McDonnell Douglas and the “Convincing Mosaic”: Questions Remain After 11th Cir. And U.S. Supreme Court Rulings
Confronted with a claim of discriminatory termination or retaliation, an employer’s defensive strategy most often centers on marshalling facts and evidence to—eventually—support a motion for summary judgment that leans heavily—if not exclusively—on the argument that any adverse employment actions taken were based on legitimate and non-discriminatory business reasons that the employee will not be able to show were pretextual. This approach began with the burden-shifting framework described by the Supreme Court in its seminal 1973 decision, McDonnell Douglas Corp. v. Green.
The McDonnell Douglas burden-shifting framework in discrimination and retaliation claims works as follows: (1) the employee makes a prima facie showing of discrimination; (2) the employer rebuts the showing by offering a legitimate non-discriminatory reason for the employment decision; and (3) the employee shows the employer’s proffered reason is a pretext for discrimination.
Courts have long struggled with, and disagreed about, how to apply this burden-shifting framework on summary judgment—if at all. And on December 5, 2025, in Ismael v. Roundtree, et al., the Eleventh Circuit took “one more swing” in what it called the “McDonnell Douglas game of whack-a-mole,” effectively foreclosing on the above defensive strategy. The Court explained that “a plaintiff’s inability to disprove the defendant’s rationale cannot be the sole grounds for summary judgment.”[1] Instead, in the Eleventh Circuit, along with the Fourth, Seventh, and Ninth, an employee unable to show pretext may still avoid summary judgment by pointing to a “convincing mosaic” of evidence from which a jury could reasonably infer discrimination. Lest this be confused for some new judge-made concept, the Eleventh Circuit explains that “despite its flowery language,” it is simply a “stand-in for the Rule 56 summary judgment standard.”[2]
Suffice it to say, employers cannot bank on summary judgment if an employee is unable to show pretext. The employer must still make the fundamental showing—that there is no genuine dispute of material fact.
That being said, this ruling raises questions worthy of serious consideration. For example, if the record evidence will not support a showing that the non-discriminatory reasons for the employer’s actions were insincere (i.e., pretextual), how likely is it that this same evidence—taken as a whole (i.e., a convincing mosaic)—will support a reasonable inference of discrimination in some other way? The Eleventh Circuit clearly considered this question, noting in Ismael that “while [it] has no published opinion finding the requisite summary judgment inference after a plaintiff failed on pretext, we have recognized the possibility[.]” That is to say, it is theoretically possible, which is how one describes something that is unlikely without actually calling it “unlikely.”
It would, therefore, seem that faulting a lower court for disposing of the case on the grounds that the employee failed to show pretext—as opposed to showing a jury could not reasonably infer discrimination in some other way—elevates form over substance. In most cases, would they not be the same thing? For example, in the context of a retaliation claim, if the employee cannot show pretext, it is axiomatic the employee cannot show the required “but-for” causation either. Would the Eleventh Circuit have the lower court engage in the same analysis twice—but simply call it something else? Is this merely semantics?
Unfortunately, the Supreme Court has declined multiple invitations to address disagreements over the proper application of McDonnell Douglas and the myriad of related questions they raise. In the most recent example, on December 8, 2025, the justices declined to review an appeal from the Eighth Circuit, which—along with the First, Second, Third, Fifth, Sixth, District of Columbia, and Federal Circuits—requires application of the McDonnell Douglas framework to summary judgment regarding discrimination and retaliation claims (in the absence of direct evidence). Unlike in the Eleventh Circuit, and others, if the employee fails to show pretext, they cannot survive summary judgment.
Considering comments from multiple sitting justices critical of the McDonnell Douglas framework’s application on summary judgment, the sharp divide among the Circuits, and the fact that McDonnell Douglas continues to be cited about 2,000 times a year (a total of 57,000 lower court citations as of 2019), it seems it is only a matter of when (the right test case comes along), not if, the Supreme Court will take these issues up.
What does this mean for employers until then?
If you are in the Eleventh, Fourth, Seventh, or Ninth Circuits, make it clear that the employee’s failure to show pretext is not the sole grounds on which you are seeking relief. To that end, do not couch your arguments in terms of pretext exclusively. Supply the lower court with additional discrete arguments grounded expressly in the ordinary summary judgment standard—even if these arguments are based on the same evidence. The lower court should be able to craft an order that makes equally clear the relief is not solely on pretext grounds.
In the remaining Circuits, exclusive reliance on a pretext argument is done at your own peril. Notwithstanding the controlling precedent in those courts, your case could be the one the Supreme Court chooses to take up. Underdeveloped arguments and an underdeveloped record will make it more difficult to advocate for affirmance in the wake of new guidance on the McDonnell Douglas framework.
The lawyers at MHS are experienced in handling all kinds of discrimination and retaliation claims and developing effective defensive strategies to account for this shifting legal landscape. Should you be facing such claims, or the threat of such claims, please contact the author of this post or one of the many attorneys at MHS.