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Recently, Justices Thomas and Gorsuch have questioned whether the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) framework remains the appropriate standard in certain employment related cases, arguing in Hittle v. City of Stockton, 145 S. St. 759, 763 (2025) (Thomas, J., dissenting from denial of certiorari) that the framework has instead spawned "widespread confusion" that "may distort a lower court's analysis" in the face of ample evidence that "is more than likely sufficient [] to establish a genuine dispute of material fact as required by Rule 56."
The Eleventh Circuit weighed in with Ismael v. Roundtree, No. 25-10604 (11th Cir. Dec. 5, 2025), and held that a federal judge in Georgia "improperly conflated" the pretext analysis of McDonnell Douglas, and the "convincing mosaic standard" when granting summary judgment. The Eleventh Circuit reaffirmed that even if a plaintiff cannot satisfy McDonnell Douglas framework, the district court must still apply traditional Rule 56 principles to determine whether a genuine issue of material fact exists before granting summary judgment.
Historical Context: McDonnell Douglas Framework
Historically, courts have relied on the McDonnell Douglas framework to analyze circumstantial evidence of discrimination. The three-part evidentiary burden shifting framework set forth includes the following steps: (i) the employee must demonstrate a prima facie case; (ii) the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse action; and (iii) if the employer provides a legitimate reason, the employee has the opportunity to demonstrate that the employer's proffered rationale is pretextual. However, certain courts have noted that the McDonnell Douglas framework is not a substantive rule. Rather, it is an evidentiary aid that plays no role at trial.
In comparison, on motions for summary judgment, courts have used the "convincing mosaic standard," as articulated in Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). There, the court held that (1) "a 'plaintiff will always survive summary judgment if he presents circumstantial evidence that creates a triable issue concerning the employer's discriminatory intent' and (2) that a 'triable issue of fact exists if the record, viewed in a 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." As such, under the "convincing mosaic standard," courts must consider the totality of the evidence when ruling on summary judgement motions as opposed to a rigid step-by-step analysis.
Thus, a plaintiff who cannot establish a prima facie case under McDonnell Douglas is nonetheless still entitled to a full review under the "convincing mosaic standard."
Factual and Procedural Background
In his lawsuit, plaintiff Ahmed Ismael made claims of retaliation in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq., and conspiracy to deprive him of equal protection under the law in violation of 42 U.S.C. §§ 1985 and 1986. Ismael's claims stemmed from his employment with the Richmond County Sherriff's Office, during which Ismael claims that defendants unlawfully harassed and retaliated against him.
After amending his original complaint twice, Ismael retained only his § 1981 retaliation claim. Ismael and the defendants cross-moved for summary judgment, and despite Ismael presenting circumstantial evidence in support of his claim, the district court granted defendants' motion.
The district court found that Ismael established a prima facie case under the burden-shifting framework in McDonnell Douglas, and that the defendants "offered a legitimate non-discriminatory reason for" terminating Ismael. The court further noted that Ismael "failed to prove pretext" through his arguments.
Addressing Ismael's argument of "a 'convincing mosaic' of retaliation," the district ruled that there was no need to "decide if the convincing mosaic framework also serves as an independent basis for establishing a retaliation claim brought under § 1981."
Following this, Ismael appealed to the Eleventh Circuit.
The Eleventh Circuit Weighs In
On appeal, the Eleventh Circuit reversed the summary judgement order and instructed the district court to apply the "convincing mosaic standard." In its holding, the Eleventh Circuit referred to the McDonnell Douglas framework as "famous yet ill-understood."
Referencing Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011), the Eleventh Circuit held that "McDonnell Douglas . . . 'never was intended to be, the sine qua non for a plaintiff to survive a summary judgment motion in an employment discrimination case.'" The Eleventh Circuit further added "the District Court only analyzed Ismael's claim through the narrow lens of McDonnell Douglas pretext" which failed to analyze "whether Ismael's circumstantial evidence, when artfully adhered together and viewed as one, allows a reasonable juror to envision an image of retaliation and find in Ismael's favor."
The Eleventh Circuit not only rejected the district court's reasoning, but clarified that in order to establish pretext, a plaintiff must show the employer's proffered reason was false and that discrimination was the real reason for the adverse employment action. The court found that requiring a plaintiff to negate the defendant's explanation on summary judgment has at least two defects: (1) this is not required to succeed at trial; and (2) it takes away from the plaintiff's affirmative case that the driving cause for the adverse employment action was illegal discrimination or retaliation. Thus, a plaintiff who cannot establish a prima facie case under the McDonnell Douglas framework is nonetheless still entitled to a full review under the convincing mosaic standard.
Ultimately, the Eleventh Circuit found that the "convincing mosaic standard" controls, finding that when a plaintiff cannot satisfy a prima facie case, "a district court must turn to evaluate the evidence before it, applying the duly promulgated Rule 56 summary judgment standard."
The Eleventh Circuit's Instructions to District Courts
In its decision, the Eleventh Circuit offered a "roadmap" for district courts to "properly review summary judgment motions."
Under the court's instructions, if a plaintiff can establish a prima facie case, they are entitled to a rebuttable presumption of illicit intent. Thus, if a defendant fails to preoffer evidence of a legitimate reason for the adverse employment action, summary judgment in favor of the plaintiff is appropriate.
If the defendant is able to present evidence that successfully rebuts the presumption, the court must ask whether "the record, viewed in a light most favorable to the plaintiff, presents a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination [or retaliation] by the decision maker." A showing of pretext (or lack thereof) would be relevant, but a plaintiff's inability to disprove the defendant's rationale "cannot be the sole grounds for summary judgement."
Conversely, if a plaintiff cannot establish a prima facie case, "she does not automatically lose on summary judgement... [r]ather than lose by default, the consequence is that the plaintiff must produce enough evidence [] to demonstrate a material issue of triable fact." As such, the district court should immediately advance directly to the "convincing mosaic inquiry."
What Might Employers Expect?
As a result of the Eleventh Circuit's emphasis on the "convincing mosaic standard," employers should anticipate that plaintiffs may increasingly rely on the "convincing mosaic" theory as an alternative pathway to defeat summary judgment and proceed to trial, which may in turn result in increased litigation. However, this standard is not new. Rather, the Eleventh Circuit simply clarifies the standard and when it should apply.
Under this clarified framework, an employee's failure to establish pretext does not automatically guarantee summary judgment for the employer. Employers may wish to evaluate the totality of the circumstances, considering whether the sequence of events leading up to an adverse employment action might allow a reasonable fact finder to infer discriminatory intent. Inconsistent documentation, deviations from established policies, or uneven application of workplace rules may contribute to the broader "mosaic" that can support a plaintiff's discrimination or retaliation claim.
Nevertheless, employers should not be discouraged. While an employee's inability to identify comparators or demonstrate pretext does not automatically warrant summary judgment, a plaintiff's inability to satisfy the prima facie burden or show pretext may often reflect a lack of substantive evidence.
To reduce litigation risk, employers may wish to focus on maintaining consistency, clarity, and thorough documentation in employment-related decisions.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
