, the evidence is the same either way. As we explained 

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22-12577 Opinion of the Court 29

On appeal, McCreight and Wester again challenge the 

district court’s conclusion that there was not enough evidence to 

suggest intentional discrimination. They rely on all the same 

evidence as they did below—but this time they add the term 

“convincing mosaic.” That new phrase, however, does not bring 

with it any new arguments. Contra Hull Partial Dissent at 20–21. 

McCreight and Wester’s arguments on appeal are substantively the 

same as they were at the district court: that the evidence presented 

is enough for a reasonable juror to infer intentional discrimination 

by AuburnBank. 

So although McCreight and Wester did not mention 

“convincing mosaic” by name in reference to their ADEA claim 

before the district court, the district court’s ultimate task was to 

consider whether they had put enough evidence in the record to 

convince a jury that they had faced age discrimination. That is 

exactly what it did. The court explained that neither woman could 

show that the bank’s true reason for firing them was age 

discrimination. 

That determination was correct. We start with McCreight, 

who points to five other AuburnBank employees as examples of 

differential treatment based on age. McCreight also tries to cast

doubt on whether her termination was justified, arguing that she 

here and in Tynes, at the third step of McDonnell Douglas the plaintiff tries to 

show—with whatever evidence she has—that “the real reason for the employment action was discrimination.” Tynes, 88 F.4th at 944. 

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was never told to use a new prequalification letter, that she was 

given permission to use the old letter, and that AuburnBank

deviated from its policies by firing her. Finally, McCreight relies on 

King’s statements about wanting to hire younger women. 

This evidence is not enough to show that age discrimination 

was the true reason McCreight was fired. The record reflects that 

she improperly approved an unqualified borrower without 

authorization to do so. Her contention that she did not know 

about the new form letter she was supposed to use falls flat; the 

record also shows that she was copied on emails instructing 

mortgage loan originators to use the new format rather than the 

old one. And that was not her first error—McCreight had made 

other serious mistakes and received a reprimand and warning for 

each. 

What’s more, the other evidence McCreight points to does 

not suggest that King fired her because of her age. Three of the 

other employees she names made mistakes, but none of these 

mistakes were severe or costly violations like McCreight’s. And 

while two others did make serious and costly mistakes, both 

resigned or transferred—and neither of them worked under King. 

Moreover, while we agree that King’s comments support 

McCreight’s claims of discrimination, stray comments alone are 

not enough to overcome the summary judgment standard. See 

Beaver v. Rayonier, Inc., 200 F.3d 723, 729–30 (11th Cir. 1999). 

Because McCreight failed to provide sufficient evidence for a 

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22-12577 Opinion of the Court 31

reasonable juror to infer that age was the reason for her 

termination, her ADEA claim fails. 

Wester also fails to provide enough evidence to support her 

ADEA discrimination claim. She relies on largely the same 

evidence as McCreight, but adds that she did not commit a serious 

violation justifying her termination. She contends that the failure 

to verify a borrower’s employment was not actually her own 

because she had asked her coworkers to handle it while she was out 

of the office. 

But Wester too had a history of not completing her work on 

time, and she admits that she failed to timely verify the borrower’s 

employment status as her job required. While Wester points to a 

lack of discipline for various other employees as evidence of age 

discrimination, that does not move the needle. Without any other 

evidence, different treatment of different employees with different 

violations of different rules is not enough. Because neither Wester 

nor McCreight provided enough evidence to suggest that they 

were fired because of their age, their ADEA discrimination claims 

fail. 

V.

We now turn to McCreight and Wester’s Title VII and 

ADEA retaliation claims. Both statutes prohibit an employer from 

discriminating against an employee because she “has opposed any 

practice made an unlawful employment practice.” 42 U.S.C. 

§ 2000e-3(a); see also 29 U.S.C. § 623(d). “To that end, employers 

cannot retaliate against employees who have complained about—

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32 Opinion of the Court 22-12577

that is, opposed—discrimination” based on sex, age, or other 

protected characteristics. Martin v. Fin. Asset Mgmt. Sys., Inc., 959 

F.3d 1048, 1053 (11th Cir. 2020). 

Three things are required at the outset to support a 

retaliation claim: (1) a protected activity, (2) an adverse 

employment action, and (3) a causal connection between them.13 

Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008). McCreight 

and Wester meet the first two: both complained to human 

resources about King, and their firings were adverse employment 

actions. See Shannon v. Bellsouth Telecomms., Inc., 292 F.3d 712, 715

n.2 (11th Cir. 2002); Crawford, 529 F.3d at 970. 

But the third element presents a problem. McCreight and 

Wester do notshow causation, which requires more than some sort 

of temporal proximity between the employee’s complaints and the 

adverse employment action. Proof of the decisionmaker’s

knowledge or awareness of those complaints is also required. 

Martin, 959 F.3d at 1054. McCreight says she complained to Laura 

Carrington in human resources “that false rumors were being 

spread about her” and that she was the victim of both age and sex 

discrimination. She also says that she complained to Vice President 

Terry Bishop once a month starting in December 2017 that King 

was wanting to get rid of older females and replace them with 

younger workers. 

13 The same standards apply for both Title VII and ADEA claims. Hairston v. 

Gainesville Sun Publ’g Co., 9 F.3d 913, 919 (11th Cir. 1993). 

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So far so good. Her evidence, however, is missing an 

essential link. The record does not show that either of the 

decisionmakers knew that McCreight had complained about sex or 

age discrimination. To start, both King and Herring deny any 

knowledge of her internal discrimination complaints. Carrington

did meet with the two supervisors, but her contemporaneous notes 

reflect that she shared only McCreight’s complaint that King had 

spread false rumors about her; there is no discussion of

McCreight’s discrimination complaints. And McCreight makes no 

argument at all that Bishop told anyone else about her 

conversations with him. 

She does suggest that Carrington must have told King, even 

though Carrington says differently, or that at the very least this is a 

disputed issue of fact for the jury. But “a jury finding that a 

decisionmaker was aware of an employee’s protected conduct 

‘must be supported by reasonable inferences from the evidence, 

not mere speculation.’” Martin, 959 F.3d at 1053 (quoting Clover v. 

Total Sys. Servs., Inc., 176 F.3d 1346, 1355 (11th Cir. 1999)). Here, all 

we have is the latter—mere speculation. 

Wester’s case is even weaker. She concedes that she did not 

use the word “age” when she complained to Carrington about a 

hostile work environment. But she says that a jury could infer that 

she was complaining about age discrimination because she referred 

to other women who had been fired, and those other women, it 

turns out, were over the age of forty. 

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34 Opinion of the Court 22-12577

Complaining about a hostile work environment is different 

from complaining about age discrimination. And in Wester’s own 

telling, she never complained specifically about age discrimination; 

she told Carrington that she did not like her work environment and 

requested a transfer. The record reflects that Carrington told King 

and Herring that Wester had requested a transfer—not that she had 

complained of age discrimination, or rooted her transfer request in 

that complaint. And King and Herring both deny knowledge that 

Wester had made any complaints about age discrimination. That

Carrington could have told King about her complaints is—again—

too attenuated. Martin, 959 F.3d at 1053–55. While Wester shows

temporal proximity (she was fired two days after complaining), that 

is not enough on its own. Id. at 1054. Because both McCreight and 

Wester failed to show causation, their retaliation claims fail. 

* * *

Our employment discrimination caselaw provides many 

approaches for plaintiffs seeking relief from discrimination. But all 

roads lead to Rule 56—so long as a plaintiff offers enough evidence 

for a reasonable jury to infer illegal discrimination, her Title VII 

claim will survive summary judgment. Here, because neither 

McCreight nor Wester did so, we AFFIRM.

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22-12577 ABUDU, J., Concurring 1

ABUDU, Circuit Judge, Concurring:

I agree with the majority opinion that neither McCreight 

nor Wester presented sufficient evidence to avoid summary judgment on their discrimination claims. I write separately to offer 

some perspective with respect to the “sex-plus” dilemma plaintiffs 

who are members of multiple protected groups face when trying 

to assert and prove their discrimination claims.

While the majority opinion articulates the current state of 

law when it comes to claims that McCreight deems “intersectional” 

and the majority opinion refers to as “sex-plus,” these identity constructions are more nuanced and merit further attention. Because 

these kinds of intersectionality claims are not only related to sexbased discrimination, I refer to them as “subgroup discrimination” 

claims. See Marc Chase McAllister, Proving Sex-Plus Discrimination 

through Comparator Evidence, 50 Seton Hall L. Rev. 757, 760 (2020) 

(“Subgroup discrimination claims . . . focus on the employer’s 

treatment of one segment of a protected group . . . rather than the 

group as a whole . . . .”).

Individuals who are members of multiple protected classes 

face a heightened risk of discrimination. See Trina Jones, Title VII 

at 50: Contemporary Challenges for U.S. Employment Law, 6 Ala. C.R. 

& C.L. L. Rev. 45, 49 (2014) (“For example, an employer may treat 

an Asian woman differently from a White woman or an Asian 

man . . . . Thus, she may be subject to stereotypes to which White 

women and Asian men are immune.”); Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against 

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2 ABUDU, J., Concurring 22-12577

Women of Color, 43 Stan. L. Rev. 1241, 1244 (1991) (“Because of their 

intersectional identity as both women and of color within discourses that are shaped to respond to one or the other, women of 

color are marginalized within both.” (emphasis in original)). Despite this increased risk of discrimination, the legal landscape is often unreceptive to subgroup discrimination claims. To begin with, 

the different statutory schemes for guarding against discrimination 

create additional complexities for subgroup discrimination plaintiffs. For example, as explained in the majority opinion, a plaintiff 

who is discriminated against on the basis of being a female above 

the age of forty could bring a Title VII sex-discrimination claim on 

a “sex-plus-age” basis. See Maj. Op. at 10–11. In that instance, the 

plaintiff may proceed under either a single-motive or mixed-motive 

theory of discrimination. Id. at 12–13. However, if that same plaintiff brought a claim for the same alleged discrimination under the 

ADEA, she could not prevail on a mixed-motive theory. See Gross 

v. FBL Fin. Servs., Inc., 557 U.S. 167, 175–76 (2009) (holding that the 

ADEA does not authorize a mixed-motive age discrimination 

claim). 

Unfortunately, the challenges for plaintiffs do not stop at the 

potential statutory distinctions on subgroup discrimination claims. 

Scholars and litigants have advocated for greater acknowledgement 

of subgroup discrimination claims, and development of protections for these individuals has been slow. Jones, supra, at 49–51. 

Whatever progress has been made has yet to provide a framework 

to address the subtle, but undeniable forms of discrimination subgroup members may encounter. See id. at 50–51 (describing subsets 

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22-12577 ABUDU, J., Concurring 3

of workers who may be harmed based on intra-group differences 

such as skin tone, one’s pride in their racial heritage, or other aspects of multiple social identities). Even worse, some of the most 

basic questions in this area of law remain unanswered. For example, federal courts are divided on the exact requirements for proving subgroup discrimination claims. Compare Frappied v. Affinity 

Gaming Black Hawk, LLC, 966 F.3d 1038, 1048 (10th Cir. 2020) (holding that a sex-plus plaintiff “must show unfavorable treatment relative to an employee of the opposite sex who also shares the ‘plus-’

characteristic”), and Fisher v. Vassar Coll., 70 F.3d 1420, 1446 (2d Cir. 

1995) (“To establish that [an employer] discriminated on the basis 

of sex plus marital status, [a] plaintiff must show that married men

were treated differently from married women.” (emphasis in original)) (subsequent history omitted), with Sprogis v. United Air Lines, 

Inc., 444 F.2d 1194, 1198 (7th Cir. 1971) (finding discrimination 

claim based on employer’s policy of terminating married women 

was not “negated by [employer]’s claim that the female employees 

occupy a unique position so that there is no distinction between 

members of opposite sexes within the job category”), and McGrenaghan v. St. Denis Sch., 979 F. Supp. 323, 327 (E.D. Pa. 1997) (finding 

plaintiff survived summary judgment on her sex-plus Title VII discrimination claim where comparator was another woman who was 

not in her proffered subgroup of “women who have children with 

disabilities”). 

As this Court interprets and applies laws protecting employees from discrimination, we should be mindful of individuals who 

face discrimination based on membership in more than one 

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4 ABUDU, J., Concurring 22-12577

protected class and that the existing legal framework for protecting 

them is often inadequate to address the multiple layers of discriminatory behavior. 

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22-12577 Hull, J., Concurring in part and Dissenting in part 1

HULL, Circuit Judge, Concurring in part and Dissenting in part:

I concur in full in Sections I, II, III, and V of the Court’s opinion, which affirms summary judgment for the defendants on 

(1) plaintiff McCreight’s sex discrimination claim under Title VII 

and (2) plaintiffs McCreight’s and Wester’s retaliation claims under 

Title VII and the ADEA. However, I am unable to join Section IV 

as to the plaintiffs’ age discrimination claims because Section IV 

does not follow our forfeiture precedent and violates our prior 

panel precedent rule. 

Our Bailey forfeiture precedent holds that a plaintiff forfeits 

the “convincing mosaic” way of inferring discriminatory intent by 

failing to squarely present that issue in the summary judgment 

briefing in the district court. See Bailey v. Metro Ambulance Servs., 

Inc., 992 F.3d 1265, 1273-74 (11th Cir. 2021). As the defendants emphasize, the plaintiffs forfeited the “convincing mosaic” issue as to 

their age claims because in the district court they briefed their circumstantial evidence as to those claims under only the McDonnell 

Douglas framework.1 Under our forfeiture precedent in Bailey, 

plaintiffs cannot switch horses at this stage by raising and briefing 

the “convincing mosaic” issue for the first time on appeal. I dissent 

because Section IV both violates our forfeiture precedent and 

adopts a new no-forfeiture rule that deprives district courts of fair 

notice and briefing of the issues to be decided. 

1 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 

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2 Hull, J., Concurring in part and Dissenting in part 22-12577

To be clear, this case is not about which of those two different circumstantial evidence tools—McDonnell Douglas’s framework 

or the alternative “convincing mosaic” metaphor—is the better, 

less judge-made, or more direct method to defeat summary judgment. Rather, the threshold question here is only a forfeiture issue. 

Bear with me as I walk through these four points:

(1) What actually happened in the district court and how as 

to their age claims the plaintiffs did not raise or brief the “convincing mosaic” issue in the district court and thus forfeited that issue 

on appeal. 

(2) Our Bailey’s forfeiture holding—that a plaintiff forfeits 

the “convincing mosaic” way of inferring discriminatory intent by 

failing to present that issue in the summary judgment briefing—

and why Bailey controls this case.2

(3) Why the Court’s assertion—that our 2021 Bailey decision 

“stands contrary to our decision in” Berry v. Crestwood Healthcare LP, 

84 F.4th 1300 (11th Cir. 2023)—is wrong. Plaintiff Berry raised the 

“convincing mosaic” issue in the district court. What changed on 

appeal in Berry was the plaintiff’s specific arguments falling under 

the same “convincing mosaic” umbrella. In contrast, here the 

plaintiffs switched wholly from a McDonnell Douglas issue in the 

2 As detailed in specific citations in my last section, our Court, often citing Bailey, has correctly held in many recent unpublished decisions that a plaintiff’s 

failure to raise explicitly the “convincing mosaic” issue in the district court forfeits that issue on appeal.

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22-12577 Hull, J., Concurring in part and Dissenting in part 3

district court to solely the “convincing mosaic” issue on appeal, 

which makes this case fall under Bailey and shows there is no conflict between Bailey and Berry. 

(4) The consequences of the Court’s adoption of a new noforfeiture rule that collapses McDonnell Douglas and the “convincing 

mosaic” issues into a single issue, whereby the plaintiffs can preserve the “convincing mosaic” issue on appeal even though the 

plaintiffs raised and briefed only the McDonnell Douglas issue in the 

district court. 

I. DISTRICT COURT PROCEEDINGS

A. Defendants’ Briefs in Support of Summary Judgment

In the district court, the defendants asserted they were entitled to summary judgment on the plaintiffs’ age claims under both

McDonnell Douglas’s three-step burden-shifting framework and the 

alternative “convincing mosaic” method.3 The defendants’ briefs 

had a numbered section devoted to McDonnell Douglas in which 

they analyzed the evidence and argued the plaintiffs failed to satisfy 

their prima facie case burden to present evidence of valid comparators. 

The defendants’ briefs also had a separately numbered section entitled: “There is no ‘convincing mosaic of circumstantial evidence.’” (Emphasis added.) That section expressly acknowledged 

3 For each plaintiff, the defendants filed a separate brief which followed the 

same pattern, so I treat them jointly. The plaintiffs filed a joint response.

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4 Hull, J., Concurring in part and Dissenting in part 22-12577

that McDonnell Douglas “[wa]s not the only avenue” for the plaintiffs 

to survive summary judgment. The defendants’ briefs cited some 

of our convincing mosaic precedent, including Smith v. Lockheed 

Martin Corp., 664 F.3d 1321 (11th Cir. 2011). The defendants’ briefs 

even correctly stated the general “convincing mosaic” principle: 

“The triable issue exists if ‘the record, viewed in the light most favorable to the plaintiff, presents a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination by the decisionmaker.’” And then, the defendants’ 

briefs analyzed all the circumstantial evidence under the “convincing mosaic” approach. 

What happened next makes the plaintiffs’ forfeiture crystal 

clear.

B. Plaintiffs’ Joint Summary Judgment Response

Even though the defendants’ briefs had separate sections on 

the “convincing mosaic” approach and the McDonnell Douglas

framework, the plaintiffs’ joint response brief did not raise or brief 

the alternative “convincing mosaic” method or cite any of this 

Court’s convincing mosaic decisions as to their age claims. 

Rather, the plaintiffs’ joint response brief cited only McDonnell Douglas cases and addressed only the three McDonnell Douglas

steps of the prima facie case, the legitimate reason for the termination, and pretext. More specifically, the plaintiffs’ summary judgment response claimed each had demonstrated a prima facie case 

of age discrimination—Wester by being replaced with a younger 

employee and McCreight by pointing to a younger, similarly 

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22-12577 Hull, J., Concurring in part and Dissenting in part 5

situated comparator who was not terminated. The plaintiffs also 

argued AuburnBank’s proffered reasons for firing them were not 

legitimate and were pretextual. 

What’s more, in outlining the applicable law as to their age 

claims, the plaintiffs cited these three cases, which all applied only 

McDonnell Douglas’s three-step framework and did not mention the 

“convincing mosaic” method at all: Kragor v. Takeda Pharmaceuticals 

America, Inc., 702 F.3d 1304 (11th Cir. 2012); Crawford v. City of Fairburn, 482 F.3d 1305 (11th Cir. 2007); and Cobb v. City of Roswell, 533 

F. App’x 888 (11th Cir. 2013). 

Notably, too, the plaintiffs’ “pretext” argument was that the 

defendants’ proffered legitimate reason for terminating them was 

not worthy of credence and thus pretextual, citing the McDonnell 

Douglas case of Springer v. Convergys Customer Management Group, 

Inc., 509 F.3d 1344 (11th Cir. 2007). 

The plaintiffs’ omission of the “convincing mosaic” issue as 

to their age claims is particularly glaring given that a separate section of the plaintiffs’ same joint summary judgment response addressed McCreight’s sex-plus discrimination claim and explicitly 

raised the “convincing mosaic” issue by name and cited our “convincing mosaic” cases. 

C. District Court’s Summary Judgment Order

Given how the plaintiffs elected to brief their age claims, the 

district court understandably analyzed those claims under only 

McDonnell Douglas’s framework—the only way the plaintiffs briefed 

that issue. The Court states “the district court considered the 

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plaintiffs’ evidence without grounding the conclusion in anything 

but the ordinary summary judgment standard.” Maj. Op. at 28 n.12

(citing Doc. 142 at 9-35). That is simply not accurate. The district 

court’s conclusions as to the plaintiffs’ age discrimination claims 

were grounded very particularly and exclusively in its analysis of 

the steps of the McDonnell Douglas framework. 

First, in Section V.B.1 of its order, the district court “dispense[d] with” whether McCreight made a prima facie case and analyzed whether AuburnBank’s proffered reason for terminating her 

was pretextual because that “pretext analysis [was] dispostive.” 

The district court concluded that McCreight’s evidence—which included King’s ageist comments and the more favorable treatment 

for younger workers’ mistakes—“failed to demonstrate pretext.” 

Moving to plaintiff Wester’s age claims, the district court 

concluded in Section V.B.2 of its order that (1) Wester had established a prima facie case under the McDonnell Douglas framework, 

(2) but her circumstantial evidence—the same as McCreight’s evidence—was “insufficient to rebut” AuburnBank’s legitimate reason 

for terminating Wester, and (3) thus “Wester ha[d] failed to present 

sufficient evidence to demonstrate that AuburnBank’s reason for 

firing her was pretextual.” 

Section V.B. of the district court’s order did not consider 

whether either plaintiff’s circumstantial evidence, although insufficient to satisfy the pretext prong of the McDonnell Douglas framework, could nonetheless support a reasonable inference of discriminatory intent. And the district court cannot be faulted for this 

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22-12577 Hull, J., Concurring in part and Dissenting in part 7

omission because neither plaintiff gave the court any indication in 

their joint summary judgment response that they were relying on 

the convincing mosaic approach to defeat summary judgment on 

their age claims.

Contrary to Section IV of the Court’s opinion, the forfeiture 

issue is not about “magic words” or the “incantation of particular 

words.” Maj. Op. at 24. Rather, it is about the requirement that the 

district court be fairly put on notice of a plaintiff’s claims and the 

issues to be decided by the district court. No matter how my colleagues try to slice and dice it, the plaintiffs here tried to defeat summary judgment on their age claims under only the McDonnell Douglas framework and nothing else. Thus, the district court addressed 

the McDonnell Douglas framework and nothing else.

Now, on appeal, the plaintiffs adopt a different position. As 

to their age claims, the plaintiffs’ opening appellate brief raises no 

issues under McDonnell Douglas’s framework and instead contends 

only that the district court should have denied summary judgment 

under the “convincing mosaic” method. 

The defendants respond that McCreight and Wester forfeited any reliance on the “convincing mosaic” approach by failing 

to raise and brief it in the district court. This is not close. It is clear 

cut what actually happened in the district court, and no glossing 

over can change that.

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II. OUR FORFEITURE PRECEDENT 

A. Threshold Question

So, the threshold question for our Court is whether the 

plaintiffs’ joint summary judgment response in the district court 

forfeited the alternative “convincing mosaic” issue by addressing 

only McDonnell Douglas’s three-prong framework as to their age 

claims. 

The Court says no. The first two steps of its reasoning are 

that (1) the “convincing mosaic” approach is no different than the 

ordinary summary judgment standard, and (2) the ordinary summary judgment standard in discrimination cases is whether a plaintiff presented enough evidence for a reasonable jury to infer intent 

to discriminate. Maj. Op. at 21. So far, so good. This merely states 

the general summary judgment standard in all discrimination 

cases.

Only the Court’s third step involves forfeiture and is where I 

part company. Here’s the Court’s new no-forfeiture rule: 

So long as a plaintiff argues that she has presented 

enough evidence for a reasonable juror to infer intentional discrimination, she has preserved that issue and 

put the court on notice of the relevant standard. Regardless of the term used—“pretext,” “convincing 

mosaic,” “summary judgment”—the substance of 

the argument is the same.

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22-12577 Hull, J., Concurring in part and Dissenting in part 9

Maj. Op. at 24. In other words, there is no forfeiture of different 

issues (such as the McDonnell Douglas framework or the alternative 

“convincing mosaic” issue) at summary judgment in discrimination cases as long as the plaintiff merely argues that the evidence 

presents a jury issue as to intentional discrimination. That is simply 

the Rule 56 standard in every discrimination case and does not fairly 

put a district court on notice of what issues to address. Most certainly, this district court was not on notice of the “convincing mosaic” issue given how the plaintiffs briefed their case only under the 

McDonnell Douglas framework. Just the opposite. 

In any event, the Court’s new no-forfeiture rule violates our 

prior panel precedent in Bailey, which held a plaintiff forfeits the 

“convincing mosaic” issue by failing to squarely present it in the 

summary judgment briefs in the district court. See Bailey, 992 F.3d 

at 1273-74.

Some table setting before diving into our forfeiture precedent and how the Court violates our prior Bailey precedent. 

B. Two Ways to Use Circumstantial Evidence to Defeat 

Summary Judgment

The McDonnell Douglas burden-shifting framework and the 

more expansive “convincing mosaic” approach are two different 

tools or ways to use circumstantial evidence to create an inference of 

intentional discrimination to defeat summary judgment. Even the 

Majority describes them as “two ways” or “two paths” to attempt 

to defeat summary judgment. Maj. Op. at 2, 21.

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To date, our precedent treats them as alternative tools and 

analyzes the issues separately using different analytical factors. See, 

e.g., Berry, 84 F.4th at 1307-13 (stating the McDonnell Douglas threestep framework is “one tool” and “not the exclusive means” and 

analyzing plaintiff’s Title VII retaliation claim first under the 

McDonnell Douglas framework and alternatively, in a separate section, under the “convincing mosaic” method that uses circumstantial evidence of any kind (quotation marks omitted)); Yelling v. St. 

Vincent’s Health Sys., 82 F.4th 1329, 1341-42 (11th Cir. 2023) (same); 

Ossmann v. Meredith Corp., 82 F.4th 1007, 1015-20 (11th Cir. 2023) 

(analyzing plaintiffs’ circumstantial evidence of race discrimination 

under the “convincing mosaic” approach as “an alternative” after 

concluding the circumstantial evidence could not satisfy the third 

step of the McDonnell Douglas framework); Jenkins v. Nell, 26 F.4th 

1243, 1249-51 (11th Cir. 2022) (analyzing plaintiff’s 42 U.S.C. § 1981 

race discrimination claim first under the McDonnell Douglas framework and alternatively under the “convincing mosaic” method).4 

4 See also Lewis v. City of Union City, 918 F.3d 1213, 1231 & n.20 (11th Cir. 2019) 

(en banc) (Lewis I) (concluding plaintiff’s circumstantial evidence did not satisfy the McDonnell Douglas framework, noting Lewis’s ADA claims and “convincing mosaic” “theory” of Title VII liability were not before the en banc 

court, and remanding “[t]hose issues, and any other pending matters . . . to the 

panel for resolution in the first instance”); Lewis v. City of Union City, 934 F.3d 

1169, 1185-89 (11th Cir. 2019) (Lewis II) (concluding on remand that the plaintiff prevailed—i.e., survived summary judgment—on “convincing mosaic” 

grounds).

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22-12577 Hull, J., Concurring in part and Dissenting in part 11

Given our consistent recognition of the two alternative ways 

to use circumstantial evidence, it is not surprising that our forfeiture precedent in Bailey treats them as separate issues and requires 

them to each be raised or be forfeited. See Bailey, 992 F.3d at 1274 

(holding a plaintiff forfeits the “convincing mosaic” issue by failing 

to squarely present it in the summary judgment briefing in the district court).

Our Bailey precedent is on point. Although the Court in Section IV suggests my reading of Bailey is “a plausible one,” Section 

IV asserts it “stands contrary to our decision” in Berry and thus we 

must “reconcile Bailey with Berry.” Maj Op. at 25. The Court also 

asserts “the partial dissent’s view” is that “Berry is irrelevant.” Maj. 

Op. at 26. 

Not so. To be clear, my view is Bailey (2021) and Berry (2023) 

involved different questions, and there is no conflict between them. 

Specifically, in Berry: (1) the plaintiff separately and adequately 

raised both the McDonnell Douglas issue and the “convincing mosaic” issue in the district court; (2) the Berry Court addressed both 

issues in separate sections; (3) the plaintiff advanced the same issue 

in the district court and on appeal: whether “she presented a convincing mosaic of circumstantial evidence that raises a reasonable 

inference of retaliation,” Berry, 84 F.4th at 1311; but (4) what 

changed on appeal was Berry’s specific arguments falling under the 

same “convincing mosaic” umbrella. In contrast, the Bailey plaintiff 

did not squarely raise the “convincing mosaic” issue at all in the 

district court and forfeited the issue on appeal. Thus, this case falls 

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12 Hull, J., Concurring in part and Dissenting in part 22-12577

under Bailey and not Berry. My detailed tour of Bailey and Berry

shows Bailey controls our case and how the Court violates the prior 

panel precedent rule by not following it.

C. Access Now and then Bailey

Long before Bailey, our Circuit had already established the 

rule “that an issue not raised in the district court and raised for the 

first time in an appeal will not be considered by this [C]ourt.” Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004)

(quotation marks omitted).5 The corollary of this rule is that, if a 

party hopes to preserve a claim, issue, theory, or defense on appeal, 

she must first clearly present it to the district court, that is, “in such 

a way as to afford the district court an opportunity to recognize and 

rule on it.” Juris v. Inamed Corp., 685 F.3d 1294, 1325 (11th Cir. 2012)

(quotation marks omitted). 

As to the plaintiffs’ age claims, the district court here addressed only the three steps of the McDonnell Douglas framework 

because that was what the plaintiffs briefed as to their age claims 

and was the clear briefing signal to the district court. How the 

plaintiffs briefed their case did not give the district court fair notice 

it needed to rule on the “convincing mosaic” approach as to their 

age claims. We could apply Access Now and be done. 

5 Although there are circumstances in which we may address an issue raised 

for the first time on appeal, none of those circumstances apply here. See Access 

Now, 385 F.3d at 1332.

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22-12577 Hull, J., Concurring in part and Dissenting in part 13

But there’s even more precedent—Bailey—which addresses 

the specific forfeiture issue here. In Bailey, our Court concluded 

that a plaintiff forfeits a “convincing mosaic theory” of showing 

discriminatory intent by failing to “squarely present[]” it in summary judgment briefing in the district court. Bailey, 992 F.3d at 

1273-74. 

This is consistent with how we also have concluded a party 

can forfeit sub-issues under the McDonnell Douglas framework of 

proving intentional discrimination. See Bryant v. Jones, 575 F.3d 

1281, 1308 (11th Cir. 2009) (concluding defendant forfeited whether 

plaintiff established a prima facie case under McDonnell Douglas because it was not argued at summary judgment). It is also consistent 

with another discrimination case, in which our Court concluded 

that a plaintiff who “puts all her eggs in the direct-evidence basket” 

forfeits “the available methods of making out a circumstantial-evidence case.” See Harris v. Pub. Health Tr. of Mia.-Dade Cnty., 82 F.4th 

1296, 1301 (11th Cir. 2023). 

Now my deep dive through Bailey and then Berry.

1. Bailey 

In Bailey, the plaintiff, a Rastafarian, brought three Title VII 

claims against his former employer for “failure to reasonably accommodate Bailey’s religious requirement, discrimination on the 

basis of religion, and retaliation for filing a discrimination claim.” 

992 F.3d at 1269. Bailey claimed his employer “treated him worse 

than non-Rastafarians because he was Rastafarian.” Id. at 1273. As 

to disparate treatment based on religion, Bailey alleged “two 

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14 Hull, J., Concurring in part and Dissenting in part 22-12577

separate disparate-treatment theories: a traditional disparate-treatment claim and a failure-to-reasonably-accommodate disparatetreatment claim.” Id. at 1272. “Bailey sought summary judgment 

on the retaliation claim, and [his employer] filed for summary judgment on all claims.” Id. 

In his summary judgment response in the district court, Bailey 

actually included the “convincing mosaic” theory in “his general discussion of the law governing disparate-treatment claims.” Id. at 

1273 (emphasis added). Bailey’s response asserted that his brief in 

support of his own summary judgment motion provided “convincing mosaic” evidence of “direct suspicious timing evidence” in support of his traditional disparate treatment claim. Id. However, Bailey’s summary judgment briefing “did not deliver on its promise.” 

Id. 

Instead, in the district court, Bailey’s own summary judgment 

brief raised and argued a “convincing mosaic” theory “in conjunction with only Bailey’s retaliation claim”—“not in conjunction with 

a traditional religious disparate-treatment discrimination claim.” Id.

at 1273-74 (emphasis added). Just like the plaintiffs here.

Then, on appeal, Bailey, like the plaintiffs here, tried to raise 

the “convincing mosaic” issue as to his disparate treatment claim, but 

our Court held Bailey had forfeited it. Id. We based this forfeiture 

conclusion on “[t]he clear import of all this briefing” in the district 

court. Id. at 1274.

Specifically, the Bailey Court stated: “We disagree that Bailey 

squarely presented a ‘convincing mosaic’ argument to support his 

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22-12577 Hull, J., Concurring in part and Dissenting in part 15

disparate-treatment theory in his summary-judgment briefing in 

the district court.” Id. at 1273. In addition, our Court said that 

“while Bailey tried in his objections to the report and recommendation to assert a ‘convincing mosaic’ argument in support of his 

traditional disparate-treatment claim, he once again made no specific 

arguments tying the ‘convincing mosaic’ theory to his disparate-treatment 

claim.” Id. at 1274 (emphasis added). Bailey twice actually discussed the “convincing mosaic” theory in the district court—in his 

general law discussion and in his objections to the report and recommendation as to his disparate treatment claim—but he never 

followed that up with “convincing mosaic” arguments using or tying his evidence to that claim. Id. at 1273-74. 

In its concluding paragraph as to this issue, this Court 

squarely ruled “Bailey forfeited any ‘convincing mosaic’ argument in 

support of his traditional religious disparate-treatment discrimination 

claim.” Id. at 1274 (emphasis added). At bottom, Bailey raised the 

“convincing mosaic” issue on appeal, but Bailey forfeited it by not 

raising it adequately as to his disparate treatment claim in the district court. And since Bailey on appeal “made no other argument to 

support that version of his disparate-treatment discrimination 

claim, we affirm[ed] the district court’s grant of summary judgment for [his employer] on Bailey’s traditional religious disparatetreatment discrimination claim.” Id. In other words, the “convincing mosaic” theory was the only argument Bailey made on appeal 

as to his traditional disparate treatment claim, but it was not 

squarely raised in the district court and thus was forfeited on appeal, requiring us to affirm summary judgment.

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The Court tries to write around Bailey. The Court admits 

the Bailey decision “stated that the plaintiff ‘forfeited any “convincing mosaic” argument’ by failing to sufficiently raise it” in the district court. Maj. Op. at 25. But then comes the dodge. The Court’s 

Section IV opines that (1) “the decision in Bailey was based on the 

plaintiff’s failure to raise any sort of argument in favor of his disparate treatment claim,” (2) Bailey “had claimed that a convincing 

mosaic of evidence supported a different claim he had raised,” and 

(3) thus “[b]ecause Bailey ‘made no other argument’ in support of 

his disparate treatment claim, this Court affirmed the district 

court’s decision rejecting that claim.” Id. This description in Section IV strings snippets from Bailey together out of context. 

To the contrary, the Court’s focus in Bailey was on whether 

the “convincing mosaic” issue in particular was sufficiently raised in 

the district court as to the disparate treatment claim. The Bailey

Court concluded it was not because, although Bailey had mentioned “convincing mosaic” by name in his general discussion of 

the law and his objections to the report about his disparate treatment claim, he never tied his “convincing mosaic” evidence to his 

disparate treatment claim. Id. at 1274. Bailey was not about “any 

sort of argument” but was expressly about Bailey’s convincing mosaic issue in particular. 

My above description of Bailey accurately portrays what 

happened, what Bailey held, and why it controls this case. That also 

explains why, as I show later, our recent decisions cite Bailey and 

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22-12577 Hull, J., Concurring in part and Dissenting in part 17

follow its holding that a plaintiff forfeits the “convincing mosaic”

issue by failing to raise it squarely in the district court. 

2. Berry

In Section IV, the Court argues that our Bailey “stands contrary to our decision in Berry,” and we must “reconcile” them. Maj. 

Op. at 25. But Bailey (2021) and Berry (2023) involved different questions, and there is no conflict between them that needs reconciling. 

As background, the Berry plaintiff claimed she was terminated in retaliation for complaints of race discrimination. Id. at 

1304. The Berry appeal involved only retaliation claims brought 

under Title VII and § 1981. Id. at 1307. At the outset, the Berry

Court states: “Both statutes require the same proof and analytical 

framework,” and “[s]o we analyze the claims together.” Id.

Then, the Berry Court separated its opinion into two parts: 

(1) an analysis of Berry’s retaliation claims under the McDonnell 

Douglas framework, examining the prima facie case, the legitimate 

reason for Berry’s termination, and pretext in Section III.A. and (2) 

a separate analysis of her retaliation claims under the alternative 

convincing mosaic approach, examining whether Berry’s circumstantial evidence of any kind created a reasonable inference of retaliatory intent in Section III.B. Id. at 1307-13. 

As further background, as to her retaliation claims, it is undisputed that the Berry plaintiff “argued” the “convincing mosaic” 

issue in opposing summary judgment in the district court. Here 

again is what the Berry Court itself said as to the plaintiff’s retaliation claims:

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18 Hull, J., Concurring in part and Dissenting in part 22-12577

Berry responded [to her employer’s summary judgment motion] that she had established a prima facie 

case because of the close temporal proximity between her protected activity and termination. And 

she argued that [her employer’s] justification for her 

termination was pretextual. Berry also argued that she 

presented a convincing mosaic of circumstantial evidence 

of retaliation.

Id. at 1306-07 (emphasis added). Berry did not involve a plaintiff who 

merely intoned the words “convincing mosaic” and thus failed to 

sufficiently raise the “convincing mosaic” issue in the district court. 

Rather, in Berry, the plaintiff advanced the same “issue” in 

the district court and on appeal—whether “she presented a convincing mosaic of circumstantial evidence that raises a reasonable 

inference of retaliation.” Id. at 1311. The Berry Court explicitly 

said: “Berry argues that even if her claims fail under the McDonnell 

Douglas framework, her claims survive because she presented a 

convincing mosaic of circumstantial evidence that raises a reasonable inference of retaliation.” Id. And “[i]f a party presents an issue 

to the district court, she may make any argument in support of that 

issue on appeal.” Id. at 1312.

What changed on appeal was Berry’s specific “arguments” 

falling under the same “convincing mosaic” umbrella. See id. (explaining the defendant Crestwood complained “that Berry did not preserve the convincing-mosaic arguments” she raised on appeal (emphasis added)). 

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The Berry Court rightly rejected the defendant’s forfeiture 

contention because Berry properly preserved her “convincing mosaic” issue by sufficiently raising and arguing it in the district court 

in the summary judgment briefing as to her retaliation claims. Id.

at 1307, 1312. And plaintiff Berry was not limited on appeal to the 

precise “convincing mosaic” arguments she had made in the district 

court in support of the clearly preserved “convincing mosaic” issue. Id. (citing Yee v. City of Escondido, 503 U.S. 519, 534 (1992); HiTech Pharms., Inc. v. HBS Int’l Corp., 910 F.3d 1186, 1194 (11th Cir. 

2018)). 

Berry does not cite, or grapple with, our forfeiture precedent 

in Bailey (or Harris and Bryant) because it had no reason to do so. 

Because the Berry plaintiff raised the “convincing mosaic” issue in 

the district court as to her retaliation claims, Berry is not this case. 

Rather, this case falls directly under Bailey, where the plaintiff failed 

to squarely raise the convincing mosaic issue in the district court. 

And for this particular case, even if our 2023 Berry somehow creates 

a potential conflict (which it does not), our 2021 Bailey is first in 

time and controls.6

6 The timing perhaps sheds light on what’s really going on. The defendants’ 

brief relied on Bailey. Berry was decided on October 27, 2023, after all briefs 

were filed but before oral argument in this case on November 15, 2023. Yet 

for ten months the plaintiffs have not filed a Rule 28(j) letter citing to Berry. 

Rather, the Court itself has seized upon Berry, and, respectfully, misdescribed 

it and tried to create a phantom conflict to avoid our Bailey forfeiture precedent. 

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20 Hull, J., Concurring in part and Dissenting in part 22-12577

III. ANALYSIS AS TO McCREIGHT AND WESTER

The separate age-discrimination section of the plaintiffs’ 

summary judgment response did not mention, much less tie, the 

“convincing mosaic” theory to their age claims. This omission was 

glaring because the plaintiffs’ response did raise and tie the evidence to the “convincing mosaic” issue as to McCreight’s sex-plus 

claim. Thus, as in Bailey, McCreight and Wester forfeited the “convincing mosaic” issue as to their age claims by failing to advance it 

in the district court and raising it for the first time on appeal. 

My conclusion focuses on what actually occurred in the 

briefing in this particular case. Here, the district court addressed 

what the plaintiffs raised and briefed as to their age claims, and the 

plaintiffs are not permitted to raise new issues for the first time on 

appeal. Plaintiffs can choose how to litigate their cases in the district court and did so here. 

IV. CONSEQUENCES OF THE NEW NO-FORFEITURE 

RULE 

I recognize the plaintiffs’ age claims fail on appeal, whether 

for procedural reasons (forfeiture) or for substantive reasons (Section IV’s merits analysis). But I think it is my duty to write 

This is not to say courts should not address precedent if not cited by the parties. But it is to say that the plaintiffs have not cited Berry, and thus the Majority, in my view, unfairly accuses the defendants of “ignoring our recent precedent” in Berry. Maj. Op. at 21.

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separately because Section IV not only violates our prior panel 

precedent rule but also has significant untoward consequences.

For starters, Section IV’s new no-forfeiture rule—a plaintiff’s 

stating the basic summary judgment standard preserves all issues—

means district courts will not have the required fair notice of the 

issues to be decided. To defeat summary judgment, plaintiffs routinely use one or more evidentiary tools: (1) direct evidence; (2) circumstantial evidence under McDonnell Douglas’s three-step burdenshifting framework; and (3) circumstantial evidence under the 

“convincing mosaic” theory. Our precedent contains distinct and 

different analytical factors in each approach. Plaintiffs need to alert 

both the district court and the defendants which evidentiary tools 

and analytical factors they rely on. That is only fair notice. But the 

Court’s new no-forfeiture rule absolves plaintiffs of that fair-notice 

duty.

In turn, the new no-forfeiture rule deprives this appellate 

court of the benefit of the district court’s analysis, in the first instance, applying the different and distinct evidentiary approaches 

to the summary judgment record, which is often voluminous in 

discrimination cases. This is a case in point. There was no analysis 

in the district court’s order of all the circumstantial evidence under 

the “convincing mosaic” issue because the plaintiffs briefed, and 

thus the district court addressed, only the McDonnell Douglas issue. 

Given these consequences and our forfeiture precedent, I 

concur only in the judgment in Section IV of the Court’s opinion, 

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22 Hull, J., Concurring in part and Dissenting in part 22-12577

and respectfully dissent from the Court’s failure to follow our forfeiture precedent as to the plaintiffs’ age claims.7

V. UNPUBLISHED DECISIONS FOLLOWING BAILEY

One last concern. While I rarely cite non-published decisions, the Majority’s failure to follow Bailey in Section IV will be 

readily noticed by employment lawyers as conflicting with recent 

non-published decisions. So, let’s just acknowledge and be candid 

about them. 

While not binding, this Court, often citing Bailey, has correctly held in many recent unpublished decisions that a plaintiff’s 

failure to raise explicitly the “convincing mosaic” issue in the district court forfeits that issue on appeal. See, e.g., Subotic v. Jabil, Inc., 

No. 22-13880, 2024 WL 797140, at *6-7 & *6 n.4 (11th Cir. Feb. 27, 

2024) (citing Bailey and holding, as to plaintiff’s discrimination 

claim, he forfeited his “convincing mosaic” theory by raising it for 

7 As an aside, I am sympathetic to the view that perhaps the “convincing mosaic” issue should be the primary issue and the McDonnell Douglas issue “relegate[d] . . . to the sidelines.” See Tynes v. Fla. Dep’t of Juv. Just., 88 F.4th 939, 958 

(11th Cir. 2023) (Newsom, J, concurring). But, to date under our forfeiture 

precedent, they remain separate issues for good reasons—so the district court 

and the parties have fair notice of the issues to be addressed, and then our 

Court has the benefit of the district court’s analysis of each issue.

Indeed, our circuit precedent properly allows plaintiffs in discrimination cases 

to raise both issues alternatively. Most litigants do just that. The problem 

here is the plaintiffs elected to raise only the McDonnell Douglas issue in the 

district court as to their age claims. We should not sacrifice our well-established forfeiture precedent because they have elected not to do so.

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the first time on appeal); Lewis v. Sec’y of the U.S. Air Force, No. 20-

12463, 2022 WL 2377164, at *11 (11th Cir. June 30, 2022) (citing 

Bailey and holding “Lewis has abandoned [her “convincing mosaic”] argument by failing to raise the issue before the district 

court”); Skelton v. Birmingham Airport Auth., No. 20-13982, 2021 WL 

4476800, at *3 (11th Cir. Sept. 30, 2021) (citing Bailey and noting a 

plaintiff whose claim fails under McDonnell Douglas may survive 

summary judgment through a “convincing mosaic” of circumstantial evidence, but holding plaintiff waived the “convincing mosaic” 

issue by failing to raise it below); Corley v. Mercedes-Benz U.S. Int’l, 

Inc., No. 21-11986, 2022 WL 2345808, at *3 n.3 (11th Cir. June 29, 

2022) (citing our forfeiture precedent in Access Now, 385 F.3d at 

1331, and noting a discrimination claim can proceed under either 

the McDonnell Douglas framework or “convincing mosaic” theory, 

but analyzing plaintiff’s claim under only the McDonnell Douglas 

framework because plaintiff did not raise the “convincing mosaic” 

theory in the district court, so that issue was not properly before 

us); Jest v. Archbold Med. Ctr., Inc., 561 F. App’x 887, 888-89 (11th Cir. 

2014) (predating Bailey but citing Access Now and holding plaintiff 

failed to establish a prima facie case of race discrimination under 

McDonnell Douglas and forfeited the “convincing mosaic” issue by 

failing to raise it in the district court).8 

In its footnote 11, the Majority argues these five nonpublished decisions “do not prove the point” my partial dissent 

8 As now allowed, the defendants’ appellate brief cited the non-published Jest

decision, in addition to our published Bailey. See Fed. R. App. Proc. 32.1. 

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suggests because two of them (Corley and Skelton) “perform a typical summary judgment analysis.” Maj. Op. at 27 n.11. Not correct. 

In Corley and Skelton, the “typical summary judgment analysis” performed in those cases was expressly under the McDonnell Douglas

framework, as the alternative convincing mosaic approach was forfeited. See Corley, 2022 WL 2345808, at *3-4 & n.3; Skelton, 2021 

WL 4476800, at *3-4. 

And contrary to the Majority’s footnote 11, I respectfully 

submit that the Subotic and Lewis decisions also hold directly and 

expressly that the plaintiff forfeited a “convincing mosaic” issue by 

not raising it in the district court. See Subotic, 2024 WL 797140, at 

*6 n.4; Lewis, 2022 WL 2377164 at *11.

In its same footnote 11, the Court also cites four different 

unpublished decisions “since Berry” that the Court asserts “rejected 

the idea that the words ‘convincing mosaic’ need to be used at the 

district court for us to consider a case under the ordinary summary 

judgment standard.” Maj. Op. at 27 n.11. This is also incorrect. 

Those four unpublished decisions never use the word “forfeiture” 

anywhere because they did not involve a defendant arguing that the 

“convincing mosaic” issue was forfeited. What’s more, Berry is 

cited in only footnotes and only for the general propositions that a 

plaintiff may survive summary judgment using the alternative “convincing mosaic” approach and that a “convincing mosaic” is a metaphor, not a test, whereby a plaintiff may use circumstantial evidence to attempt to create a jury issue. 

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At bottom, the unpublished decisions I cite above follow Bailey, as they must, and the unpublished decisions cited in the Majority’s footnote 11 do not involve a forfeiture issue at all, much less 

one like Bailey and this case. The only inconsistency here is not 

between my cited unpublished decisions and the Majority’s, but 

with the Majority’s instant published decision that fails to follow 

our Bailey precedent.

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