Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Mark A. Thompson v. DeKalb County, GA, et al
Date: 12-25-2021
Case Number: 19-11260
Judge: Robert J. Luck
Court:
United States Court of Appeals
For the Eleventh Circuit
On appeal from The United States District Court
for the Northern District of Georgia
Plaintiff's Attorney:
Atlanta, GA - Best Discrimination Lawyer Directory
Atlanta, GA - Best Discrimination Lawyer Directory
Re: MoreLaw National Jury Verdict and Settlement
Counselor:
MoreLaw collects and publishes civil and criminal litigation information from the state and federal courts nationwide. Publication is free and access to the information is free to the public.
MoreLaw will publish litigation reports submitted by you free of charge
Defendant's Attorney: DeKalb County, Georgia, Attorney’s Office
Description:
Thompson was a senior assistant county attorney for the
DeKalb County law department. He was the lead (and effectively
sole) attorney representing the county in Champion v. DeKalb
County, a breach of contract case initiated by county contractor
Paul Champion in 2010. While investigating the case, Thompson
discovered that Champion had fraudulently overbilled the county
with the assistance of a county employee. Thompson testified
about the fraud before a grand jury in February 2012.
1 Because Thompson—the non-moving party—appeals the district court's
summary judgment for the county, we discuss the facts in the light most favorable to him. See Cowen v. Ga. Sec'y of State, 960 F.3d 1339, 1342 (11th
Cir. 2020) ("In reviewing the propriety of summary judgment, 'we view the
evidence in the light most favorable to the non-moving party.'†(citation omitted)).
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 2 of 37
19-11260 Opinion of the Court 3
In March 2013, Overtis Brantley became the new county attorney. Upon assuming her role, Brantley held a meeting with the
entire law department. At the meeting, Brantley mentioned that
she had spoken with the county's chief executive officer, who said
that he was "tired of looking at all these older people†and "wanted
the [c]ounty workforce to look younger.†She said that the chief
executive asked her, "Why can't we have younger people?†Brantley brought up the chief executive's comments "in the context of
the fact that she . . . wanted to hire baby lawyers in the law department.†She said that it was her "goal to hire baby lawyers†and that
she was "filling the nursery with baby lawyers.†Brantley later used
the phrase "baby lawyers†at "almost every meeting.†Whenever
Brantley was hiring a new person to the law department, she
would say: "I've got another baby lawyer. I'm filling the nursery.â€
Brantley also met with Thompson "one on one†to discuss
his workload. Thompson indicated that he felt overworked and
needed assistance with Champion. The meeting became "very
weird†because Brantley "mocked†Thompson and "ma[de] crazylooking faces†at him. She belittled him by insinuating that he was
"naïve†and "taking it too seriously . . . that [he] had caught people
stealing in the [c]ounty.â€
The county hired outside counsel to help Thompson with
Champion about a year after his request. The county's outside
counsel moved for summary judgment based on sovereign immunity, and after the state trial court denied the motion, the
county began preparing an interlocutory appeal.
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 3 of 37
4 Opinion of the Court 19-11260
Thompson's immediate supervisor, Laura Johnson, directed
Thompson to make sure that the county's appeal had a "clean record†with no extraneous facts regarding the fraud. On November
13, 2014, Thompson told Johnson that she was making a "mistake
of enormous consequence†by excluding the fraud-related facts
from the appellate record. Johnson acknowledged that she and
Thompson had "very different opinions†but concluded that it was
"in the [c]ounty's best interest . . . to simplify†and exclude the
fraud-related facts. After Johnson instructed outside counsel to file
the notice of appeal without the fraud-related facts, Thompson informed Johnson that he wished to "withdraw from the case†and
did not "want [his] name on the notice of appeal†because Johnson's position was "totally contrary to [his].â€
On December 3, 2014, Thompson requested Johnson's signature on his notice of substitution of counsel. Johnson explained
that she did not need to sign the notice because no one was being
substituted; it was just a withdrawal. But Thompson "insist[ed]â€
that either Johnson or Brantley sign the notice. He claimed that
the applicable rule was "plain and straightforward†and that "[t]he
[c]ounty should follow the law.â€
Brantley and Johnson met with Thompson to discuss his
withdrawal from the case. During the meeting, Brantley
"mock[ed]†and "berat[ed]†Thompson, repeatedly telling him that
he "didn't work well with others,†"always thought that [he] was
the smartest person in the room,†"was not a team player,†and
"acted like a child†who would "pick up [his] toys and leave†when
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 4 of 37
19-11260 Opinion of the Court 5
he couldn't get his way. Brantley said she was "upset†about
Thompson's withdrawal from Champion, but "her reasoning
seemed artificial†to Thompson. "The only thing that seemed to
be real [to Thompson] was [that] [Brantley] was intent on berating
[him].†He tried explaining to Brantley and Johnson that he had an
"ethical problem†with Johnson's handling of the appeal, but Brantley "guffawed and just laughed at that[,] as if [it] was just nonsense.â€
Johnson took notes about the meeting. According to Johnson's notes, Brantley told Thompson that "she considered his demand to withdraw a 'temper tantrum'†and that he offended her
by saying "he did not want to be 'associated with' the kinds of decisions being made in the case.†Johnson told Thompson that he
offended Johnson, too, by calling her "dumb†earlier in the meeting. Johnson later testified that Thompson was "really being quite
hostile†throughout the meeting, and while he wasn't yelling or
pounding his fists, Thompson did "raise[] his voice.â€
Brantley eventually signed Thompson's notice of substitution, which was filed on December 5, 2014. That same month,
Brantley informed Thompson that she considered his withdrawal
to be a fireable offense.
On May 6, 2015, Johnson visited Thompson's office to inform him that Champion had filed a motion involving Thompson.
Thompson asked Johnson for more details about the motion, but
Johnson refused to give him additional information. After Thompson read the motion and realized that Champion was seeking to
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 5 of 37
6 Opinion of the Court 19-11260
hold Thompson personally liable for Champion's attorney's fees,
Thompson went to Johnson's office to ask her what had happened
in the case. Johnson said she didn't know. Thompson responded
that it was unacceptable for her to refuse to answer his questions,
and Johnson replied, "You're interrogating me,†and asked him to
leave. After Johnson asked him to leave a second time, Thompson
left and sent an email to Brantley requesting that Brantley "schedule a meeting ASAP†because Johnson was "refusing to answer [his]
questions about the case†and "withholding information.†During
his meetings with Johnson that day, Thompson was "upset†and
"firm with her,†but he wasn't "angry.â€
Johnson took notes about the May 6 meetings with Thompson. According to Johnson's notes, Thompson discussed Champion's motion "in a hostile way,†accused Johnson of lying, and
called outside counsel incompetent. Johnson relayed these observations to Brantley. According to Thompson, he did not accuse
Johnson of lying, and he did not remember calling outside counsel
incompetent.
Brantley and Johnson met with Thompson again, this time
to discuss his May 6 meetings with Johnson. Brantley "just went
off on†Thompson about him "acting like [he's] the smartest person
in the room†and behaving "like a child†who "can't get along with
others.†Brantley repeatedly said that Thompson was "looking really ugly again†because of the way he was acting. Thompson explained that he didn't trust outside counsel and that he wasn't confident outside counsel would adequately defend him against
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 6 of 37
19-11260 Opinion of the Court 7
Champion's motion. Thompson was "upset†during the meeting,
but he wasn't "in any bad way†and he was "certainly coherent.â€
Thompson later met with Johnson to discuss an affidavit for
the response to Champion's motion. Champion's motion claimed
that Thompson had "fabricated . . . allegations and knowingly
signed and filed a false pleading.†But, according to Thompson, he
had made allegations that he believed to be true based on information that he had received from a county employee, and he later
withdrew those allegations after discovering they were false.
Thompson told Johnson, "We need to say that the [county employee] lied to me.†But Johnson responded that they couldn't
"throw [the county employee] under the bus.â€
On May 29, 2015, Thompson met with Brantley, Johnson,
and outside counsel to discuss Champion's motion for attorney's
fees. Brantley was "riding†Thompson from the beginning of the
meeting, telling him that he wasn't a "team player†and that he always acted "like he's the smartest guy in the room.†Thompson
responded that he was a team player but that "almost everybody
was lying to [him].†Thompson explained that he didn't want to
"fall on [his] sword†to protect the county employee who had given
him false information, and he claimed that Johnson had "set
[Thompson] up†by forcing him to rely on that county employee.
Brantley reacted as though Thompson was "losing [his]
headâ€â€”as if Thompson's words were "terrible.†She continued
"berating†him, and at the end of the meeting, Brantley told
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 7 of 37
8 Opinion of the Court 19-11260
Thompson, "I've had it with you. You need to start looking for
another job.â€
On June 19, 2015, Brantley and Johnson met with Thompson for a final time. Brantley asked Thompson whether he had
"found another job.†Thompson said that he hadn't, and Brantley
responded, "Well, you've had a couple of weeks to find another
job.†She continued, "I am terminating you, and the reason
is . . . because you withdrew from the Champion case. And you can
either resign in lieu of termination, or I will terminate you next
Friday.†Brantley "explicitly told [Thompson] she was terminating
[him] because [he] withdr[e]w from the Champion case.†She also
said she might be willing to give Thompson severance if he resigned.
Thompson later emailed Brantley telling her what he would
accept as severance. On June 25, 2015, Brantley rejected Thompson's severance request and informed him that his termination
would be effective as of 5:00 p.m. the following day. Brantley then
wrote Thompson a letter elaborating on the reasons for his termination. The letter stated:
I have long been concerned by your lack of demonstrated ability to discuss legal issues in a clear and concise way. You have also responded to stressful litigation situations in a hostile and arrogant manner when
interacting with me and others within this office during recent months. This type of behavior is not consistent with the team environment I have been working to build in the Law Department. I hope and
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 8 of 37
19-11260 Opinion of the Court 9
believe that you will be able to find a work situation
that will be a better match for your skills and temperament.
Thompson was fifty-four years old when he was fired.
Twelve of the thirteen lawyers hired by the county after Thompson's termination were in their thirties.
PROCEDURAL HISTORY
On May 10, 2016, Thompson sued DeKalb County in Georgia state court, but the county removed the case to the Northern
District of Georgia. Thompson claimed that the county discriminated against him because of his age, in violation of the Age Discrimination in Employment Act.
2
He alleged that "[he] was over
the age of forty at his terminationâ€; that the county "sought to replace older lawyers with younger lawyersâ€; and that "[he] was replaced by a younger attorney under the age of forty.â€
The county moved for summary judgment. It argued that
Thompson couldn't establish a prima facie case of age discrimination under McDonnell Douglas Corp. v. Green, 411 U.S. 792
2 Thompson also raised federal race discrimination claims against the county
and Brantley in her individual capacity and a state retaliation claim against the
county. The district court granted summary judgment for the county and
Brantley on the federal claims and remanded the state claim to state court.
Thompson does not appeal the district court's summary judgment for the
county and Brantley on his federal race discrimination claims and he does not
challenge the district court's remand of his state retaliation claim.
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 9 of 37
10 Opinion of the Court 19-11260
(1973), because Thompson did not establish "that he was replaced
by or lost his position to [a] younger individual.†The county also
argued that Thompson failed to show that its legitimate, non-discriminatory reasons for Thompson's termination were pretexts for
age discrimination.
Thompson opposed the county's motion, arguing that he
satisfied the McDonnell Douglas test and, alternatively, presented
"a convincing mosaic of circumstantial evidence.†Thompson argued that "every person hired after [him] was in his or her thirties,â€
which "unquestionably satisfied [his] prima facie case of age discrimination.†He argued that the county's "shift in justificationâ€
for his termination "alone†was evidence of pretext, and that the
county's hiring pattern, Brantley's ageist "baby lawyer†remarks,
and evidence that Thompson's coworkers thought he was a good
and well-liked lawyer in the office showed that the county's legitimate, non-discriminatory reasons for his termination were "not
worthy of credence.†Thompson also argued that, in the alternative, he established a genuine issue of fact by presenting "'a convincing mosaic of circumstantial evidence' that raise[d] a reasonable inference that the [county] discriminated†against him.
The magistrate judge recommended that the district court
grant the county's motion. The magistrate judge explained that,
under the McDonnell Douglas test, Thompson had to show "either
[] that [he] was replaced by a person outside of his protected class[,]
or [] that he was treated less favorably than a similarly-situated individual outside of his protected class.†The magistrate judge
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 10 of 37
19-11260 Opinion of the Court 11
concluded that Thompson "failed to show a dispute of material fact
on either of these points.†Because Thompson "failed to meet his
burden of coming forward with competent replacement []or comparator evidence,†the magistrate judge recommended that the district court grant summary judgment for the county.
Thompson objected to the magistrate judge's report, arguing that he established a prima facie case of age discrimination and
presented sufficient evidence of pretext under McDonnell Douglas.
Thompson also argued that he presented a "convincing mosaic of
circumstantial evidence that raise[d] a reasonable inference that the
[county] discriminated . . . against [him],†making "summary judgment . . . [in]appropriate.†He argued that the magistrate judge
didn't address Brantley's "ageist†remarks and the county's hiring
pattern from which "a jury could infer discrimination even without
a comparator or replacement.â€
The district court overruled Thompson's objections and
adopted the magistrate judge's report. The district court agreed
with the magistrate judge that Thompson failed to establish a
prima facie case under the McDonnell Douglas test because
Thompson "presented no evidence that he was replaced by someone outside of his protected class†and "identified no comparator
outside his protected class who was treated more favorably.†The
district court found that the "ageist†remarks were not directed at
Thompson, and that Thompson's age discrimination claim was
"half-hearted at best.†Because Thompson provided "no evidence
that would create a disputed issue of material fact as to being
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 11 of 37
12 Opinion of the Court 19-11260
replaced by someone outside the protected class or treated less favorably than similarly situated individuals outside the protected
class,†the district court concluded that Thompson failed to establish a prima facie case of age discrimination and granted summary
judgment for the county.
STANDARD OF REVIEW
We review de novo the district court's grant of summary
judgment. Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir.
2000). Summary judgment is appropriate when the evidence,
viewed in favor of the non-moving party, id., "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).
DISCUSSION
Thompson argues that the district court erred in granting
summary judgment for the county on his age discrimination claim.
The Age Discrimination in Employment Act provides that "[i]t
shall be unlawful for an employer . . . to discharge any individual
or otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual's age†if that individual is at least forty
years old. 29 U.S.C. §§ 623(a)(1), 631(a).
We apply the McDonnell Douglas burden-shifting framework to age discrimination claims that rely on circumstantial
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 12 of 37
19-11260 Opinion of the Court 13
evidence.3 Sims v. MVM, Inc., 704 F.3d 1327, 1332–34 (11th Cir.
2013). "Under this framework, a plaintiff must first establish a
prima facie case of discrimination.†Id. at 1332. "Next, the defendant must articulate a legitimate, non-discriminatory reason for the
challenged employment action.†Id. "If the defendant articulates
one or more such reasons, the plaintiff is afforded an opportunity
to show that the employer's stated reason is a pretext for discrimination.†Id. "The burden of persuasion always remains on the
plaintiff in an [Age Discrimination in Employment Act] case to
proffer evidence sufficient to permit a reasonable fact finder to conclude that the discriminatory animus was the 'but[]for' cause of the
adverse employment action.†Id. (citation omitted).
Thompson contends that the district court erred in granting
summary judgment on his age discrimination claim for three reasons. First, he argues that he presented a prima facie case of age
discrimination under the McDonnell Douglas test because he was
replaced by a younger lawyer. Second, Thompson argues that the
county's legitimate, non-discriminatory reasons for his termination
3 Thompson argues that Brantley's "ageist†remarks "could very easily constitute direct evidence of an age animus.†But direct evidence, "if believed,
proves the existence of a fact in issue without inference or presumption.†Rojas v. Florida, 285 F.3d 1339, 1342 n.2 (11th Cir. 2002) (citation omitted). Brantley's remarks are not inference-free. See id. (noting that "only the most blatant
remarks, whose intent could be nothing other than to discriminate on the basis
of some impermissible factor†are direct evidence of unlawful discrimination);
see, e.g., Carter v. City of Miami, 870 F.2d 578, 582 & n.10 (11th Cir. 1989)
(collecting cases).
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 13 of 37
14 Opinion of the Court 19-11260
were pretexts because the county shifted its reasons for firing him
and he provided evidence from coworkers that he was "polite,
thoughtful, and helpful.†Third, Thompson argues that, even if he
failed to present a prima facie case of age discrimination, he showed
a convincing mosaic of age discrimination. Thompson contends
that Brantley's "ageist remarks,†the county's hiring pattern, and
the county's "pretextual justification†for his termination together
raised a reasonable inference of the county's discriminatory intent.
We agree with Thompson that he created a genuine dispute
that he was replaced by a younger lawyer. But we affirm summary
judgment for the county because Thompson failed to show that
the county's legitimate, non-discriminatory reasons for his termination were pretexts and because he failed to present a convincing
mosaic of circumstantial evidence that would allow a jury to infer
the county's discriminatory intent.
Prima Facie Case
To establish a prima facie case that an employee was terminated in violation of the Act, the plaintiff must show that: (1) he
was at least forty years of age at the time of his termination; (2) he
was qualified for the position he held; (3) he was terminated; and
(4) he was replaced by someone "substantially younger†than him.
See Kragor v. Takeda Pharms. Am., Inc., 702 F.3d 1304, 1308 (11th
Cir. 2012).
The district court and the parties assumed that Thompson
satisfied the first three parts, and we do, too. But the district court
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 14 of 37
19-11260 Opinion of the Court 15
erred in concluding that Thompson failed to prove the fourth part
of the McDonnell Douglas test.
Thompson satisfied the fourth part by showing that he was
replaced by an attorney substantially younger than him. When
asked whether Thompson was replaced by William Scott—a lawyer twenty-four years younger than Thompson—Brantley answered: "I think that's correct.†Indeed, Scott was the first person
hired after Thompson's termination, only three months after
Thompson's departure. And Scott was certainly "substantially
younger†than Thompson. See, e.g., Carter v. DecisionOne Corp.,
122 F.3d 997, 1003 (11th Cir. 1997) (observing that as little as a
three-year age difference is "legally significant for [Age Discrimination in Employment Act] purposesâ€). This was enough summary
judgment evidence to show a genuine dispute about the fourth part
of the McDonnell Douglas test.
Pretext
Under the McDonnell Douglas test, after a plaintiff establishes a prima facie case of age discrimination, the defendant "must
articulate a legitimate, non-discriminatory reason for the challenged employment action.†Sims, 704 F.3d at 1332. The county
explained that it fired Thompson because: (1) he "withdrew from
the Champion caseâ€; (2) he lacked "demonstrated ability to discuss
legal issues in a clear and concise wayâ€; (3) he "responded to stressful litigation situations in a hostile and arrogant manner when interacting with [Brantley] and others within th[e] office during
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 15 of 37
16 Opinion of the Court 19-11260
recent monthsâ€; and (4) his "behavior [was] not consistent with the
team environment [Brantley] [was] working to build in the Law
Department.†These were legitimate, non-discriminatory reasons
for Thompson's termination, and Thompson doesn't argue otherwise. See Chapman, 229 F.3d at 1034 ("A subjective reason is a
legally sufficient, legitimate, non[-]discriminatory reason if the defendant articulates a clear and reasonably specific factual basis upon
which it based its subjective opinion.â€).
The final step under the McDonnell Douglas test is for the
plaintiff "to show that the employer's stated reason is a pretext for
discrimination.†Sims, 704 F.3d at 1332. Although the district court
did not address pretext, "[w]e may affirm a grant of summary judgment on any ground supported by the record.†Hallums v. Infinity
Ins. Co., 945 F.3d 1144, 1148 (11th Cir. 2019). Because the issue of
pretext was fully briefed and raised at oral argument, we exercise
our discretion to consider it on appeal. See Cuddeback v. Fla. Bd.
of Educ., 381 F.3d 1230, 1236 n.5 (11th Cir. 2004) ("If we were so
inclined, we could remand the pretext issue to the district court to
consider in the first instance. However, where the record is so clear
as to the final outcome of the case and is sufficiently developed for
us to decide the issue, we conclude that a remand here would be a
waste of time and judicial resources.â€).
To show a genuine dispute that the county's "legitimate,
non-discriminatory reason[s]†for firing Thompson were "pretext[s],†Thompson needed to demonstrate that "but[]for†his age,
the county would not have fired him. See Sims, 704 F.3d at 1332.
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 16 of 37
19-11260 Opinion of the Court 17
Because the county's legitimate, non-discriminatory reasons were
"one[s] that might motivate a reasonable employer,†Thompson
needed to address the county's reasons "head on and rebut [them]â€
to survive summary judgment. See Chapman, 229 F.3d at 1030
("[T]he employee cannot succeed by simply quarreling with the
wisdom of [a] reason [that might motivate a reasonable employer].â€).
"[A] reason is not pretext for discrimination 'unless it is
shown both that the reason was false, and that discrimination was
the real reason.'†Springer v. Convergys Customer Mgmt. Grp.
Inc., 509 F.3d 1344, 1349 (11th Cir. 2007) (citation omitted). A
plaintiff must demonstrate "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's
proffered legitimate reasons for its action that a reasonable
fact[]finder could find them unworthy of credence.†Jackson v. Ala.
State Tenure Comm'n, 405 F.3d 1276, 1289 (11th Cir. 2005) (citation omitted). The plaintiff carries the burden to provide evidence
from which "a reasonable fact finder†could conclude that but for
the plaintiff's age, the employer would not have fired him. Sims,
704 F.3d at 1332.
Thompson argues that two key facts demonstrated that the
county's legitimate, non-discriminatory reasons for his termination
were pretexts for age discrimination: (1) the county's "shiftingâ€
justifications for Thompson's termination; and (2) Thompson's
coworkers' "disagree[ment]†with Brantley's beliefs about Thompson's behavior and work performance. But this evidence failed to
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 17 of 37
18 Opinion of the Court 19-11260
show that the county's reasons were false and that discrimination
was the real reason for firing him.
"Shifting†Reasons
Thompson and the dissenting opinion argue that the
county'slegitimate, non-discriminatory reasons for his termination
were pretexts because the reasons were "shifting.†See Cleveland
v. Home Shopping Network, Inc., 369 F.3d 1189, 1194 (11th Cir.
2004) (concluding that the decision maker's "shifting reasonsâ€
could allow a fact finder to question the decision maker's credibility
and infer that adverse employment action occurred for reasons
other than those stated). They rely on his termination letter, noting that the letter "include[d] more reasons than were actually told
to [him] in his termination meeting.†While Brantley "explicitly
told†Thompson on June 19 that "she was terminating [him] because [he] withdr[e]w from the Champion case,†the termination
letter said that Thompson's "lack of demonstrated ability to discuss
legal issues in a clear and concise way,†his "respon[se] to stressful
litigation situations in a hostile and arrogant manner when interacting with [Brantley] and others,†and his failure to behave "consistent[ly] with the team environment†were the bases for his termination.
This evidence did not show "shifting†reasons. Before signing Thompson's notice of substitution in early December 2014,
Brantley told Thompson that she considered his withdrawal from
Champion to be a "temper tantrumâ€; that his withdrawal "upset
herâ€; that he "didn't work well with othersâ€; that he "always
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 18 of 37
19-11260 Opinion of the Court 19
thought that [he] was the smartest person in the roomâ€; that he
"was not a team playerâ€; and that he "acted like a child†who would
"pick up [his] toys and leave†when he couldn't get his way. That
same month, Brantley informed Thompson that she considered his
withdrawal from Champion to be a fireable offense, and she continued to confront Thompson about his unprofessional behavior
until his termination in June 2015. Thompson conceded that the
county's reasons in his termination letter "all . . . stemmed from
the Champion matter.â€
Indeed, all of the county's reasons for firing Thompson—his
withdrawal from Champion, his inability to work with others and
discuss legal issues in a clear and concise manner, and his hostile
reactions to stressful litigation situations—were interrelated, and
Brantley consistently confronted Thompson with concerns about
his behavior from December 2014 through June 2015, when he was
fired. See Zaben v. Air Prods. & Chems., Inc., 129 F.3d 1453, 1458
(11th Cir. 1997) ("Although the company gave differing explanations for the selection of employees to be discharged, saying on the
one hand that seniority played no role in the process and that only
an employee's performance was considered while, on the other
hand, asserting that Lewis was discharged because he had the least
seniority, its reasons are not, as the district court observed, necessarily inconsistent.â€); see also Tidwell v. Carter Prods., 135 F.3d
1422, 1428 (11th Cir. 1998) ("At most, the jury could find that performance was an additional, but undisclosed, reason for the decision; the existence of a possible additional non-discriminatory basis
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 19 of 37
20 Opinion of the Court 19-11260
for Tidwell's termination does not, however, prove pretext.â€);
Schuster v. Lucent Techs., Inc., 327 F.3d 569, 577 (7th Cir. 2003)
("Shifting and inconsistent explanations can provide a basis for a
finding of pretext. But the explanations must actually be shifting
and inconsistent to permit an inference of mendacity.†(internal citation omitted)). The summary judgment evidence showed that
the county's reasons for terminating Thompson did not shift, but
were part of a consistent problem with Thompson withdrawing
from the Champion case.
The dissenting opinion also asserts that a reasonable jury
could find it "odd†that Brantley waited seven months after
Thompson withdrew from Champion to fire him and could "draw
the reasonable inference that Thompson's withdrawal from Champion was not the real reason for his termination.†But Thompson
never argued to the district court or to us that the county's reasons
were pretexts because of the seven months between his withdrawal and termination. Even if Thomson made this pretext argument, the summary judgment evidence was undisputed that Brantley told Thompson as early as December 2014 that withdrawing
from Champion was a "terminable offense.†Brantley didn't fire
him then because Johnson "discouraged†her from doing it. There
was no oddity for the jury to infer.
The dissenting opinion suggests that nothing happened to
Thompson in the seven months between his withdrawal from
Champion and his termination. But this is not supported by the
record. Thompson testified that Brantley repeatedly admonished
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 20 of 37
19-11260 Opinion of the Court 21
him in the months before his termination. For example, at one
meeting after Thompson withdrew from Champion, Brantley "berat[ed]†him because he "was not a team player†and he "didn't
work well with others.†At another meeting, Brantley told Thompson that she was still "upset†that he had withdrawn from Champion and that he couldn't "get along with others.†And at a third
meeting, Brantley was "riding†Thompson again for not being a
"team player.â€
Coworkers' Observations
Thompson also argues that the county's reasons were pretexts because Brantley's description of his behavior conflicted with
coworkers' observations "that he communicated in a coherent
manner†and that he was "polite, thoughtful, and helpful.†And the
dissenting opinion contends that the county's legitimate, non-discriminatory reasons for firing Thompson were "belied . . . by his
co-workers' opinions of him.†But the "inquiry into pretextâ€
doesn't "center[] on†Thompson's coworkers' perspectives or "reality as it exists outside of the decision maker's headâ€; rather, it
turns on the decision maker's "beliefs.†See Alvarez v. Royal Atl.
Devs., Inc., 610 F.3d 1253, 1266 (11th Cir. 2010). An employer
"may fire an employee for a good reason, a bad reason, a reason
based on erroneous facts, or for no reason at all, as long as its action
is not for an unlawful reason.†Jefferson v. Sewon Am., Inc., 891
F.3d 911, 924 (11th Cir. 2018) (alteration adopted) (citation omitted).
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 21 of 37
22 Opinion of the Court 19-11260
Thompson did not rebut Brantley's subjective beliefs that
prompted his termination. See Chapman, 229 F.3d at 1034 (concluding that subjective beliefs are "legally sufficient, legitimate,
non[-]discriminatory reason[s]†if the decision maker "articulates a
clear and reasonably specific factual basis†for her beliefs). It was
undisputed that in the months before he was fired Brantley admonished Thompson for his behavior: Thompson conceded that Brantley repeatedly told him that he was acting "ugly†and wasn't a
"team playerâ€; Thompson admitted to criticizing Johnson for
"set[ting] [him] upâ€; Thompson didn't deny that Brantley accused
him of acting disrespectfully during the May 29 meeting; and
Thompson didn't dispute that Johnson relayed her concerns to
Brantley regarding Thompson's May 6 conduct. While Thompson
denied accusing Johnson of lying and didn't remember calling outside counsel incompetent, Thompson didn't refute Brantley's subjective belief that Thompson "was making [Johnson] miserable
based on the few things [Johnson] would share with [Brantley]
about [Thompson's] conduct, particularly after the motion for attorney fees came in†on May 6.
* * * *
Considering Thompson's evidence of pretext together, see
Ross v. Rhodes Furniture, Inc., 146 F.3d 1286, 1292 (11th Cir. 1998),
we conclude that Thompson did not establish a genuine dispute
that the county's legitimate, non-discriminatory reasons for firing
Thompson were pretexts for age discrimination.
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 22 of 37
19-11260 Opinion of the Court 23
Convincing Mosaic
Thompson contends that, even if he didn't establish a prima
facie case under McDonnell Douglas, he presented a convincing
mosaic of circumstantial evidence that the county fired him for age
discrimination. He argues that three parts of the record "foreclosed
the granting of summary judgmentâ€: (1) Brantley's "ageist†remarks; (2) the county's "hiring practicesâ€; and (3) the county's "pretextual justification†for his termination.
A "plaintiff will always survive summary judgment if he presents circumstantial evidence that creates a triable issue concerning
the employer's discriminatory intent.†Smith v. Lockheed-Martin
Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). "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 decision[]maker.'†Id. (internal footnote and citation omitted). "A
'convincing mosaic' may be shown by evidence that demonstrates,
among other things, (1) 'suspicious timing, ambiguous statements,
and other bits and pieces from which an inference of discriminatory
intent might be drawn,' (2) systematically better treatment of similarly situated employees, and (3) that the employer's justification
is pretextual.†Lewis v. City of Union City, 934 F.3d 1169, 1185
(11th Cir. 2019) (alteration adopted and citation omitted). A convincing mosaic "may consist only of the plaintiff's prima facie case
and of the evidence rebutting the employer's proffered reasons.â€
Holland v. Gee, 677 F.3d 1047, 1056 n.2 (11th Cir. 2012).
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 23 of 37
24 Opinion of the Court 19-11260
The plaintiff carries the ultimate burden of providing sufficient evidence to "yield[] a reasonable inference of the employer's
discrimination.†Smith, 644 F.3d at 1346 n.86; see Holland, 677
F.3d at 1056. After all, "convincing mosaic†is just a "metaphorâ€
for making a circumstantial case. Ortiz v. Werner Enters., 834 F.3d
760, 764–65 (7th Cir. 2016) (explaining that the "convincing mosaic†is "not a legal test of any kind†but a "metaphorâ€).
"Ageist†Remarks
Thompson argues that a jury could infer discriminatory intent from Brantley's "ageist remarks.†We consider discriminatory
remarks "in conjunction with the entire record.†Ross, 146 F.3d at
1291–92. It was undisputed that, in context, Brantley was referring
to "less experienced†attorneys, not younger attorneys, when she
made the "baby lawyer†remarks. Brantley wanted to shift the law
department into a team model where less experienced lawyers
were supervised by more experienced attorneys. Because the existing lawyers had all practiced law for over ten to fifteen years,
Brantley was "generally . . . hiring for entry level†positions. See,
e.g., Pirone v. Home Ins. Co., 559 F. Supp. 306, 312 (S.D.N.Y.)
("The fact that entry level employees are uniformly younger than
persons terminated clearly has no significance. Logic would seem
to suggest that this would be the natural order of things.â€), aff'd,
742 F.2d 1430 (2d Cir. 1983) (unpublished). Indeed, Thompson admitted that Brantley used "baby lawyers†to refer only to inexperienced attorneys: "The people that she was hiring and that she was
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 24 of 37
19-11260 Opinion of the Court 25
describing as baby lawyers were basically lawyersthat were . . . just
out of law school†or "out for a couple of years.â€
As one former supervising attorney explained, "baby lawyers†just meant "lawyers that had . . . less experience.†Brantley
made the remarks, the former supervising attorney said, "in keeping with her general philosophy about . . . lawyers working on
teams and so forth . . . she would use it sometimes to talk about
having a . . . more experienced lawyer and a less experienced lawyer working on a case.†That's how three other lawyers understood the phrase, too: "I always thought of it as a term of endearment for people who didn't have . . . a lot of legal experienceâ€; "I
did not understand that to be [Brantley's] mindset, that she was
specifically targeting young lawyers. . . . She would refer to
the . . . newly-hired lawyers[] as 'baby lawyers'â€; "[T]he way I interpret it . . . is experience to me. You could be a younger attorney
and have a lot of experience in a certain area, or you can be an older
attorney and not have a lot of experience in a certain area. So I
didn't necessarily equate it to age but more so . . . people gaining
experience . . . .†See Moss v. BMC Software, Inc., 610 F.3d 917,
929 (5th Cir. 2010) (finding that the employer's comment that she
was "hiring someone at a 'more junior level' referenced the need
to hire an attorney at a lower level in the organization, as opposed
to the age of the desired candidateâ€; that, "in this context[,] 'more
junior level' could very well refer to an older individual who went
to law school later in life or otherwise had less experienceâ€; and
that the employer's comment was not "even age-related, and
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 25 of 37
26 Opinion of the Court 19-11260
therefore not 'probative of [the employer's] discriminatory intent'â€
(citation omitted)). In context, Brantley's remarks referred to experience—not age—and they would not allow a reasonable jury to
infer that the county discriminated against Thompson because of
his age.
The dissenting opinion argues that others in the county attorney's office understood Brantley's "baby lawyer†remarks to express a preference for younger lawyers. But our inquiry "centers
on the employer's beliefs, not the employee's beliefs[,] and . . . not
on reality as it exists outside the decision maker's head.†Alvarez,
610 F.3d at 1266. And the summary judgment evidence was undisputed about what was in Brantley's head when she made the "baby
lawyer†remarks. Brantley testified that when she was referring to
hiring young or "baby†lawyers, she "very much wanted to have
an organizational chart where there were less experienced lawyers
who could do . . . 'grunt work'—research, gathering documents,
writing the first draft of motions and briefs—and that the more experienced lawyers would bring them along.†Brantley believed she
was referring to experience, not age.
The dissenting opinion also argues that the county's chief
executive officer's comments about wanting a younger workforce
was evidence of the county's discrimination against older workers.
But the chief executive was not involved in firing Thompson, and
"statements by nondecisionmakers . . . will not satisfy the employee's burden†in a circumstantial evidence case. See Steger v.
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 26 of 37
19-11260 Opinion of the Court 27
Gen. Elec. Co., 318 F.3d 1066, 1079 (11th Cir. 2003) (internal quotation marks and citation omitted).
Hiring Pattern
Thompson and the dissenting opinion contend that a jury
could infer discriminatory intent from the county's "hiring practices.†While twelve of the thirteen lawyers hired by the county
after Thompson's termination were in their thirties, the county
provided an age-neutral explanation for its hiring: Brantley was
hiring for "entry level†positions because she wanted "less experienced lawyers†to do "grunt work†under the supervision of the
experienced attorneys already in the office, causing a natural trend
in age. See Watkins v. Sverdrup Tech., Inc., 153 F.3d 1308, 1315–
16 (11th Cir. 1998) (concluding that, even though plaintiffs showed
that the employer terminated eight engineers all over forty-yearsold and in the same month hired ten new engineers with just one
over forty-years-old, "this superficial presentation . . . failed to support any inference of intentional age discrimination after [the company] explained the data in a plausible, age-neutral fashionâ€).
Thompson did not offer evidence about the law department's vacancies, job descriptions, applicant pools, or selection
processes that provided context to the county's new hires. With
no information about the other candidates' ages and qualifications,
for example, a reasonable jury would have no basis to draw inferences of discriminatory intent from the county's hiring pattern.
See Zaben, 129 F.3d at 1458 (rejecting argument about ageist hiring
pattern because there was no evidence "about the demographics of
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 27 of 37
28 Opinion of the Court 19-11260
job applicantsâ€); Brown v. Am. Honda Motor Co., 939 F.2d 946,
952 (11th Cir. 1991) ("Statistics . . . without an analytic foundation[]
are virtually meaningless. To say that very few black[ applicants]
have been selected by Honda does not say a great deal about
Honda's practices unless we know how many black[ applicants]
have applied and failed and compare that to the success rate of
equally qualified white applicants.â€).4
Pretext
As we explained previously, the county's legitimate, nondiscriminatory reasons for firing Thompson were not pretexts.
Thompson argues that the county's reasons were pretexts because
the county provided "shifting†justifications for his termination and
because his coworkers "disagreed†with Brantley's beliefs about
Thompson's behavior and performance. The evidence did not
show "shifting†reasons, but rather that the county's reasons
"all . . . stemmed from the Champion matter.†And Thompson
presented no evidence that rebutted Brantley's subjective beliefs
that prompted his termination. Because the circumstantial evidence offered by Thompson did not establish pretext, this evidence
4 We need to clarify one point about the county's hiring pattern. The dissenting opinion suggests that the county replaced thirteen lawyers over the age of
forty with thirteen entry level attorneys mostly under the age of forty. That
is not supported by the record. The evidence shows that, during Brantley's
tenure as county attorney, nine lawyers left the office. Seven were over forty
and two were under forty. When Brantley retired in 2017, nine lawyers over
the age of forty were still working in the office. Two of them were older than
Thompson, including one attorney who was seventy-four.
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 28 of 37
19-11260 Opinion of the Court 29
did not contribute to a "convincing mosaic†that would allow a jury
to infer intentional discrimination.
Atlanta, GA- Discrimination lawyer represented defendant with claiming that he was fired because of his age.
Thompson was a senior assistant county attorney for the
DeKalb County law department. He was the lead (and effectively
sole) attorney representing the county in Champion v. DeKalb
County, a breach of contract case initiated by county contractor
Paul Champion in 2010. While investigating the case, Thompson
discovered that Champion had fraudulently overbilled the county
with the assistance of a county employee. Thompson testified
about the fraud before a grand jury in February 2012.
1 Because Thompson—the non-moving party—appeals the district court's
summary judgment for the county, we discuss the facts in the light most favorable to him. See Cowen v. Ga. Sec'y of State, 960 F.3d 1339, 1342 (11th
Cir. 2020) ("In reviewing the propriety of summary judgment, 'we view the
evidence in the light most favorable to the non-moving party.'†(citation omitted)).
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 2 of 37
19-11260 Opinion of the Court 3
In March 2013, Overtis Brantley became the new county attorney. Upon assuming her role, Brantley held a meeting with the
entire law department. At the meeting, Brantley mentioned that
she had spoken with the county's chief executive officer, who said
that he was "tired of looking at all these older people†and "wanted
the [c]ounty workforce to look younger.†She said that the chief
executive asked her, "Why can't we have younger people?†Brantley brought up the chief executive's comments "in the context of
the fact that she . . . wanted to hire baby lawyers in the law department.†She said that it was her "goal to hire baby lawyers†and that
she was "filling the nursery with baby lawyers.†Brantley later used
the phrase "baby lawyers†at "almost every meeting.†Whenever
Brantley was hiring a new person to the law department, she
would say: "I've got another baby lawyer. I'm filling the nursery.â€
Brantley also met with Thompson "one on one†to discuss
his workload. Thompson indicated that he felt overworked and
needed assistance with Champion. The meeting became "very
weird†because Brantley "mocked†Thompson and "ma[de] crazylooking faces†at him. She belittled him by insinuating that he was
"naïve†and "taking it too seriously . . . that [he] had caught people
stealing in the [c]ounty.â€
The county hired outside counsel to help Thompson with
Champion about a year after his request. The county's outside
counsel moved for summary judgment based on sovereign immunity, and after the state trial court denied the motion, the
county began preparing an interlocutory appeal.
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 3 of 37
4 Opinion of the Court 19-11260
Thompson's immediate supervisor, Laura Johnson, directed
Thompson to make sure that the county's appeal had a "clean record†with no extraneous facts regarding the fraud. On November
13, 2014, Thompson told Johnson that she was making a "mistake
of enormous consequence†by excluding the fraud-related facts
from the appellate record. Johnson acknowledged that she and
Thompson had "very different opinions†but concluded that it was
"in the [c]ounty's best interest . . . to simplify†and exclude the
fraud-related facts. After Johnson instructed outside counsel to file
the notice of appeal without the fraud-related facts, Thompson informed Johnson that he wished to "withdraw from the case†and
did not "want [his] name on the notice of appeal†because Johnson's position was "totally contrary to [his].â€
On December 3, 2014, Thompson requested Johnson's signature on his notice of substitution of counsel. Johnson explained
that she did not need to sign the notice because no one was being
substituted; it was just a withdrawal. But Thompson "insist[ed]â€
that either Johnson or Brantley sign the notice. He claimed that
the applicable rule was "plain and straightforward†and that "[t]he
[c]ounty should follow the law.â€
Brantley and Johnson met with Thompson to discuss his
withdrawal from the case. During the meeting, Brantley
"mock[ed]†and "berat[ed]†Thompson, repeatedly telling him that
he "didn't work well with others,†"always thought that [he] was
the smartest person in the room,†"was not a team player,†and
"acted like a child†who would "pick up [his] toys and leave†when
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 4 of 37
19-11260 Opinion of the Court 5
he couldn't get his way. Brantley said she was "upset†about
Thompson's withdrawal from Champion, but "her reasoning
seemed artificial†to Thompson. "The only thing that seemed to
be real [to Thompson] was [that] [Brantley] was intent on berating
[him].†He tried explaining to Brantley and Johnson that he had an
"ethical problem†with Johnson's handling of the appeal, but Brantley "guffawed and just laughed at that[,] as if [it] was just nonsense.â€
Johnson took notes about the meeting. According to Johnson's notes, Brantley told Thompson that "she considered his demand to withdraw a 'temper tantrum'†and that he offended her
by saying "he did not want to be 'associated with' the kinds of decisions being made in the case.†Johnson told Thompson that he
offended Johnson, too, by calling her "dumb†earlier in the meeting. Johnson later testified that Thompson was "really being quite
hostile†throughout the meeting, and while he wasn't yelling or
pounding his fists, Thompson did "raise[] his voice.â€
Brantley eventually signed Thompson's notice of substitution, which was filed on December 5, 2014. That same month,
Brantley informed Thompson that she considered his withdrawal
to be a fireable offense.
On May 6, 2015, Johnson visited Thompson's office to inform him that Champion had filed a motion involving Thompson.
Thompson asked Johnson for more details about the motion, but
Johnson refused to give him additional information. After Thompson read the motion and realized that Champion was seeking to
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 5 of 37
6 Opinion of the Court 19-11260
hold Thompson personally liable for Champion's attorney's fees,
Thompson went to Johnson's office to ask her what had happened
in the case. Johnson said she didn't know. Thompson responded
that it was unacceptable for her to refuse to answer his questions,
and Johnson replied, "You're interrogating me,†and asked him to
leave. After Johnson asked him to leave a second time, Thompson
left and sent an email to Brantley requesting that Brantley "schedule a meeting ASAP†because Johnson was "refusing to answer [his]
questions about the case†and "withholding information.†During
his meetings with Johnson that day, Thompson was "upset†and
"firm with her,†but he wasn't "angry.â€
Johnson took notes about the May 6 meetings with Thompson. According to Johnson's notes, Thompson discussed Champion's motion "in a hostile way,†accused Johnson of lying, and
called outside counsel incompetent. Johnson relayed these observations to Brantley. According to Thompson, he did not accuse
Johnson of lying, and he did not remember calling outside counsel
incompetent.
Brantley and Johnson met with Thompson again, this time
to discuss his May 6 meetings with Johnson. Brantley "just went
off on†Thompson about him "acting like [he's] the smartest person
in the room†and behaving "like a child†who "can't get along with
others.†Brantley repeatedly said that Thompson was "looking really ugly again†because of the way he was acting. Thompson explained that he didn't trust outside counsel and that he wasn't confident outside counsel would adequately defend him against
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 6 of 37
19-11260 Opinion of the Court 7
Champion's motion. Thompson was "upset†during the meeting,
but he wasn't "in any bad way†and he was "certainly coherent.â€
Thompson later met with Johnson to discuss an affidavit for
the response to Champion's motion. Champion's motion claimed
that Thompson had "fabricated . . . allegations and knowingly
signed and filed a false pleading.†But, according to Thompson, he
had made allegations that he believed to be true based on information that he had received from a county employee, and he later
withdrew those allegations after discovering they were false.
Thompson told Johnson, "We need to say that the [county employee] lied to me.†But Johnson responded that they couldn't
"throw [the county employee] under the bus.â€
On May 29, 2015, Thompson met with Brantley, Johnson,
and outside counsel to discuss Champion's motion for attorney's
fees. Brantley was "riding†Thompson from the beginning of the
meeting, telling him that he wasn't a "team player†and that he always acted "like he's the smartest guy in the room.†Thompson
responded that he was a team player but that "almost everybody
was lying to [him].†Thompson explained that he didn't want to
"fall on [his] sword†to protect the county employee who had given
him false information, and he claimed that Johnson had "set
[Thompson] up†by forcing him to rely on that county employee.
Brantley reacted as though Thompson was "losing [his]
headâ€â€”as if Thompson's words were "terrible.†She continued
"berating†him, and at the end of the meeting, Brantley told
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 7 of 37
8 Opinion of the Court 19-11260
Thompson, "I've had it with you. You need to start looking for
another job.â€
On June 19, 2015, Brantley and Johnson met with Thompson for a final time. Brantley asked Thompson whether he had
"found another job.†Thompson said that he hadn't, and Brantley
responded, "Well, you've had a couple of weeks to find another
job.†She continued, "I am terminating you, and the reason
is . . . because you withdrew from the Champion case. And you can
either resign in lieu of termination, or I will terminate you next
Friday.†Brantley "explicitly told [Thompson] she was terminating
[him] because [he] withdr[e]w from the Champion case.†She also
said she might be willing to give Thompson severance if he resigned.
Thompson later emailed Brantley telling her what he would
accept as severance. On June 25, 2015, Brantley rejected Thompson's severance request and informed him that his termination
would be effective as of 5:00 p.m. the following day. Brantley then
wrote Thompson a letter elaborating on the reasons for his termination. The letter stated:
I have long been concerned by your lack of demonstrated ability to discuss legal issues in a clear and concise way. You have also responded to stressful litigation situations in a hostile and arrogant manner when
interacting with me and others within this office during recent months. This type of behavior is not consistent with the team environment I have been working to build in the Law Department. I hope and
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 8 of 37
19-11260 Opinion of the Court 9
believe that you will be able to find a work situation
that will be a better match for your skills and temperament.
Thompson was fifty-four years old when he was fired.
Twelve of the thirteen lawyers hired by the county after Thompson's termination were in their thirties.
PROCEDURAL HISTORY
On May 10, 2016, Thompson sued DeKalb County in Georgia state court, but the county removed the case to the Northern
District of Georgia. Thompson claimed that the county discriminated against him because of his age, in violation of the Age Discrimination in Employment Act.
2
He alleged that "[he] was over
the age of forty at his terminationâ€; that the county "sought to replace older lawyers with younger lawyersâ€; and that "[he] was replaced by a younger attorney under the age of forty.â€
The county moved for summary judgment. It argued that
Thompson couldn't establish a prima facie case of age discrimination under McDonnell Douglas Corp. v. Green, 411 U.S. 792
2 Thompson also raised federal race discrimination claims against the county
and Brantley in her individual capacity and a state retaliation claim against the
county. The district court granted summary judgment for the county and
Brantley on the federal claims and remanded the state claim to state court.
Thompson does not appeal the district court's summary judgment for the
county and Brantley on his federal race discrimination claims and he does not
challenge the district court's remand of his state retaliation claim.
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 9 of 37
10 Opinion of the Court 19-11260
(1973), because Thompson did not establish "that he was replaced
by or lost his position to [a] younger individual.†The county also
argued that Thompson failed to show that its legitimate, non-discriminatory reasons for Thompson's termination were pretexts for
age discrimination.
Thompson opposed the county's motion, arguing that he
satisfied the McDonnell Douglas test and, alternatively, presented
"a convincing mosaic of circumstantial evidence.†Thompson argued that "every person hired after [him] was in his or her thirties,â€
which "unquestionably satisfied [his] prima facie case of age discrimination.†He argued that the county's "shift in justificationâ€
for his termination "alone†was evidence of pretext, and that the
county's hiring pattern, Brantley's ageist "baby lawyer†remarks,
and evidence that Thompson's coworkers thought he was a good
and well-liked lawyer in the office showed that the county's legitimate, non-discriminatory reasons for his termination were "not
worthy of credence.†Thompson also argued that, in the alternative, he established a genuine issue of fact by presenting "'a convincing mosaic of circumstantial evidence' that raise[d] a reasonable inference that the [county] discriminated†against him.
The magistrate judge recommended that the district court
grant the county's motion. The magistrate judge explained that,
under the McDonnell Douglas test, Thompson had to show "either
[] that [he] was replaced by a person outside of his protected class[,]
or [] that he was treated less favorably than a similarly-situated individual outside of his protected class.†The magistrate judge
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 10 of 37
19-11260 Opinion of the Court 11
concluded that Thompson "failed to show a dispute of material fact
on either of these points.†Because Thompson "failed to meet his
burden of coming forward with competent replacement []or comparator evidence,†the magistrate judge recommended that the district court grant summary judgment for the county.
Thompson objected to the magistrate judge's report, arguing that he established a prima facie case of age discrimination and
presented sufficient evidence of pretext under McDonnell Douglas.
Thompson also argued that he presented a "convincing mosaic of
circumstantial evidence that raise[d] a reasonable inference that the
[county] discriminated . . . against [him],†making "summary judgment . . . [in]appropriate.†He argued that the magistrate judge
didn't address Brantley's "ageist†remarks and the county's hiring
pattern from which "a jury could infer discrimination even without
a comparator or replacement.â€
The district court overruled Thompson's objections and
adopted the magistrate judge's report. The district court agreed
with the magistrate judge that Thompson failed to establish a
prima facie case under the McDonnell Douglas test because
Thompson "presented no evidence that he was replaced by someone outside of his protected class†and "identified no comparator
outside his protected class who was treated more favorably.†The
district court found that the "ageist†remarks were not directed at
Thompson, and that Thompson's age discrimination claim was
"half-hearted at best.†Because Thompson provided "no evidence
that would create a disputed issue of material fact as to being
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 11 of 37
12 Opinion of the Court 19-11260
replaced by someone outside the protected class or treated less favorably than similarly situated individuals outside the protected
class,†the district court concluded that Thompson failed to establish a prima facie case of age discrimination and granted summary
judgment for the county.
STANDARD OF REVIEW
We review de novo the district court's grant of summary
judgment. Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir.
2000). Summary judgment is appropriate when the evidence,
viewed in favor of the non-moving party, id., "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).
DISCUSSION
Thompson argues that the district court erred in granting
summary judgment for the county on his age discrimination claim.
The Age Discrimination in Employment Act provides that "[i]t
shall be unlawful for an employer . . . to discharge any individual
or otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual's age†if that individual is at least forty
years old. 29 U.S.C. §§ 623(a)(1), 631(a).
We apply the McDonnell Douglas burden-shifting framework to age discrimination claims that rely on circumstantial
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 12 of 37
19-11260 Opinion of the Court 13
evidence.3 Sims v. MVM, Inc., 704 F.3d 1327, 1332–34 (11th Cir.
2013). "Under this framework, a plaintiff must first establish a
prima facie case of discrimination.†Id. at 1332. "Next, the defendant must articulate a legitimate, non-discriminatory reason for the
challenged employment action.†Id. "If the defendant articulates
one or more such reasons, the plaintiff is afforded an opportunity
to show that the employer's stated reason is a pretext for discrimination.†Id. "The burden of persuasion always remains on the
plaintiff in an [Age Discrimination in Employment Act] case to
proffer evidence sufficient to permit a reasonable fact finder to conclude that the discriminatory animus was the 'but[]for' cause of the
adverse employment action.†Id. (citation omitted).
Thompson contends that the district court erred in granting
summary judgment on his age discrimination claim for three reasons. First, he argues that he presented a prima facie case of age
discrimination under the McDonnell Douglas test because he was
replaced by a younger lawyer. Second, Thompson argues that the
county's legitimate, non-discriminatory reasons for his termination
3 Thompson argues that Brantley's "ageist†remarks "could very easily constitute direct evidence of an age animus.†But direct evidence, "if believed,
proves the existence of a fact in issue without inference or presumption.†Rojas v. Florida, 285 F.3d 1339, 1342 n.2 (11th Cir. 2002) (citation omitted). Brantley's remarks are not inference-free. See id. (noting that "only the most blatant
remarks, whose intent could be nothing other than to discriminate on the basis
of some impermissible factor†are direct evidence of unlawful discrimination);
see, e.g., Carter v. City of Miami, 870 F.2d 578, 582 & n.10 (11th Cir. 1989)
(collecting cases).
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 13 of 37
14 Opinion of the Court 19-11260
were pretexts because the county shifted its reasons for firing him
and he provided evidence from coworkers that he was "polite,
thoughtful, and helpful.†Third, Thompson argues that, even if he
failed to present a prima facie case of age discrimination, he showed
a convincing mosaic of age discrimination. Thompson contends
that Brantley's "ageist remarks,†the county's hiring pattern, and
the county's "pretextual justification†for his termination together
raised a reasonable inference of the county's discriminatory intent.
We agree with Thompson that he created a genuine dispute
that he was replaced by a younger lawyer. But we affirm summary
judgment for the county because Thompson failed to show that
the county's legitimate, non-discriminatory reasons for his termination were pretexts and because he failed to present a convincing
mosaic of circumstantial evidence that would allow a jury to infer
the county's discriminatory intent.
Prima Facie Case
To establish a prima facie case that an employee was terminated in violation of the Act, the plaintiff must show that: (1) he
was at least forty years of age at the time of his termination; (2) he
was qualified for the position he held; (3) he was terminated; and
(4) he was replaced by someone "substantially younger†than him.
See Kragor v. Takeda Pharms. Am., Inc., 702 F.3d 1304, 1308 (11th
Cir. 2012).
The district court and the parties assumed that Thompson
satisfied the first three parts, and we do, too. But the district court
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 14 of 37
19-11260 Opinion of the Court 15
erred in concluding that Thompson failed to prove the fourth part
of the McDonnell Douglas test.
Thompson satisfied the fourth part by showing that he was
replaced by an attorney substantially younger than him. When
asked whether Thompson was replaced by William Scott—a lawyer twenty-four years younger than Thompson—Brantley answered: "I think that's correct.†Indeed, Scott was the first person
hired after Thompson's termination, only three months after
Thompson's departure. And Scott was certainly "substantially
younger†than Thompson. See, e.g., Carter v. DecisionOne Corp.,
122 F.3d 997, 1003 (11th Cir. 1997) (observing that as little as a
three-year age difference is "legally significant for [Age Discrimination in Employment Act] purposesâ€). This was enough summary
judgment evidence to show a genuine dispute about the fourth part
of the McDonnell Douglas test.
Pretext
Under the McDonnell Douglas test, after a plaintiff establishes a prima facie case of age discrimination, the defendant "must
articulate a legitimate, non-discriminatory reason for the challenged employment action.†Sims, 704 F.3d at 1332. The county
explained that it fired Thompson because: (1) he "withdrew from
the Champion caseâ€; (2) he lacked "demonstrated ability to discuss
legal issues in a clear and concise wayâ€; (3) he "responded to stressful litigation situations in a hostile and arrogant manner when interacting with [Brantley] and others within th[e] office during
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 15 of 37
16 Opinion of the Court 19-11260
recent monthsâ€; and (4) his "behavior [was] not consistent with the
team environment [Brantley] [was] working to build in the Law
Department.†These were legitimate, non-discriminatory reasons
for Thompson's termination, and Thompson doesn't argue otherwise. See Chapman, 229 F.3d at 1034 ("A subjective reason is a
legally sufficient, legitimate, non[-]discriminatory reason if the defendant articulates a clear and reasonably specific factual basis upon
which it based its subjective opinion.â€).
The final step under the McDonnell Douglas test is for the
plaintiff "to show that the employer's stated reason is a pretext for
discrimination.†Sims, 704 F.3d at 1332. Although the district court
did not address pretext, "[w]e may affirm a grant of summary judgment on any ground supported by the record.†Hallums v. Infinity
Ins. Co., 945 F.3d 1144, 1148 (11th Cir. 2019). Because the issue of
pretext was fully briefed and raised at oral argument, we exercise
our discretion to consider it on appeal. See Cuddeback v. Fla. Bd.
of Educ., 381 F.3d 1230, 1236 n.5 (11th Cir. 2004) ("If we were so
inclined, we could remand the pretext issue to the district court to
consider in the first instance. However, where the record is so clear
as to the final outcome of the case and is sufficiently developed for
us to decide the issue, we conclude that a remand here would be a
waste of time and judicial resources.â€).
To show a genuine dispute that the county's "legitimate,
non-discriminatory reason[s]†for firing Thompson were "pretext[s],†Thompson needed to demonstrate that "but[]for†his age,
the county would not have fired him. See Sims, 704 F.3d at 1332.
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 16 of 37
19-11260 Opinion of the Court 17
Because the county's legitimate, non-discriminatory reasons were
"one[s] that might motivate a reasonable employer,†Thompson
needed to address the county's reasons "head on and rebut [them]â€
to survive summary judgment. See Chapman, 229 F.3d at 1030
("[T]he employee cannot succeed by simply quarreling with the
wisdom of [a] reason [that might motivate a reasonable employer].â€).
"[A] reason is not pretext for discrimination 'unless it is
shown both that the reason was false, and that discrimination was
the real reason.'†Springer v. Convergys Customer Mgmt. Grp.
Inc., 509 F.3d 1344, 1349 (11th Cir. 2007) (citation omitted). A
plaintiff must demonstrate "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's
proffered legitimate reasons for its action that a reasonable
fact[]finder could find them unworthy of credence.†Jackson v. Ala.
State Tenure Comm'n, 405 F.3d 1276, 1289 (11th Cir. 2005) (citation omitted). The plaintiff carries the burden to provide evidence
from which "a reasonable fact finder†could conclude that but for
the plaintiff's age, the employer would not have fired him. Sims,
704 F.3d at 1332.
Thompson argues that two key facts demonstrated that the
county's legitimate, non-discriminatory reasons for his termination
were pretexts for age discrimination: (1) the county's "shiftingâ€
justifications for Thompson's termination; and (2) Thompson's
coworkers' "disagree[ment]†with Brantley's beliefs about Thompson's behavior and work performance. But this evidence failed to
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 17 of 37
18 Opinion of the Court 19-11260
show that the county's reasons were false and that discrimination
was the real reason for firing him.
"Shifting†Reasons
Thompson and the dissenting opinion argue that the
county'slegitimate, non-discriminatory reasons for his termination
were pretexts because the reasons were "shifting.†See Cleveland
v. Home Shopping Network, Inc., 369 F.3d 1189, 1194 (11th Cir.
2004) (concluding that the decision maker's "shifting reasonsâ€
could allow a fact finder to question the decision maker's credibility
and infer that adverse employment action occurred for reasons
other than those stated). They rely on his termination letter, noting that the letter "include[d] more reasons than were actually told
to [him] in his termination meeting.†While Brantley "explicitly
told†Thompson on June 19 that "she was terminating [him] because [he] withdr[e]w from the Champion case,†the termination
letter said that Thompson's "lack of demonstrated ability to discuss
legal issues in a clear and concise way,†his "respon[se] to stressful
litigation situations in a hostile and arrogant manner when interacting with [Brantley] and others,†and his failure to behave "consistent[ly] with the team environment†were the bases for his termination.
This evidence did not show "shifting†reasons. Before signing Thompson's notice of substitution in early December 2014,
Brantley told Thompson that she considered his withdrawal from
Champion to be a "temper tantrumâ€; that his withdrawal "upset
herâ€; that he "didn't work well with othersâ€; that he "always
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 18 of 37
19-11260 Opinion of the Court 19
thought that [he] was the smartest person in the roomâ€; that he
"was not a team playerâ€; and that he "acted like a child†who would
"pick up [his] toys and leave†when he couldn't get his way. That
same month, Brantley informed Thompson that she considered his
withdrawal from Champion to be a fireable offense, and she continued to confront Thompson about his unprofessional behavior
until his termination in June 2015. Thompson conceded that the
county's reasons in his termination letter "all . . . stemmed from
the Champion matter.â€
Indeed, all of the county's reasons for firing Thompson—his
withdrawal from Champion, his inability to work with others and
discuss legal issues in a clear and concise manner, and his hostile
reactions to stressful litigation situations—were interrelated, and
Brantley consistently confronted Thompson with concerns about
his behavior from December 2014 through June 2015, when he was
fired. See Zaben v. Air Prods. & Chems., Inc., 129 F.3d 1453, 1458
(11th Cir. 1997) ("Although the company gave differing explanations for the selection of employees to be discharged, saying on the
one hand that seniority played no role in the process and that only
an employee's performance was considered while, on the other
hand, asserting that Lewis was discharged because he had the least
seniority, its reasons are not, as the district court observed, necessarily inconsistent.â€); see also Tidwell v. Carter Prods., 135 F.3d
1422, 1428 (11th Cir. 1998) ("At most, the jury could find that performance was an additional, but undisclosed, reason for the decision; the existence of a possible additional non-discriminatory basis
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 19 of 37
20 Opinion of the Court 19-11260
for Tidwell's termination does not, however, prove pretext.â€);
Schuster v. Lucent Techs., Inc., 327 F.3d 569, 577 (7th Cir. 2003)
("Shifting and inconsistent explanations can provide a basis for a
finding of pretext. But the explanations must actually be shifting
and inconsistent to permit an inference of mendacity.†(internal citation omitted)). The summary judgment evidence showed that
the county's reasons for terminating Thompson did not shift, but
were part of a consistent problem with Thompson withdrawing
from the Champion case.
The dissenting opinion also asserts that a reasonable jury
could find it "odd†that Brantley waited seven months after
Thompson withdrew from Champion to fire him and could "draw
the reasonable inference that Thompson's withdrawal from Champion was not the real reason for his termination.†But Thompson
never argued to the district court or to us that the county's reasons
were pretexts because of the seven months between his withdrawal and termination. Even if Thomson made this pretext argument, the summary judgment evidence was undisputed that Brantley told Thompson as early as December 2014 that withdrawing
from Champion was a "terminable offense.†Brantley didn't fire
him then because Johnson "discouraged†her from doing it. There
was no oddity for the jury to infer.
The dissenting opinion suggests that nothing happened to
Thompson in the seven months between his withdrawal from
Champion and his termination. But this is not supported by the
record. Thompson testified that Brantley repeatedly admonished
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 20 of 37
19-11260 Opinion of the Court 21
him in the months before his termination. For example, at one
meeting after Thompson withdrew from Champion, Brantley "berat[ed]†him because he "was not a team player†and he "didn't
work well with others.†At another meeting, Brantley told Thompson that she was still "upset†that he had withdrawn from Champion and that he couldn't "get along with others.†And at a third
meeting, Brantley was "riding†Thompson again for not being a
"team player.â€
Coworkers' Observations
Thompson also argues that the county's reasons were pretexts because Brantley's description of his behavior conflicted with
coworkers' observations "that he communicated in a coherent
manner†and that he was "polite, thoughtful, and helpful.†And the
dissenting opinion contends that the county's legitimate, non-discriminatory reasons for firing Thompson were "belied . . . by his
co-workers' opinions of him.†But the "inquiry into pretextâ€
doesn't "center[] on†Thompson's coworkers' perspectives or "reality as it exists outside of the decision maker's headâ€; rather, it
turns on the decision maker's "beliefs.†See Alvarez v. Royal Atl.
Devs., Inc., 610 F.3d 1253, 1266 (11th Cir. 2010). An employer
"may fire an employee for a good reason, a bad reason, a reason
based on erroneous facts, or for no reason at all, as long as its action
is not for an unlawful reason.†Jefferson v. Sewon Am., Inc., 891
F.3d 911, 924 (11th Cir. 2018) (alteration adopted) (citation omitted).
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 21 of 37
22 Opinion of the Court 19-11260
Thompson did not rebut Brantley's subjective beliefs that
prompted his termination. See Chapman, 229 F.3d at 1034 (concluding that subjective beliefs are "legally sufficient, legitimate,
non[-]discriminatory reason[s]†if the decision maker "articulates a
clear and reasonably specific factual basis†for her beliefs). It was
undisputed that in the months before he was fired Brantley admonished Thompson for his behavior: Thompson conceded that Brantley repeatedly told him that he was acting "ugly†and wasn't a
"team playerâ€; Thompson admitted to criticizing Johnson for
"set[ting] [him] upâ€; Thompson didn't deny that Brantley accused
him of acting disrespectfully during the May 29 meeting; and
Thompson didn't dispute that Johnson relayed her concerns to
Brantley regarding Thompson's May 6 conduct. While Thompson
denied accusing Johnson of lying and didn't remember calling outside counsel incompetent, Thompson didn't refute Brantley's subjective belief that Thompson "was making [Johnson] miserable
based on the few things [Johnson] would share with [Brantley]
about [Thompson's] conduct, particularly after the motion for attorney fees came in†on May 6.
* * * *
Considering Thompson's evidence of pretext together, see
Ross v. Rhodes Furniture, Inc., 146 F.3d 1286, 1292 (11th Cir. 1998),
we conclude that Thompson did not establish a genuine dispute
that the county's legitimate, non-discriminatory reasons for firing
Thompson were pretexts for age discrimination.
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 22 of 37
19-11260 Opinion of the Court 23
Convincing Mosaic
Thompson contends that, even if he didn't establish a prima
facie case under McDonnell Douglas, he presented a convincing
mosaic of circumstantial evidence that the county fired him for age
discrimination. He argues that three parts of the record "foreclosed
the granting of summary judgmentâ€: (1) Brantley's "ageist†remarks; (2) the county's "hiring practicesâ€; and (3) the county's "pretextual justification†for his termination.
A "plaintiff will always survive summary judgment if he presents circumstantial evidence that creates a triable issue concerning
the employer's discriminatory intent.†Smith v. Lockheed-Martin
Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). "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 decision[]maker.'†Id. (internal footnote and citation omitted). "A
'convincing mosaic' may be shown by evidence that demonstrates,
among other things, (1) 'suspicious timing, ambiguous statements,
and other bits and pieces from which an inference of discriminatory
intent might be drawn,' (2) systematically better treatment of similarly situated employees, and (3) that the employer's justification
is pretextual.†Lewis v. City of Union City, 934 F.3d 1169, 1185
(11th Cir. 2019) (alteration adopted and citation omitted). A convincing mosaic "may consist only of the plaintiff's prima facie case
and of the evidence rebutting the employer's proffered reasons.â€
Holland v. Gee, 677 F.3d 1047, 1056 n.2 (11th Cir. 2012).
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 23 of 37
24 Opinion of the Court 19-11260
The plaintiff carries the ultimate burden of providing sufficient evidence to "yield[] a reasonable inference of the employer's
discrimination.†Smith, 644 F.3d at 1346 n.86; see Holland, 677
F.3d at 1056. After all, "convincing mosaic†is just a "metaphorâ€
for making a circumstantial case. Ortiz v. Werner Enters., 834 F.3d
760, 764–65 (7th Cir. 2016) (explaining that the "convincing mosaic†is "not a legal test of any kind†but a "metaphorâ€).
"Ageist†Remarks
Thompson argues that a jury could infer discriminatory intent from Brantley's "ageist remarks.†We consider discriminatory
remarks "in conjunction with the entire record.†Ross, 146 F.3d at
1291–92. It was undisputed that, in context, Brantley was referring
to "less experienced†attorneys, not younger attorneys, when she
made the "baby lawyer†remarks. Brantley wanted to shift the law
department into a team model where less experienced lawyers
were supervised by more experienced attorneys. Because the existing lawyers had all practiced law for over ten to fifteen years,
Brantley was "generally . . . hiring for entry level†positions. See,
e.g., Pirone v. Home Ins. Co., 559 F. Supp. 306, 312 (S.D.N.Y.)
("The fact that entry level employees are uniformly younger than
persons terminated clearly has no significance. Logic would seem
to suggest that this would be the natural order of things.â€), aff'd,
742 F.2d 1430 (2d Cir. 1983) (unpublished). Indeed, Thompson admitted that Brantley used "baby lawyers†to refer only to inexperienced attorneys: "The people that she was hiring and that she was
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 24 of 37
19-11260 Opinion of the Court 25
describing as baby lawyers were basically lawyersthat were . . . just
out of law school†or "out for a couple of years.â€
As one former supervising attorney explained, "baby lawyers†just meant "lawyers that had . . . less experience.†Brantley
made the remarks, the former supervising attorney said, "in keeping with her general philosophy about . . . lawyers working on
teams and so forth . . . she would use it sometimes to talk about
having a . . . more experienced lawyer and a less experienced lawyer working on a case.†That's how three other lawyers understood the phrase, too: "I always thought of it as a term of endearment for people who didn't have . . . a lot of legal experienceâ€; "I
did not understand that to be [Brantley's] mindset, that she was
specifically targeting young lawyers. . . . She would refer to
the . . . newly-hired lawyers[] as 'baby lawyers'â€; "[T]he way I interpret it . . . is experience to me. You could be a younger attorney
and have a lot of experience in a certain area, or you can be an older
attorney and not have a lot of experience in a certain area. So I
didn't necessarily equate it to age but more so . . . people gaining
experience . . . .†See Moss v. BMC Software, Inc., 610 F.3d 917,
929 (5th Cir. 2010) (finding that the employer's comment that she
was "hiring someone at a 'more junior level' referenced the need
to hire an attorney at a lower level in the organization, as opposed
to the age of the desired candidateâ€; that, "in this context[,] 'more
junior level' could very well refer to an older individual who went
to law school later in life or otherwise had less experienceâ€; and
that the employer's comment was not "even age-related, and
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 25 of 37
26 Opinion of the Court 19-11260
therefore not 'probative of [the employer's] discriminatory intent'â€
(citation omitted)). In context, Brantley's remarks referred to experience—not age—and they would not allow a reasonable jury to
infer that the county discriminated against Thompson because of
his age.
The dissenting opinion argues that others in the county attorney's office understood Brantley's "baby lawyer†remarks to express a preference for younger lawyers. But our inquiry "centers
on the employer's beliefs, not the employee's beliefs[,] and . . . not
on reality as it exists outside the decision maker's head.†Alvarez,
610 F.3d at 1266. And the summary judgment evidence was undisputed about what was in Brantley's head when she made the "baby
lawyer†remarks. Brantley testified that when she was referring to
hiring young or "baby†lawyers, she "very much wanted to have
an organizational chart where there were less experienced lawyers
who could do . . . 'grunt work'—research, gathering documents,
writing the first draft of motions and briefs—and that the more experienced lawyers would bring them along.†Brantley believed she
was referring to experience, not age.
The dissenting opinion also argues that the county's chief
executive officer's comments about wanting a younger workforce
was evidence of the county's discrimination against older workers.
But the chief executive was not involved in firing Thompson, and
"statements by nondecisionmakers . . . will not satisfy the employee's burden†in a circumstantial evidence case. See Steger v.
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 26 of 37
19-11260 Opinion of the Court 27
Gen. Elec. Co., 318 F.3d 1066, 1079 (11th Cir. 2003) (internal quotation marks and citation omitted).
Hiring Pattern
Thompson and the dissenting opinion contend that a jury
could infer discriminatory intent from the county's "hiring practices.†While twelve of the thirteen lawyers hired by the county
after Thompson's termination were in their thirties, the county
provided an age-neutral explanation for its hiring: Brantley was
hiring for "entry level†positions because she wanted "less experienced lawyers†to do "grunt work†under the supervision of the
experienced attorneys already in the office, causing a natural trend
in age. See Watkins v. Sverdrup Tech., Inc., 153 F.3d 1308, 1315–
16 (11th Cir. 1998) (concluding that, even though plaintiffs showed
that the employer terminated eight engineers all over forty-yearsold and in the same month hired ten new engineers with just one
over forty-years-old, "this superficial presentation . . . failed to support any inference of intentional age discrimination after [the company] explained the data in a plausible, age-neutral fashionâ€).
Thompson did not offer evidence about the law department's vacancies, job descriptions, applicant pools, or selection
processes that provided context to the county's new hires. With
no information about the other candidates' ages and qualifications,
for example, a reasonable jury would have no basis to draw inferences of discriminatory intent from the county's hiring pattern.
See Zaben, 129 F.3d at 1458 (rejecting argument about ageist hiring
pattern because there was no evidence "about the demographics of
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 27 of 37
28 Opinion of the Court 19-11260
job applicantsâ€); Brown v. Am. Honda Motor Co., 939 F.2d 946,
952 (11th Cir. 1991) ("Statistics . . . without an analytic foundation[]
are virtually meaningless. To say that very few black[ applicants]
have been selected by Honda does not say a great deal about
Honda's practices unless we know how many black[ applicants]
have applied and failed and compare that to the success rate of
equally qualified white applicants.â€).4
Pretext
As we explained previously, the county's legitimate, nondiscriminatory reasons for firing Thompson were not pretexts.
Thompson argues that the county's reasons were pretexts because
the county provided "shifting†justifications for his termination and
because his coworkers "disagreed†with Brantley's beliefs about
Thompson's behavior and performance. The evidence did not
show "shifting†reasons, but rather that the county's reasons
"all . . . stemmed from the Champion matter.†And Thompson
presented no evidence that rebutted Brantley's subjective beliefs
that prompted his termination. Because the circumstantial evidence offered by Thompson did not establish pretext, this evidence
4 We need to clarify one point about the county's hiring pattern. The dissenting opinion suggests that the county replaced thirteen lawyers over the age of
forty with thirteen entry level attorneys mostly under the age of forty. That
is not supported by the record. The evidence shows that, during Brantley's
tenure as county attorney, nine lawyers left the office. Seven were over forty
and two were under forty. When Brantley retired in 2017, nine lawyers over
the age of forty were still working in the office. Two of them were older than
Thompson, including one attorney who was seventy-four.
USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 28 of 37
19-11260 Opinion of the Court 29
did not contribute to a "convincing mosaic†that would allow a jury
to infer intentional discrimination.
Outcome:
The district court erred in concluding that Thompson failed
to establish the fourth part of his prima facie burden under McDonnell Douglas. But we still affirm because Thompson failed to establish a genuine issue of material fact as to whether the county’s
legitimate, non-discriminatory reasons for his termination were
pretexts for age discrimination and because he failed to present a
convincing mosaic of circumstantial evidence that the county fired
him because of his age.
AFFIRMED.
to establish the fourth part of his prima facie burden under McDonnell Douglas. But we still affirm because Thompson failed to establish a genuine issue of material fact as to whether the county’s
legitimate, non-discriminatory reasons for his termination were
pretexts for age discrimination and because he failed to present a
convincing mosaic of circumstantial evidence that the county fired
him because of his age.
AFFIRMED.
Plaintiff's Experts:
Defendant's Experts:
Comments:
About This Case
What was the outcome of Mark A. Thompson v. DeKalb County, GA, et al?
The outcome was: The district court erred in concluding that Thompson failed to establish the fourth part of his prima facie burden under McDonnell Douglas. But we still affirm because Thompson failed to establish a genuine issue of material fact as to whether the county’s legitimate, non-discriminatory reasons for his termination were pretexts for age discrimination and because he failed to present a convincing mosaic of circumstantial evidence that the county fired him because of his age. AFFIRMED.
Which court heard Mark A. Thompson v. DeKalb County, GA, et al?
This case was heard in <center><h4><b>United States Court of Appeals For the Eleventh Circuit </b> <br> <font color="green"><i>On appeal from The United States District Court for the Northern District of Georgia </i></font></center></h4>, GA. The presiding judge was Robert J. Luck.
Who were the attorneys in Mark A. Thompson v. DeKalb County, GA, et al?
Plaintiff's attorney: Atlanta, GA - Best Discrimination Lawyer Directory Tell MoreLaw About Your Litigation Successes and MoreLaw Will Tell the World. Re: MoreLaw National Jury Verdict and Settlement Counselor: MoreLaw collects and publishes civil and criminal litigation information from the state and federal courts nationwide. Publication is free and access to the information is free to the public. MoreLaw will publish litigation reports submitted by you free of charge Info@MoreLaw.com - 855-853-4800. Defendant's attorney: DeKalb County, Georgia, Attorney’s Office.
When was Mark A. Thompson v. DeKalb County, GA, et al decided?
This case was decided on December 25, 2021.