Daphne Berry v. Crestwood Healthcare LP

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit

____________________

No. 22-11129
____________________

DAPHNE BERRY,
Plaintiff-Appellant,
versus
CRESTWOOD HEALTHCARE LP,
CHS PROFESSIONAL SERVICES CORPORATION,

Defendants-Appellees.

____________________

Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 5:19-cv-01407-LCB
____________________
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2 Opinion of the Court 22-11129

Before WILLIAM PRYOR, Chief Judge, ABUDU, Circuit Judge, and
BARBER, * District Judge.
WILLIAM PRYOR:
This appeal requires us to decide whether a former em-
ployee presented substantial evidence of retaliation to survive
summary judgment. Daphne Berry repeatedly complained about
racial discrimination in the months before Crestwood Healthcare
terminated her employment. But, also during that period, Crest-
wood uncovered evidence that Berry engaged in bullying and
other misconduct. After Berry sued Crestwood for retaliating
against her complaints of discrimination, she argued that circum-
stantial evidence created a reasonable inference of retaliation un-
der either the McDonnell Douglas framework or a “convincing mo-
saic” of proof. The district court disagreed and entered summary
judgment in favor of Crestwood. Although an employee may
prove retaliation with whatever circumstantial evidence creates a
reasonable inference of retaliation, Berry’s evidence falls short.
We affirm the summary judgment in favor of Crestwood.
I. BACKGROUND
Daphne Berry, a black female, worked at Crestwood Hos-
pital as an emergency department nurse from 2007 to 2018. She
was hired as a staff nurse and later promoted to full-time charge

* Honorable Thomas P. Barber, United States District Judge for the Middle
District of Florida, sitting by designation.
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22-11129 Opinion of the Court 3

nurse. In that role, Berry supervised weekday-shift employees in
the emergency department.
Berry’s immediate supervisor described Berry as “an excel-
lent nurse with a strong personality.” She reported that Berry
“always held her crew accountable” and led “the strongest and
smoothest crew” in the emergency department. Berry’s perfor-
mance evaluations, including the last one she received from
Crestwood, reveal that she consistently met or exceeded her su-
pervisor’s expectations. But many of Berry’s colleagues disagreed.
Berry clashed with other nurses. For example, in February
2018, Berry had an altercation with Shane Gann. In the presence
of others, Berry told Gann that he “suck[ed] as a nurse,” and Gann
screamed at Berry. Berry received informal counseling about the
incident, and Gann resigned before Crestwood could discipline
him. Also in February 2018, the director of the emergency de-
partment learned that Berry and another nurse, Paul Mizzell, had
“exhibited bullying behavior toward their colleagues.” The direc-
tor stated that Mizzell’s behavior improved over time, but Berry’s
behavior did not.
Also in February 2018, during a shift on which she was the
charge nurse, Berry and her team provided medical care to a
combative psychiatric patient. Video recordings revealed that the
nurses behaved inappropriately. For example, they sang, danced,
and laughed in the patient’s room, and one nurse slapped the pa-
tient’s hand. Shortly after, Crestwood received a complaint about
the incident from someone claiming to be a patient or a patient’s
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4 Opinion of the Court 22-11129

family member. One employee heard that another hospital em-
ployee, Sheila Primeau, had planned to pose as a patient’s family
member and make the complaint. The employee told Berry that
Primeau made the complaint to get the black nurses fired “be-
cause they’re loud.”
Crestwood investigated the nurses’ conduct during the pa-
tient incident. While the investigation was ongoing, Berry made
verbal complaints to her supervisors. She reported that Primeau
made the complaint pretending to be a patient’s family member
because she is racist. Berry also called Crestwood’s corporate-
compliance hotline and made two anonymous complaints about
the handling of the patient incident, racial targeting, and unfair
treatment by management.
Crestwood disciplined the nurses for their conduct during
the incident. All nurses involved, including Berry, received disci-
plinary notices and three days of unpaid suspension. Berry was
also demoted from serving as a charge nurse. When the human
resources director told Berry about the suspension and demotion,
Berry complained again that Primeau had lodged the complaint
out of racial animus. She also complained that her discipline was
racially motivated.
At least one nurse received a reduced suspension after the
initial discipline was issued. During Berry’s suspension, someone
from Crestwood called Berry and asked if she wanted to meet
with the chief nursing officer to discuss the prospect of reducing
her suspension. Berry declined.
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22-11129 Opinion of the Court 5

Berry then filed a grievance alleging that she was treated
unfairly and targeted because of her race. Berry also identified
herself as the person who made the earlier anonymous com-
plaints to the hotline. In the weeks that followed, Berry called the
hotline several more times to complain about racial discrimina-
tion. Her last call occurred on May 11, 2018.
After receiving several complaints and noticing significant
department turnover, Crestwood sent its Regional Human Re-
sources Director, Lisa Friday, to investigate the complaints and
conduct an employee-relations survey. Between May 14 and May
17, Friday interviewed 24 hospital staff members. She asked simi-
lar questions of each interviewee and took detailed notes.
The interviews revealed significant evidence of misconduct
and bullying by Berry. Out of 24 interviewees, 16 raised specific
concerns about Berry. One interviewee reported that “[Berry] is
always in the mix of everything that causes problems” and that
“when [Berry] is around, there is chaos and continual bickering.”
Another reported, “[t]here is much bullying by [Berry],” “[s]he is
mean and doesn’t allow RNs to do their jobs,” and “[she] yells and
screams at [staff] and won’t help them.” Another said that Berry
“is a bully and demeans people.” Another reported that Berry
“degrades most people all day long” and that she is “the ring lead-
er for all the problems.” Another said, “[t]here is much bullying
and intimidation . . . mostly done by [Berry].” That employee ex-
plained that “[m]ost people call [a group including Berry] the
‘Mean Girls’” and that “[t]hey make back-handed threats.” Anoth-
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6 Opinion of the Court 22-11129

er employee reported that “[Berry] screams and fights with peo-
ple . . . and demeans people in the ER.” Another said, “[Berry] is
horribly mean” and “rude” and “is always bullying someone.”
The employee also said that Berry “caused at least 7 employees to
quit.” Another said, “[w]e lose RNs because of [Berry]” and “there
are patient safety issues because of [Berry].” Another reported
that Berry is “abusive” and that “5 or 6 people have already left
because of [Berry].” One employee claimed to have “7 shoe boxes
full of dates, times, and incidents over the last several months that
involve [Berry’s] threatening behavior.” The same employee
claimed that Berry was “very violent” on two occasions. Several
employees suggested that Crestwood “get rid of [Berry].”
During her interview with Friday, Berry complained again
about racial discrimination and unfair treatment. Berry’s supervi-
sor defended Berry and reported that “people are targeting [Ber-
ry].” The supervisor claimed that Friday cut the interview short
when Friday “realized [she] did not have negative words about
[Berry].” One other employee complained about a racist com-
ment made by Primeau. But most interviewees—including the
interviewee who complained about Primeau—had negative feed-
back about Berry in particular.
After the investigation, Friday recommended that Crest-
wood terminate Berry’s employment. She reported that a “com-
mon thread of the interviews was [Berry’s] negativity, bullying,
[and] unprofessional behavior” and that Berry “was the common
denominator of the workplace interpersonal conflicts.” Friday de-
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22-11129 Opinion of the Court 7

termined that removing Berry “would improve morale and re-
duce turnover.” Other hospital administrators agreed with Fri-
day’s recommendation. Berry was terminated on May 18, 2018.
When Berry asked why she was being terminated, the human re-
sources director retorted, “we don’t have to tell you that!”
After Berry sued Crestwood for racial discrimination and
retaliation, 42 U.S.C. §§ 1981, 2000e et seq., and for negligence and
outrage under state law, Crestwood moved for summary judg-
ment. It argued that Berry could not establish a prima face case of
retaliation because she could not establish a causal link between
her protected activity and her termination. And even if she could,
Crestwood argued, Berry offered no evidence that Crestwood’s
legitimate, nondiscriminatory reason for her termination was pre-
textual. Berry responded that she had established a prima facie
case because of the close temporal proximity between her pro-
tected activity and termination. And she argued that Crestwood’s
justification for her termination was pretextual. Berry also argued
that she presented a convincing mosaic of circumstantial evidence
of retaliation.
The district court granted summary judgment in favor of
Crestwood. It assumed without deciding that Berry could estab-
lish a prima facie case of retaliation. But it determined that she
failed to create a genuine issue of pretext. And it ruled that there
was “no convincing mosaic of circumstantial evidence of retalia-
tion.” Berry moved to alter or amend the judgment under Federal
Rule of Civil Procedure 59(e). She argued that an unpublished de-
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8 Opinion of the Court 22-11129

cision of this Court constituted an intervening change in the law
and that the district court made factual and legal errors in its pre-
text analysis. The district court denied the motion.
II. STANDARD OF REVIEW
We review a district court’s decision on summary judg-
ment de novo and draw all reasonable inferences in the nonmov-
ing party’s favor. Sutton v. Wal-Mart Stores E., LP, 64 F.4th 1166,
1168 (11th Cir. 2023).
III. DISCUSSION
We divide our discussion in three parts. First, we explain
why Berry’s claim of retaliation fails under the McDonnell Douglas
framework. Second, we explain that although an employee can
prove retaliation with a convincing mosaic of circumstantial evi-
dence, Berry failed to do so. Third, we explain that Berry failed to
preserve a challenge to the denial of her postjudgment motion
and that, in any event, her challenge fails.
Berry sued Crestwood for retaliation under Title VII and
section 1981. Both statutes require the same proof and analytical
framework. Standard v. A.B.E.L. Servs., 161 F.3d 1318, 1330 (11th
Cir. 1998), abrogated on other grounds by Burlington N. & Santa Fe
Ry. Co. v. White, 548 U.S. 53 (2006). So we analyze the claims to-
gether.
A. Berry’s Claims Fail Under the McDonnell Douglas Framework.
Berry argues that she presented substantial evidence under
the McDonnell Douglas framework, which has three steps. See
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22-11129 Opinion of the Court 9

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 804 (1973).
First, the employee must establish a prima facie case of retaliation
by proving that she engaged in statutorily protected conduct; she
suffered an adverse employment action; and a causal relation ex-
ists between the two events. Tolar v. Bradley Arant Boult Cummings,
LLP, 997 F.3d 1280, 1289 (11th Cir. 2021). If an employee estab-
lishes a prima facie case, the employer may proffer a “legitimate,
nonretaliatory reason” for the adverse action. Id. If the employer
does so, the employee must prove that the employer’s proffered
reason was a pretext for retaliation. Id.
To prove that an employer’s explanation is pretextual, an
employee must cast enough doubt on its veracity that a reasona-
ble factfinder could find it “unworthy of credence.” Gogel v. Kia
Motors Manuf. of Ga., Inc., 967 F.3d 1121, 1136 (11th Cir. 2020) (en
banc) (citation and internal quotation marks omitted). If the em-
ployer’s stated reason is legitimate—in other words, if it might
motivate a reasonable employer to act—then the employee must
address “that reason head on and rebut it.” Patterson v. Ga. Pac.,
LLC, 38 F.4th 1336, 1352 (11th Cir. 2022) (citation and internal
quotation marks omitted). An employee cannot rebut a reason
“by simply quarreling with the wisdom of ” it. Id. (citation and in-
ternal quotation marks omitted). Instead, she must point to
“weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions” in the justification. Id. (citation omitted). To avoid
a summary judgment, an employee must establish a genuine dis-
pute of material fact that the employer’s reason is pretextual.
Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913, 921 (11th Cir.
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10 Opinion of the Court 22-11129

1993).
We assume without deciding that Berry established a prima
facie case of retaliation and consider whether she presented evi-
dence of pretext. Crestwood explained that it terminated Berry
because “a multitude of [employees] reported that [she] was a bul-
ly, unprofessional, intimidating, and threatening.” After inter-
viewing 24 employees, Crestwood proffered that “Friday con-
cluded that removing [Berry] from the work environment would
improve morale and reduce turnover.” This reason might legiti-
mately motivate a reasonable employer to terminate an employ-
ee. See Patterson, 38 F.4th at 1352; see Smith v. Papp Clinic, P.A., 808
F.2d 1449, 1452–53 (11th Cir. 1987). So Berry had to address it
“head on and rebut it.” Patterson, 38 F.4th at 1352 (citation and in-
ternal quotation marks omitted).
Berry contends that our precedents requiring her to “re-
but” the employer’s stated reason contravene the but-for standard
for causation adopted in Bostock v. Clayton County, 140 S. Ct. 1731
(2020). We have explained that to establish pretext, an employee
must prove that the employer’s reason “was false” and that “retal-
iation was the real reason.” Patterson, 38 F.4th at 1352 (citation
and internal quotation marks omitted). Bostock explains that
“events [can] have multiple but-for causes” and an employer
“cannot avoid liability just by citing some other factor that con-
tributed to” its action. 140 S. Ct. at 1739. According to Berry, be-
cause there can be more than one but-for cause, a party should
not be required to rebut an employer’s justification.
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22-11129 Opinion of the Court 11

Our precedents are consistent with Bostock. We have ex-
plained that to prove pretext, an employee must identify “weak-
nesses, implausibilities, inconsistencies, incoherencies, or contra-
dictions” in the employer’s justification. Patterson, 38 F.4th at 1352
(citation omitted). That burden does not require an employee to
establish that an illegal reason was the only reason for the em-
ployer’s action. Instead, it requires the employee to present evi-
dence that casts doubt on the employer’s proffered reason as the
only reason for its action. See Yelling v. St. Vincent’s Health Sys., No.
21-10017, slip. op. at 20 (11th Cir. Oct. 5, 2023) (explaining that
employees alleging multiple but-for causes must “show an unlaw-
ful but-for cause resulted in the alleged wrongful action” and “re-
spond to [the employer’s] legitimate reason with a showing of
pretext”).
Berry failed to create a genuine dispute of material fact re-
garding whether Crestwood’s stated reason for firing her was pre-
textual. The record establishes that most interviewees—16 out of
24—complained about Berry’s behavior. At least nine specifically
said that Berry was a “bully” or “threatening” or “abusive” at
work. One employee described Berry as “very violent” on two
occasions. Berry failed to create a genuine issue as to whether the
reports were false or whether Crestwood sincerely believed that
the reports were true. Nothing in the record suggests that Crest-
wood had any reason to doubt the numerous employees who re-
ported misconduct and bullying. So Berry failed to establish a
genuine issue of pretext.
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12 Opinion of the Court 22-11129

Berry insists that the close temporal proximity between her
complaints and her termination proves pretext. We have ex-
plained that “very close” temporal proximity between a protected
activity and an adverse action can create an inference of causa-
tion. See Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th
Cir. 2007) (citation and internal quotation marks omitted). And
evidence of causation can be used to prove pretext. See Tex. Dep’t
of Cmty. Affs. v. Burdine, 450 U.S. 248, 255 n.10 (1981). But the in-
tervening discovery of employee misconduct can sever the causal
inference created by close temporal proximity. And it did so here.
To be sure, in the months before her termination, Berry
made several complaints about racial discrimination. Her last call
to the hotline was seven days before her termination. She com-
plained again during her in-person meeting with Friday and was
terminated just three days later.
But also before Berry’s termination, Crestwood conducted
an employee-relations survey and uncovered substantial evidence
of misconduct. The interviews revealed that Berry bullied several
coworkers and that her conduct caused several employees to quit.
The interviews occurred between May 14 and 17, and Berry was
terminated on May 18. Despite close temporal proximity between
Berry’s complaints and her termination, the intervening discovery
of misconduct undercuts the inference that Berry’s complaints
caused her termination.
Berry asserts that her positive employment evaluations—
which make no mention of bullying—suggest that Crestwood’s
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22-11129 Opinion of the Court 13

explanation was pretextual. But Berry’s final evaluation occurred
before other employees complained about her. So it does not un-
dermine the legitimacy of Crestwood’s proffered justification.
Berry also argues that pretext can be inferred from Friday’s
conduct during the interviews; Berry asserts that Friday disre-
garded one report that Berry was targeted and two reports of ra-
cial discrimination. But Friday did not disregard these reports. In-
deed, her interview notes reflect the comments. Friday testified
that her recommendations were “based on trends.” And the
overwhelming trend was that Berry was a “bully” and “threaten-
ing” and “abusive.” That Berry and two employees told a differ-
ent story does not undermine the weight or veracity of the other
reports.
Berry’s remaining evidence fails to establish pretext. Berry
states that Friday wrote in her interview notes that “Daphne [Ber-
ry] calls corporate.” According to Berry, a reasonable juror could
infer from this note that Friday began her interviews with an “eye
towards targeting Berry.” We disagree.
Friday was sent to investigate Berry’s complaints. It was
foreseeable that during her investigation—and especially during a
meeting with hospital administrators—Friday would learn that
Berry had called corporate. The note does not suggest that
Crestwood terminated Berry because she called corporate. Berry
also points to the human resource director’s “demeanor” during
her termination. But a harsh tone during a termination meeting
does not create a factual dispute about whether Crestwood’s rea-
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14 Opinion of the Court 22-11129

son was genuine or pretextual. Berry argues that differential
treatment compared to others “with the same or similar alleged
conduct” establishes pretext. But Berry fails to identify any em-
ployees who were accused of similar misconduct.
To establish a genuine dispute of material fact about pre-
text, Berry had to cast doubt on Crestwood’s justification for her
termination. Crestwood explained that it fired Berry after numer-
ous employees reported that she was a bully and source of inter-
personal conflict. None of Berry’s evidence would allow a reason-
able factfinder to find that Crestwood’s stated reason is “unwor-
thy of credence.” Gogel, 967 F.3d at 1136 (citation and internal
quotation marks omitted).
B. Employees May Prove Retaliation with Whatever Circumstantial Ev-
idence Allows a Reasonable Inference of Retaliation, But Berry’s Evi-
dence Falls Short.
Berry argues that even if she cannot satisfy her burden un-
der the McDonnell Douglas framework, she presented a “convinc-
ing mosaic” of circumstantial evidence that allows her retaliation
claims to survive summary judgment. We recently held that an
employee can prove retaliation with circumstantial evidence so
long as the evidence raises a reasonable inference of retaliatory
intent. See Yelling, slip. op. at 25. In other words, the McDonnell
Douglas framework is not the only way to prove retaliation. Id.
We underscore why that holding is correct and explain why Ber-
ry’s circumstantial evidence fails to raise a genuine dispute of ma-
terial fact regarding Crestwood’s retaliatory intent.
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1. An Employee May Rely on a Convincing Mosaic of Circum-
stantial Evidence to Prove Retaliation.
We apply the “conventional rule of civil litigation”—that
an employee may prove any civil claim, including a claim of retal-
iation, with circumstantial evidence. See Desert Palace, Inc. v. Costa,
539 U.S. 90, 99 (2003) (alterations adopted) (citation and internal
quotation marks omitted). When an employee relies on circum-
stantial evidence of retaliation in opposition to summary judg-
ment, she must present enough circumstantial evidence to create
a genuine issue of material fact about the employer’s retaliatory
intent. See Lockheed-Martin, 644 F.3d at 1328. A genuine issue ex-
ists if the evidence, viewed in the light most favorable to the em-
ployee, would allow a reasonable jury to infer that the employer
engaged in intentional retaliation. Id. This legal standard applies
no matter how an employee tries to prove her claim.
The McDonnell Douglas framework is one “tool” that helps
an employee prove retaliation with circumstantial evidence. Com-
cast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 140 S. Ct. 1009,
1019 (2020). It offers “a sensible, orderly way to evaluate the evi-
dence” and helps the employee to “raise[] an inference” of unlaw-
ful conduct. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577
(1978). But the framework is not “an inflexible rule.” Id. at 575.
For decades we have explained that the McDonnell Douglas
framework “is not the exclusive means” by which an employee
can prove discrimination with circumstantial evidence. Lee v. Rus-
sell Cnty. Bd. of Educ., 684 F.2d 769, 773 (11th Cir. 1982); accord
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16 Opinion of the Court 22-11129

Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir.
2011). The McDonnell Douglas framework is also not the only way
to prove retaliation; instead, it is one way to prove retaliation with
circumstantial evidence.
Without relying on the McDonnell Douglas framework, an
employee may prove retaliation with any circumstantial evidence
that creates a reasonable inference of retaliatory intent. Some of
our precedents refer to this evidentiary approach as the “convinc-
ing-mosaic framework.” But a “convincing mosaic” is a metaphor,
not a legal test and not a framework. See Ortiz v. Werner Enters.,
Inc., 834 F.3d 760, 764–65 (7th Cir. 2016). The legal standard—and
the question for the court at summary judgment—is only wheth-
er the evidence permits a reasonable factfinder to find that the
employer retaliated against the employee. That legal standard ap-
plies no matter how an employee presents her circumstantial evi-
dence.
Employees are not limited in the kinds of circumstantial ev-
idence they may present. We have identified three nonexclusive
categories of circumstantial evidence that can raise a reasonable
inference of unlawful conduct: evidence of suspicious timing, am-
biguous statements, or other information from which unlawful
intent may be inferred; evidence of systematically better treat-
ment of similarly situated employees; or evidence that the em-
ployer’s justification for its action is pretextual. See Jenkins v. Nell,
26 F.4th 1243, 1250 (11th Cir. 2022). Whatever form the evidence
takes, “so long as [it] raises a reasonable inference” that the em-
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22-11129 Opinion of the Court 17

ployer retaliated against the employee, “summary judgment is
improper.” See Lockheed-Martin, 644 F.3d at 1328.
To survive summary judgment, the employee must pre-
sent a story, supported by evidence, that would allow a reasona-
ble jury to find that the employer engaged in unlawful retaliation
against the employee. See Lewis v. City of Union City, 934 F.3d 1169,
1185 (11th Cir. 2019). The court must view the evidence in the
light most favorable to the employee and draw all reasonable in-
ferences in her favor. Anderson v. Liberty Lobby, 477 U.S. 242, 255
(1986). “But inferences in favor of [an employee] can be based on-
ly on evidence—not on speculation.” Martin v. Fin. Asset Mgmt.
Sys., Inc., 959 F.3d 1048, 1058 (11th Cir. 2020). “[A] scintilla of evi-
dence in support of the [employee’s] position” is always insuffi-
cient. Anderson, 477 U.S. at 252. When an employer offers “abun-
dant and uncontroverted independent evidence” that no retalia-
tion occurred, the employer will be awarded summary judgment.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000).
Although the McDonnell Douglas framework is merely a
“tool” for proving retaliation, it is a useful one. See Comcast Corp.,
140 S. Ct. at 1019. The burden of persuading the trier of fact that
the employer intentionally retaliated “remains at all times” with
the employee. Burdine, 450 U.S. at 253. The McDonnell Douglas
framework “bring[s] the litigants and the court expeditiously and
fairly to this ultimate question.” Id. So when employees have the
evidence to proceed under McDonnell Douglas, they will often use
that familiar framework. See Ossman v. Meredith Corp., __ F.4th __,
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18 Opinion of the Court 22-11129

No. 22-11462 (11th Cir. 2023). (“[T]he convincing mosaic meta-
phor offers an alternative to [employees] unable to succeed
through the McDonnell Douglas framework.”). But an employee
may present circumstantial evidence—in any form—that creates a
reasonable inference of retaliation.
2. Berry Fails to Offer a Convincing Mosaic.
Berry argues that even if her claims fail under the McDon-
nell Douglas framework, her claims survive because she presented
a convincing mosaic of circumstantial evidence that raises a rea-
sonable inference of retaliation. But for the reasons we explain be-
low, her circumstantial evidence fails to create a genuine issue
concerning Crestwood’s retaliatory intent.
Crestwood contends that Berry did not preserve the con-
vincing-mosaic arguments that she raises in this appeal. But par-
ties do not forfeit “individual arguments.” Hi-Tech Pharms., Inc. v.
HBS Int’l Corp., 910 F.3d 1186, 1194 (11th Cir. 2018) (citation omit-
ted). If a party presents an issue to the district court, she may
make any argument in support of that issue on appeal. Yee v. City
of Escondido, 503 U.S. 519, 534 (1992). Berry argued in the district
court that her evidence raises a reasonable inference of retaliation,
so the issue was adequately preserved.
Berry argues that the record contains evidence of suspi-
cious timing and ambiguous statements, systematically better
treatment of similarly situated employees, and pretext. But the
evidence she identifies, viewed in the light most favorable to her,
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22-11129 Opinion of the Court 19

would not allow a reasonable jury to infer that Crestwood retali-
ated against her. We address that evidence in turn.
First, Berry points to evidence of suspicious timing. Specifi-
cally, she relies on the close temporal proximity between her last
complaint and her termination. But as we explained, Crestwood’s
intervening discovery of misconduct fatally undermines the pro-
bative value of temporal proximity between her protected activity
and her termination.
Berry also points to allegedly “ambiguous statements” as
evidence of retaliatory intent. She reminds us that during inter-
views with hospital administrators, Friday wrote in her notes:
“Daphne calls corporate.” But Friday’s note is neither “ambigu-
ous” nor suggestive of retaliatory intent. As we explained, the
note proves only that during her interviews with Crestwood ad-
ministrators, Friday learned that Berry called the corporate hot-
line.
Berry also suggests that Friday showed indifference to one
comment in favor of Berry and two complaints of racial discrimi-
nation by failing to include those comments in her final report.
But Friday recorded the comments and complaints in her inter-
view notes. And she testified that her report and her recommen-
dations were “based on trends.” The omission of outlier com-
ments—in a final report that summarizes “trends”—does not sup-
port an inference of retaliatory intent.
Next, Berry turns to evidence of systematically better
treatment of similarly situated employees. She asserts that two
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20 Opinion of the Court 22-11129

employees—Shane Gann and Paul Mizzell—engaged in similar
misconduct but were not terminated. But Berry must show that
she and her comparators were “similarly situated in all material
respects.” See Lewis v. City of Union City, 918 F.3d 1213, 1224 (11th
Cir. 2019) (en banc) (internal quotation marks omitted).
Nothing in the record suggests that either Gann or Mizzell
engaged in misconduct comparable in degree or kind to Berry’s
misconduct. Gann yelled at Berry in front of other employees.
And Mizzell “exhibited bullying behaviors” toward his colleagues
for a period of time. But neither employee was the subject of mul-
tiple reports that they were unprofessional, threatening, intimi-
dating, and abusive. Because Berry cannot prove that other em-
ployees engaged in a similar degree of misconduct, she lacks evi-
dence of better treatment of similarly situated employees.
Last, Berry asks us to infer intentional retaliation from the
same evidence that she uses to argue pretext under the McDonnell
Douglas framework. But for the reasons we have explained, none
of that evidence creates a genuine dispute of material fact regard-
ing whether Crestwood’s explanation was pretextual.
To be sure, evidence of pretext may, but need not always,
be part of the employee’s evidence when an employee attempts
to prove retaliation without the McDonnell Douglas framework.
Under the McDonnell Douglas framework, an employer may offer a
legitimate, nonretaliatory reason for its adverse action. Tolar, 997
F.3d at 1289. But when an employer does not proffer a nonretalia-
tory explanation, there is nothing for the employee to rebut. Of
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22-11129 Opinion of the Court 21

course, an employer will ordinarily want to explain its conduct.
And when it does, the employee needs to rebut that explanation.
Here, Crestwood offered a legitimate, nonretaliatory explanation
for terminating Berry, and Berry failed to rebut it.
In sum, the circumstantial evidence cited by Berry—
viewed as a whole and in the light most favorable to her—does
not create a reasonable inference of intentional retaliation. To be
sure, an employee can prove retaliation without the McDonnell
Douglas framework. But Berry has failed to do so.
C. Berry Abandoned a Challenge to the Denial of Her Rule 59(e) Motion.
In a section of her brief that addresses evidence of pretext
and suspicious timing, Berry argues in passing that the district
court abused its discretion when it denied her motion to alter or
amend the judgment under Federal Rule of Civil Procedure 59(e).
But Berry did not properly preserve a challenge to the denial of
her motion. And even if she had, her challenge would fail.
Berry abandoned her challenge to the denial of her Rule
59(e) motion because she did not “plainly and prominently raise”
the issue in her opening brief. See Sapuppo v. Allstate Floridian Ins.,
739 F.3d 678, 681 (11th Cir. 2014) (citation and internal quotation
marks omitted). A party abandons an issue when she makes only
passing references to it, references it as mere background to main
arguments, or buries it within other arguments. Id. at 681–82.
Abandonment also occurs if a party raises an issue for the first
time in a reply brief. Id. at 683. Berry raises her challenge in a sec-
tion about pretext and mentions it only in passing as support for
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22 Opinion of the Court 22-11129

her main argument about temporal proximity and pretext. She
dedicates a section to the Rule 59(e) motion in her reply brief, but
an issue cannot be raised for the first time in a reply brief. Id. So
Berry abandoned any challenge to the denial of her Rule 59(e)
motion.
Even if it had been preserved, Berry’s challenge would fail.
We review the denial of a Rule 59(e) motion for abuse of discre-
tion. Auto. Alignment & Body Serv. v. State Farm Mut. Auto. Ins., 953
F.3d 707, 719 (11th Cir. 2020). Rule 59(e) may not be used “to re-
litigate old matters, [or to] raise argument or present evidence
that could have been raised prior to the entry of judgment.” Mi-
chael Linet, Inc. v. Village of Wellington, 408 F.3d 757, 763 (11th Cir.
2005). The district court correctly determined that an unpublished
decision was not an intervening change in the law and did not
provide a basis for altering the judgment. And Berry otherwise
attempted to relitigate the issue of pretext and raise arguments
about temporal proximity that could have been raised earlier in
the proceeding.
IV. CONCLUSION
We AFFIRM the summary judgment in favor of Crest-
wood.
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22-11129 ABUDU, J., Concurring 1

ABUDU, Circuit Judge, Concurring:
I agree with my colleagues’ determination that the district
court correctly entered summary judgment for Crestwood. Spe-
cifically, Daphne Berry failed to rebut, head-on, Crestwood’s prof-
fered legitimate and non-retaliatory reason for terminating her—a
series of complaints made against her, after her promotion, for
workplace bullying. Although Ms. Berry’s claims fail under the
current legal framework, it is apparent that Crestwood’s actions
toward her changed once she was promoted. To wit, she was an
up-and-coming leader before her promotion but after her promo-
tion, based on complaints from supervisees, she morphed into
someone who “yells and screams at [staff]” and who always
“bull[ies] [people].” (Maj. Op. at 6). Even though the timing be-
tween her complaints and her ultimate termination is suspicious,
Ms. Berry did not overcome the fact that Crestwood’s discovery
of numerous complaints undermines the probative value of that
temporal proximity. See Johnson v. Miami-Dade County., 948 F.3d
1318, 1328 (11th Cir. 2020) (temporal proximity of less than two
months was insufficient by itself to establish pretext).
Although Berry presented evidence that she contends
amounts to an inference of retaliation, including the suspicious
timing between her internal complaints of discrimination and her
termination, the record—as a whole—does not include sufficient
evidence to support her contention.
Even still, I write separately to briefly discuss and observe
that, although this Circuit treats the pretext analysis under the
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2 ABUDU, J., Concurring 22-11129

convincing mosaic approach and the pretext analysis embedded
within the McDonnell Douglas framework as alternatives, they
are—in effect—one and the same. Moreover, I write to encour-
age this Court to decide whether we will do away with this dis-
tinction-without-a-difference and collapse these two approaches
into one all-encompassing framework or examine the convincing
mosaic approach as a true “alternative to the McDonnell Douglas
framework.” Bailey v. Metro Ambulance Servs., Inc., 992 F.3d 1265,
1273 n.1 (11th Cir. 2021).
Although we have applied the convincing mosaic to Title
VII discrimination claims for decades, this is only the second time
in a published opinion where we have explicitly held that a plain-
tiff can prove retaliation through the convincing mosaic ap-
proach. See Yelling v. St. Vincent’s Health Sys., No. 21-10017, slip.
op. at 20 (11th Cir. Oct. 5, 2023) (first published opinion address-
ing the convincing mosaic in the Title VII retaliation context).
Ostensibly, this development seems progressive; in practice, it is
unlikely to yield any meaningful results for plaintiffs who cannot
succeed on a retaliation claim under the McDonnell Douglas
framework. If a plaintiff cannot establish pretext under McDonnell
Douglas, then she will be hard-pressed to establish pretext with a
convincing mosaic. We need not look any further than the in-
stant case where we apply the convincing mosaic approach to
Berry’s retaliation claim, then immediately curtail its application
and dismiss her claims. Then, we neither provide clear guidance
for how the convincing mosaic approach should be analyzed nor
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22-11129 ABUDU, J., Concurring 3

do we effectively explain how it differs from the McDonnell Doug-
las pretext analysis.
My colleagues properly observe that we have used the
phrase “convincing mosaic” as a metaphor simply to recognize
that courts must consider the totality of a plaintiff’s circumstantial
evidence on summary judgment. That alone, however, does not
explain the difference between the two approaches—at least in
terms of the ever-significant pretext analysis—because the
McDonnell Douglas framework also relies on circumstantial evi-
dence. See Lee v. Russell Cnty. Bd. of Educ., 684 F.2d 769, 773–74
(11th Cir. 1982) (“The McDonnell Douglas analysis is ‘intended pro-
gressively to sharpen inquiry into the elusive factual question’ . . .
where the plaintiff’s case is made out with circumstantial evi-
dence. Where a case of discrimination is made out by direct evi-
dence, reliance on the four-part test developed for circumstantial
evidence is obviously unnecessary.”) (internal citations omitted).
This Court’s inquiry into pretext under McDonnell Douglas
only nominally differs from its inquiry into a convincing mosaic.
In other words, both approaches boil down to the same pretext
analysis to survive summary judgment. To be sure, the McDon-
nell Douglas framework first requires the plaintiff to establish a
prima facie case of retaliation, then requires the defendant to prof-
fer a non-retaliatory reason for the employment decision, and last
requires the plaintiff to establish that the proffered reason was
pretextual. See McDonnell Douglas Corp., 411 U.S. 792, 801–05
(1973). To prove that an employer’s explanation is pretextual, an
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4 ABUDU, J., Concurring 22-11129

employee must cast enough doubt on its veracity that a reasona-
ble factfinder could find it “unworthy of credence.” Gogel v. Kia
Motors Manuf. of Ga., Inc., 967 F.3d 1121, 1136 (11th Cir. 2020) (en
banc) (citation and internal quotation marks omitted). Under
McDonnell Douglas, a plaintiff must point to “weaknesses, implau-
sibilities, inconsistencies, incoherencies, or contradictions” to re-
but the employer’s non-retaliatory reason. Patterson v. Ga. Pac.,
LLC, 38 F.4th 1336, 1352 (11th Cir. 2022) (citation and internal
quotation marks omitted).
Cases within our Circuit have held that the convincing mo-
saic approach requires plaintiffs to meet the same burden. For ex-
ample, in Thomas v. Sheriff of Jefferson County, a three-judge panel
held:
Within the convincing mosaic framework, a plaintiff
can show pretext by (a) casting sufficient doubt on
the defendant’s proffered nondiscriminatory reasons
to permit a reasonable fact finder to conclude that
the employer’s proffered reasons were not what ac-
tually motivated its conduct, (b) showing that the
employer’s articulated reason is false and that the
false reason hid discrimination, or (c) establishing
that the employer has failed to clearly articulate and
follow its formal policies.
Thomas v. Sheriff of Jefferson Cnty., No. 22-13875, 2023 WL
6534602, at *6 (11th Cir. Oct. 6, 2023) (citing Lewis v. City of
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22-11129 ABUDU, J., Concurring 5

Union City, 934 F.3d 1169, 1186 (11th Cir. 2019)) (internal
quotations omitted).
This Court has further explained that a convincing mosaic
may also “be shown by evidence that demonstrates, among other
things, (1) suspicious timing, ambiguous statements, or other in-
formation from which discriminatory intent may be inferred, (2)
systematically better treatment of similarly situated employees,
and (3) pretext.” Lewis, 934 F.3d at 1185 (internal quotations omit-
ted).
To further distill this point, this Circuit has, on multiple oc-
casions, stated that a plaintiff cannot get around pretext by merely
attempting to take the convincing mosaic route. See e.g., Thomas,
2023 WL 6534602, at *6 (“[T]he whole convincing mosaic inquiry
is identical to the final stage of the McDonnell Douglas framework:
both ask whether there is enough evidence for a reasonable jury
to infer intentional [retaliation].”); see also Reyes v. Fed. Express
Corp., No. 21-12639, 2022 WL 3867901, at *3 (11th Cir. Aug. 30,
2022) (citing Jenkins v. Nell, 26 F.4th 1243, 1250 (11th Cir. 2022)
(“[E]stablishing the elements of the McDonnell Douglas framework
is not, and never was intended to be, the sine qua non for a plaintiff
to survive a summary judgment motion in an employment dis-
crimination case. However, the plaintiff must also show pretext
under this alternative framework.”); see also Tsavaris v. Savannah
L. Sch., LLC, 847 F. App’x 634, 637 (11th Cir. 2021) (affirming dis-
trict court determination that plaintiff “failed to present a con-
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6 ABUDU, J., Concurring 22-11129

vincing mosaic of circumstantial evidence because . . . she failed
to show pretext.”).
Based on these cases and other, albeit primarily un-
published, opinions 1 of this Court, district courts across the Cir-
cuit have overwhelmingly found that pretext is a requirement of
the convincing mosaic approach without distinguishing the pre-
text analyses. See e.g., Powe v. Farmers Ins. Exch., No. 1:21-CV-
01206-SEG, 2023 WL 2778681, at *12 (N.D. Ga. Mar. 30, 2023)
(quoting Reyes, 2022 WL 3867901, at *3 (“[T]he plaintiff must also
show pretext under this alternative [convincing mosaic] frame-
work.”); see also Moore v. City of Atlanta, No. 1:20-CV-3380-JPB-
JKL, 2023 WL 2646300, at *7 (N.D. Ga. Mar. 27, 2023) (“Overall,
the Court agrees that the record supports a finding of pretext re-
gardless of which standard [convincing mosaic or McDonnell Doug-
las] is applied and that the evidence goes beyond mere quarrelling
with Defendants’ judgment.”); McCreight v. AuburnBank, No. 3:19-
CV-865-RAH-SMD, 2022 WL 2541127, at *6 (M.D. Ala. July 7,
2022) (internal quotations omitted) (“[T]he pretext prong of the
convincing mosaic test is fatal to McCreight’s mosaic theory. She
must do more than argu[e] that the employer’s reasons are false;
she must establish that discrimination was the real reason for her
termination.”); see also Flowers v. Troup Cnty., Ga., Sch. Dist., 1 F.

1 The confusion regarding whether pretext is required under the convincing

mosaic approach mainly occurs at the district court level due to a body of
caselaw this Court has established in unpublished opinions. I reference many
of these opinions only as examples to illustrate the source of the issue within
the Circuit.
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22-11129 ABUDU, J., Concurring 7

Supp. 3d 1363, 1381 (N.D. Ga. 2014) (explaining that a plaintiff
cannot simply rearrange “discarded” pretext tiles into a convinc-
ing evidentiary mosaic).
For decades, we have explained that the McDonnell Douglas
framework “is not the exclusive means” by which an employee
can prove discrimination with circumstantial evidence. Lee, 684
F.2d at 773; accord Smith v. Lockheed-Martin Corp., 644 F.3d 1321,
1328 (11th Cir. 2011). The plaintiff “can still survive summary
judgment by presenting circumstantial evidence that creates a tri-
able issue concerning the employer’s discriminatory intent.”
Smith, 644 F.3d at 1328. We have now held that the McDonnell
Douglas framework is also not the only way to prove retaliation.
But is this accurate?
As my colleagues also correctly point out, “the legal stand-
ard—and the question for the court at summary judgment—is on-
ly whether the evidence permits a reasonable factfinder to find
that the employer retaliated against the employee.” (Maj. Op. at
17). This is true under the McDonnell Douglas and convincing mo-
saic approaches, but both methods require a plaintiff to leap the
pretext hurdle. Yet, we treat these approaches as differing alter-
natives. They are not. It seems that the McDonnell Douglas
framework—at least the pretext analysis—is the exclusive way for
plaintiffs to prove retaliation regardless of label.
To end the resulting confusion, we should either do as our
sister Circuit has done: drop the distinction and evaluate all evi-
dence “as a whole,” Ortiz v. Werner Enterprises, Inc., 834 F.3d 760,
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8 ABUDU, J., Concurring 22-11129

765 (7th Cir. 2016), or allow the convincing mosaic theory to be a
true alternative. Either way—we should choose one consistent
path lest we continue to develop a body of law that perpetuates a
convincing mirage, which confuses litigants, gives false hope, and
shuts out more plaintiffs than our caselaw purports to allow past
go.