Sometimes a Supreme Court opinion is taken in the wrong direction by lower courts. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) is an example.  In that case, the Supreme Court considered a discrimination case after being dismissed. The dismissal was reversed and Mr. Green was allowed to proceed. However, the language has been, at times, unclear to many courts.

From that case a standard developed called the “convincing mosaic” standard. Under that standard, after the plaintiff shows the statutory elements, the burden shifts to the employer to show some nondiscriminatory reason for the adverse action and then if the employer's reason is adequate, the employee can show that the reason was a pretext.

However, that evolved into a “stand-in for Rule 56 summary judgment”. Dismissal was proper if there was not a prima facie case made which included showing that the employer's allegedly pretextual reason was false and that discrimination was the true reason for the adverse action.

Ismael v. Roundtree, No. 25-10604, (11^th Cir. Dec. 5, 2025) found that to be flawed.  The Court noted that “Appellees …  argue that “the terms pretext, convincing mosaic, and summary judgment are substantively the same thing” and that “the pretext prong . . . is the same as the ordinary summary judgment standard.”

However, the Court disagreed. “Though we recognize that both inquiries [pretext and discrimination] are probative of the same ultimate question, we are persuaded that they are not identical.” The panel explained, “To show pretext, a plaintiff must show “both that the [employer's] reason was false, and that discrimination was the real reason” for the adverse action. Hicks, 509 U.S. at 515, 113 S. Ct. at 2752.”  However, conflating the convincing mosaic with Rule 56 went too far.

The panel noted that while showing the real reason for the adverse action is the same issue as the convincing mosaic standard, it goes too far to require proof of pretext at the summary judgment stage. There are two defects with this. “First, it is not required to succeed at trial. Second, it detracts from the plaintiff's affirmative case that the driving cause was illegal discrimination or retaliation.”

The panel reminded that under Hicks, 509 U.S. at 521, McDonnell Douglas is to be a “procedural device, designed only to establish an order approving production.” So for clarity, two roadmaps were then provided for lower courts:

1.       Plaintiff Demonstrates Prima Facie Case.

If the plaintiff can establish a prima facie case, she is entitled to a rebuttable presumption of illicit intent. This necessarily means that if the defendant fails to proffer evidence of a legitimate reason for the adverse employment action, summary judgment in favor of the plaintiff is appropriate. 

Where, as is more common, the defendant comes forth with evidence and successfully rebuts the presumption, "the McDonnell Douglas framework-with its presumptions and burdens-is no longer relevant." Hicks, 509 U.S. at 510, 113 S. Ct. at 2749. It "simply drops out of the picture." Id. at 511, 113 S. Ct. at 2749.  At this point, the court must proceed to ask whether "the record, viewed in a light most favorable to the plaintiff, presents a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination [or retaliation] by the decisionmaker." Smith, 644 F.3d at 1328. A showing of pretext (or lack thereof) would certainly be relevant. But a plaintiff's inability to disprove the defendant's rationale cannot be the sole grounds for summary judgment. (Underline added.)

The Court continued:

2.       Plaintiff Fails to Demonstrate Prima Facie Case.

If the plaintiff cannot establish a prima facie case, she does not automatically lose on summary judgment. See Smith, 644 F.4th at 1328." . In Tynes, we explained why this is so: 

When the Supreme Court uses the term “prima facie case” in this context, it does so “in a special sense.”  The Court itself has explained that although that phrase may sometimes “describe the plaintiff's burden of producing enough evidence to permit the trier of fact to infer the fact at issue,” within the McDonnell Douglas framework the term "prima facie case” has a different meaning—it marks "the establishment of a legally mandatory, rebuttable presumption.”

88 F.4th at 945 (quoting Burdine, 450 U.S. at 254 n.7, 101 S.Ct. at 1094) (internal citations omitted). Rather than lose by default, the consequence is that the plaintiff must produce enough evidence, on her own and without any helpful evidentiary burdens or presumptions, to demonstrate a material issue of triable fact. A court, therefore, should advance directly to the convincing mosaic inquiry.”

It no longer appears that McDonnell Douglas in this Circuit has the force of Rule 56. It is dead for that misconstrued purpose.