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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13073
____________________
TYLER M. COPELAND,
Plaintiff-Appellant,
versus
GEORGIA DEPARTMENT OF CORRECTIONS,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Georgia
D.C. Docket No. 6:20-cv-00057-JRH-BKE
____________________
Before WILSON, JILL PRYOR, and BRASHER, Circuit Judges.
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2 Opinion of the Court 22-13073
JILL PRYOR, Circuit Judge:
Tyler Copeland is a transgender man who, for three years,
was a sergeant at Rogers State Prison in Georgia. From the time
Copeland came out as transgender at work until he filed this suit,
Copeland endured constant and humiliating harassment. Cowork-
ers called Copeland “baby girl.” They went out of their way to call
him “ma’am” on prison-wide radio communications and in front
of inmates. They jokingly speculated he must have a dildo in his
pants. They snickered, pushed him, and followed him. Danger-
ously, given his position and need to command respect from in-
mates, they disobeyed and undermined him. And this harassment
came from all fronts—supervisors, subordinates, and peers alike—
despite his repeated complaints to his supervisors, prison manage-
ment, and human resources personnel.
Copeland sued, bringing three claims under Title VII of the
Civil Rights Act of 1964. The district court granted summary judg-
ment to Copeland’s employer, the Georgia Department of Correc-
tions (“GDOC”). In part, the district court concluded that
Copeland’s Title VII hostile work environment claim failed be-
cause the harassment he suffered was not sufficiently severe or per-
vasive. We disagree and vacate the summary judgment on that
claim. We affirm the district court’s judgment on Copeland’s other
claims.
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I. BACKGROUND
Tyler Copeland became an employee of GDOC a decade
ago. 1 A year after starting, he began working at Rogers State Prison,
a medium-security prison located in southeast Georgia. Two years
later, GDOC promoted Copeland to the rank of sergeant at Rogers.
Copeland is a transgender man, meaning that he was as-
signed the sex of female at birth, but he consistently and persis-
tently identifies as a man. See Glenn v. Brumby, 663 F.3d 1312, 1314
(11th Cir. 2011). While working at Rogers, he began the process of
medically and socially transitioning to align with his gender iden-
tity. He underwent hormone replacement therapy, obtained a legal
name change, and decided to live openly as a man. This decision
required him to disclose his gender identity at work.
To discuss his transition, he met with Becky Johnson, a hu-
man resources (“HR”) employee at Rogers. He gave Johnson pa-
perwork showing his name change, but she told him that he would
need to furnish a birth certificate instead—one that “reflected [his]
name change and gender change.” Doc. 46-3 at 31. 2 Copeland suc-
cessfully amended his birth certificate and gave it to Johnson. Again
she told him to wait, this time for a meeting with Betsy Thomas,
the HR director. Heeding Johnson’s request, he refrained from
1 Because the district court granted summary judgment against Copeland, we
consider the record in the light most favorable to him, meaning we “credit
[Copeland’s] version if there is any evidence to support it.” Feliciano v. City of
Miami Beach, 707 F.3d 1244, 1248 (11th Cir. 2013).
2 “Doc.” numbers refer to the district court’s docket entries.
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4 Opinion of the Court 22-13073
telling anyone at work that he had changed his name to Tyler and
planned to live as a man, consistent with his gender identity.
Things went downhill from there. Thomas called Copeland
and asked if he had “had the surgery” or planned to have it. Id. at
113 (internal quotation marks omitted). He told Thomas it was
“nobody’s business.” Id. (internal quotation marks omitted). Mean-
while, he could hear people laughing on the other end of the call—
a call he had assumed would be private. Copeland left the call with
the impression that he “was now a laughing matter in the [HR] De-
partment.” Id.
Following the call, Thomas convened two in-person meet-
ings: one with Copeland and one with the entire Rogers staff. At
the first meeting, Thomas advised Copeland not to use the men’s
bathroom. At the second meeting, with Copeland present,
Thomas, the warden, and the deputy warden addressed the staff,
informing them of Copeland’s transgender status. The staff was
told to refer to Copeland using either male pronouns or by his title
and last name: Sergeant Copeland. And Copeland was told that he
should report any issues with coworkers to HR or to his supervi-
sors.
According to Copeland, that meeting marked “the begin-
ning of the [u]nlawful and sexual harassment” he “experience[ed]
at work.” Id. In the year that followed, coworkers of all stripes re-
peatedly harassed Copeland.
Much of this harassment was remarkably unconcealed. Rog-
ers staff operated a prison-wide radio system; all employees at the
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facility carried radios and could hear transmissions on the system.
After the meeting, Copeland’s coworkers would finish their radio
transmissions to him by calling him “ma’am,” such that “the whole
institution [could] hear it.” Id. at 38 (internal quotation marks omit-
ted); see also id. at 40 (“It began after that meeting.”). They did this
even though, as a sergeant, Copeland had a call sign on the radio
system, so there was never any need to address Copeland with a
gendered pronoun or an honorific.3 These comments occurred
“[o]n a daily basis”—three or four times each day —and came from
Copeland’s “[s]ubordinates” and “supervisors” alike. Id. at 39. One
time, after a supervisor addressed him over the radio as a woman,
Copeland heard subordinates down the hall laughing at him.
Off the radio, Copeland encountered gossip and harassing
remarks throughout Rogers. One coworker commented that
Copeland must have a “dildo” in “her” pants. Doc. 53-2 at 3. Others
called him “that” and “it.” Doc. 46-3 at 90. His direct supervisor
taunted him and called him “baby girl.” Id. at 115. Cafeteria staff
members joked about transgender people and their genitalia in
front of inmates. A nurse on the medical staff told Copeland that
“she was not going to call [him] sir” because “that wasn’t who [he]
was.” Id. at 92 (internal quotation marks omitted). And Copeland
knew of similar conversations taking place among the prison’s
3 For example, Copeland’s call sign at one point was L1B. Staff understood that
“L1B” was Copeland. So an employee trying to speak to or about Copeland
on the radio had no need to use “ma’am” or “sir” or even “Tyler” or “Sergeant
Copeland.”
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6 Opinion of the Court 22-13073
maintenance staff. Often, and contrary to Thomas’s directive at the
staff meeting that staff refer to Copeland as Sergeant Copeland or
use male pronouns, Copeland’s supervisors called him “ma’am.”
They also commented on his gender in front of subordinates. In-
mates joined in, “mak[ing] inappropriate comments” to Copeland
about his gender identity. Doc. 53-2 at 3. All told, Copeland identi-
fied 34 coworkers who participated in harassing him.
Occasionally, these incidents escalated. During an overnight
shift, as Copeland was entering the prison, another officer, Sheila
Holland, blocked the doorway. Holland confronted Copeland, tell-
ing him, “[W]e can fight.” Doc. 46-3 at 118. She told him that she
was offended when he corrected colleagues who called him
“ma’am” or “she” “because [she was] proud to be a woman.” Id.
(internal quotation marks omitted). A few days after, late in the
evening, Holland “pushed” Copeland as he exited Rogers, drawing
laughter from another sergeant. Id.; see also Doc. 46-5 at 55 (describ-
ing Rogers surveillance video showing Holland “pushing Copeland
from behind” (capitalization altered)). As he walked to his car, she
“circled . . . around” him in an “armed perimeter vehicle” while
carrying a pistol. Doc. 46-3 at 118. She then “parked behind” him.
Id. at 95. Copeland feared for his life.
Copeland repeatedly tried to stop the harassing conduct. For
instance, he spoke with medical, cafeteria, and maintenance staff,
seeking to end conversations in which they joked about him spe-
cifically and transgender people generally. After HR staff called
Copeland “ma’am” in front of new cadets, Copeland explained to
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the cadets that they should instead refer to him as Sergeant
Copeland or with male pronouns. Id. at 43. And he regularly had
“sidebar conversations” with those who misgendered him. Id. at
44.
In addition to addressing the harassment directly,
Copeland—consistent with Thomas’s instructions—reported con-
cerns to supervisors and HR. He told his shift supervisors about the
“constant harassment.” Id. at 114. He spoke to HR manager John-
son when he felt his supervisors failed to take his concerns seri-
ously. He contacted GDOC’s “Employee Assistance Program”
hoping to get access to alternative dispute resolution, therapists,
and mediators, but he “never heard back.” Id. He met with an HR
assistant, Tracy Gay, to “reiterat[e] . . . concerns of harassment in
the workplace.” Id. at 115. He met with the warden. He sought—
but did not receive—a meeting with the deputy warden. In short,
he raised his concerns to Rogers’s entire chain of command.
Copeland persisted for almost a year, but his efforts to ad-
dress the harassment he faced at work failed. After he asked officers
on his shift to use male pronouns or call him Sergeant Copeland,
one supervisor criticized him for how he addressed his shift, warn-
ing that one of his officers could file a grievance against him. When
Copeland met with other supervisors, they told him to give
coworkers “more time to adjust.” Id. (internal quotation marks
omitted). After he raised concerns about his supervisors’ handling
of his HR complaints, HR suggested a meeting with the warden,
but nobody followed up with Copeland and “[n]o meeting
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8 Opinion of the Court 22-13073
occurred” until nearly four months later, when he met with the
warden after once again complaining to HR. Id. Meanwhile, the
harassment continued largely unabated.
Once the harassment began, Copeland’s working conditions
declined in other ways, too. He faced insubordination from officers
he supervised. He was reassigned shifts more often than other
coworkers, including being moved to the night shift —a less desir-
able posting. His supervisors refused to let him miss work to attend
longstanding doctor’s appointments. And he was not permitted to
take a “promotional assessment test”—to allow him “more time”
to prepare following a brief medical leave. Id. at 117–18.
Copeland began to seek other work, both within GDOC and
elsewhere. Over the course of three years, he submitted “four or
five” applications to be promoted to lieutenant at Rogers. Id. at 59.
Within the broader GDOC system, he attempted to transfer to po-
sitions with Treutlen Probation Center and with GDOC investiga-
tions. Outside of GDOC, he applied for positions with the Federal
Bureau of Prisons, the Georgia Department of Juvenile Justice, and
Georgia Southern University’s police department. Each prospec-
tive employer rejected him, and none gave him a reason why. He
did not know who made hiring decisions for each position. But he
knew that some of these potential employers contacted individuals
at Rogers for character references. He feared that these references
may have played a role in his inability to obtain a promotion or
transfer.
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After the incident in which Holland pushed, confronted, and
later menaced Copeland, he emailed his captain, the deputy war-
den of security, and the warden about the incident. A few days
later, a GDOC investigator, Jessica Moseley, contacted him to ar-
range an interview. He described to Moseley the incident with Hol-
land, but he felt “the interview was not about the incident but ra-
ther finding a way to get [him] to incriminate [him]self.” Id. at 119.
Moseley conducted additional interviews with Holland and other
Rogers personnel, reviewed surveillance video of Holland’s en-
counter with Copeland, and prepared a report. Even though the
video showed Holland “pushing Copeland from behind,” Doc. 46-
5 at 55 (capitalization altered), Moseley’s report concluded that
Copeland’s allegations of sexual harassment and assault against
Holland were “not sustained,” id. at 4 (emphasis omitted).
At that point, Copeland lost his “faith in the internal affairs
system” at GDOC. Doc. 46-3 at 48. Armed with a list he had been
keeping of “major incidents that took place” at Rogers, id. at 37, he
found a lawyer and filed a discrimination charge with the Equal
Employment Opportunity Commission (“EEOC”). In the charge,
he alleged that since the initial meeting at which he had come out
as transgender, he had been subjected to “constant harassment”
and “disparate treatment by [GDOC],” in violation of Title VII.
Doc. 53-2 at 4 (emphasis omitted). The EEOC dismissed
Copeland’s charge of discrimination and notified him of his right
to sue. Shortly after, GDOC promoted him to lieutenant.
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10 Opinion of the Court 22-13073
Copeland sued GDOC in the Southern District of Georgia,
bringing three claims under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq. 4 Count I alleged that GDOC subjected
Copeland to a hostile work environment because of his
transgender status, violating 42 U.S.C. § 2000e-2(a)(1). Count II al-
leged that GDOC failed to promote Copeland because of his
transgender status, violating 42 U.S.C. § 2000e-2(a)(1). And
Count III alleged that GDOC retaliated against Copeland for en-
gaging in a protected practice—opposing sex discrimination—vio-
lating 42 U.S.C. § 2000e-3(a).
GDOC moved for summary judgment, which Copeland op-
posed. The district court granted GDOC’s motion on all counts.
On Count I, the district court concluded that the harassment
Copeland suffered was not objectively “severe or pervasive,” so he
failed to satisfy an element of this claim. Doc. 63 at 17; see Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (explaining that conduct
must be “sufficiently severe or pervasive to alter the conditions of
the victim’s employment” to be actionable under Title VII (internal
quotation marks omitted)). It addressed Counts II and III—failure
4 Copeland also brought one claim under the Fair Labor Standards Act,
29 U.S.C. § 201 et seq., alleging that GDOC failed to pay him overtime when
he worked over 40 hours per week. The district court granted summary judg-
ment to GDOC on this claim based on sovereign immunity. Because
Copeland does not challenge that ruling in his appellate brief, we address this
claim no further. See United States v. Campbell, 26 F.4th 860, 871 (11th Cir. 2022)
(en banc) (“[I]ssues not raised in the initial brief on appeal are deemed aban-
doned.”).
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22-13073 Opinion of the Court 11
to promote and retaliation—together. It granted GDOC summary
judgment on both counts because it concluded that Copeland
could not “establish a causal connection between [Copeland’s] pro-
tected activity and [GDOC’s] decision not to promote” him. Id. at
21.
This is Copeland’s appeal.
II. STANDARD OF REVIEW
We review a district court’s grant of summary judgment de
novo, applying the same legal standards that bound the district
court. Patterson v. Ga. Pac., LLC, 38 F.4th 1336, 1345 (11th Cir. 2022).
We affirm summary judgment only when the moving party
“shows that there is no genuine dispute as to any material fact
and . . . is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). “[W]hen determining whether there is a genuine issue of ma-
terial fact[,] . . . we do not weigh conflicting evidence or make cred-
ibility determinations to resolve factual disputes.” Patterson, 38
F.4th at 1350. Instead, we give the nonmovant the benefit of his
evidence, “credit[ing] the nonmoving party’s version” of events,
even if it is supported “solely by the testimony of a party.” Feliciano
v. City of Miami Beach, 707 F.3d 1244, 1247 (11th Cir. 2013) (empha-
sis omitted) (internal quotation marks omitted).
We may affirm the district court’s judgment on any ground
supported by the record. Thomas v. Cooper Lighting, Inc., 506 F.3d
1361, 1364 (11th Cir. 2007).
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III. ANALYSIS
Copeland argues that the district court erred when it
granted summary judgment to GDOC on his three Title VII
claims. We agree in part. The district court erred when it con-
cluded—on the summary judgment record—that Copeland had
not suffered severe or pervasive harassment. We therefore vacate
the summary judgment in GDOC’s favor on Count I. We otherwise
affirm.
A. Hostile Work Environment
“[F]ew pieces of federal legislation rank in significance with
the Civil Rights Act of 1964.” Bostock v. Clayton Cnty., 140 S. Ct.
1731, 1737 (2020). Title VII of the Act makes it unlawful for a cov-
ered employer to “discriminate against any individual with respect
to his compensation, terms, conditions, or privileges of employ-
ment, because of such individual’s race, color, religion, sex, or na-
tional origin.” 42 U.S.C. § 2000e-2(a)(1). This provision prohibits
“requiring people to work in a discriminatorily hostile or abusive
environment.” Harris, 510 U.S. at 21.
To prevail on a hostile work environment claim, we require
a plaintiff to prove five elements: (1) he “belongs to a protected
group”; (2) he was “subject to unwelcome harassment”; (3) the har-
assment was “based on a protected characteristic”; (4) the harass-
ment was “sufficiently severe or pervasive to alter the conditions
of” his employment; and (5) his employer was “responsible for” the
hostile work environment. Bryant v. Jones, 575 F.3d 1281, 1296 (11th
Cir. 2009). Only the fourth element is at issue here. GDOC does
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not argue that Copeland—a transgender man who was harassed
about his gender after coming out at work—has failed to satisfy the
first three elements. Wisely so: discrimination against transgender
individuals like Copeland is discrimination “because of sex.” Bos-
tock, 140 S. Ct. at 1743. And the district court did not address the
fifth element, GDOC’s responsibility; it granted GDOC summary
judgment on the sole basis that Copeland failed to show severe or
pervasive harassment.
The severe-or-pervasive element ensures that a hostile work
environment claim remains faithful to the text of Title VII. It makes
actionable only a work environment sufficiently suffused with “in-
timidation, ridicule, and insult . . . to alter the conditions of the vic-
tim’s employment.” Harris, 510 U.S. at 21 (internal quotation
marks omitted). This standard does not require a plaintiff to suffer
a “serious effect on [his] psychological well-being” nor even a “tan-
gible effect[]” on his job performance before suing. Id. at 20, 22. But
nor does it permit Title VII to operate as a “civility code for the
American workplace.” Oncale v. Sundowner Offshore Servs., Inc., 523
U.S. 75, 80 (1998). Instead, it charts “a middle path between making
actionable any conduct that is merely offensive and requiring the
conduct to cause a tangible psychological injury.” Harris, 510 U.S.
at 21.
The severe-or-pervasive element has two subrequirements:
one subjective and the other objective. Bryant, 575 F.3d at 1297. To
satisfy the subjective requirement, a plaintiff must “subjectively
perceive[]” the hostile work environment “to be abusive.” Miller v.
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14 Opinion of the Court 22-13073
Kenworth of Dothan, 277 F.3d 1269, 1276 (11th Cir. 2002) (internal
quotation marks omitted). The district court concluded on the
summary judgment record that Copeland satisfied the subjective
requirement, and GDOC does not challenge that conclusion on ap-
peal. 5 Where Copeland’s claim failed (and where the parties focus
their attention) is on the objective component, which requires a
plaintiff to show “an environment that a reasonable person would
find hostile or abusive”—that is, one where severe or pervasive har-
assment of the victim occurs. Id. (internal quotation marks omit-
ted).
We consider four factors to determine whether harassment
of an employee meets this objective requirement: (1) its frequency,
(2) its severity, (3) whether it is “physically threatening or humili-
ating,” and (4) whether it “unreasonably interferes with . . . job per-
formance.” Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir.
1999) (en banc). Although these factors guide our inquiry, they are
neither elements nor requirements. See Bryant, 575 F.3d at 1297
5 Even if GDOC had challenged it, we would agree with the district court that
a reasonable jury could conclude that Copeland “subjectively believed the
conduct at the prison” was abusive. Doc. 63 at 13. At various times Copeland
“was in fear [for his] life,” Doc. 46-3 at 118, and perceived that his coworkers’
actions put “his safety [at] exceptional risk,” Doc. 53-2 at 3. He made numer-
ous complaints over the course of many months to his supervisors regarding
what he perceived as constant harassment. And he filed an EEOC charge of
discrimination, as well as this lawsuit. Taken together, this evidence easily sat-
isfies Copeland’s summary judgment burden of showing that he “subjectively
perceive[d]” his work environment as “abusive.” Miller, 277 F.3d at 1276 (in-
ternal quotation marks omitted).
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(“[T]he objective element is not subject to mathematical precision
. . . .”). Instead, our task is to “determine under the totality of the
circumstances whether the harassing conduct . . . alter[ed] the
terms or conditions of the plaintiff’s employment.” Mendoza, 195
F.3d at 1246. This inquiry is highly contextual. See Oncale, 523 U.S.
at 81–82 (“The real social impact of workplace behavior often de-
pends on a constellation of surrounding circumstances . . . .”). Ac-
cordingly, as the Supreme Court has emphasized, “‘no single fac-
tor’ is necessary to satisfy the objective inquiry of a hostile work
environment claim.” Fernandez v. Trees, Inc., 961 F.3d 1148, 1155
(11th Cir. 2020) (quoting Harris, 510 U.S. at 23); see also Miller, 277
F.3d at 1276 (explaining that “focusing on [a] single factor . . . loses
sight of the totality of the circumstances approach”).
Thus, for example, harassment may violate Title VII with-
out interfering with an employee’s performance. Fernandez,
961 F.3d at 1155. And infrequent but severe instances of harass-
ment may support a claim. See Adams v. Austal, U.S.A., LLC,
754 F.3d 1240, 1254 (11th Cir. 2014) (“Although his supervisor’s
carving was an isolated act, it was severe.”) The same goes for fre-
quent but less severe harassment. See Reeves v. C.H. Robinson World-
wide, Inc., 594 F.3d 798, 808 (11th Cir. 2010) (en banc) (“Either se-
verity or pervasiveness is sufficient to establish a violation of Title
VII.” (emphasis in original)).
Joined by the United States as amicus curiae, Copeland ar-
gues that the district court erred when it decided that he failed to
present evidence from which a reasonable jury could conclude that
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16 Opinion of the Court 22-13073
the harassment he faced was sufficiently severe or pervasive to
meet this test. We agree with Copeland and the United States. We
discuss in turn the application of each factor and then consider the
totality of the circumstances.
1. The Harassment Was Frequent.
First, frequency. Our precedents, although they guide us, es-
tablish no “magic number” of instances of harassment sufficient to
qualify as frequent. Miller, 277 F.3d at 1276 (internal quotation
marks omitted). In the past, we have treated 15 instances of harass-
ment in four months as “not infrequent,” Johnson v. Booker T. Wash-
ington Broad. Serv., Inc., 234 F.3d 501, 509 (11th Cir. 2000), “more
than 10” specific instances in two months as “frequent,” Fernandez,
961 F.3d at 1153, and five instances over an 11-month period as “too
infrequent,” Mendoza, 195 F.3d at 1250. But wherever the boundary
may lie, a jury crediting Copeland’s testimony could find that his
harassment well surpassed it.
Copeland identified 34 individuals he says harassed him at
work. In his deposition, he described how each of these individuals
participated in his harassment. He identified a list of instances of
harassment he prepared that spans seven typed pages. And, signifi-
cantly, he testified that the radio harassment he experienced oc-
curred “daily”—“three or four” times each day for at least a year.
Doc. 46-3 at 39, 102. Undoubtedly, conduct that occurs daily (even
over a shorter span of time) is frequent. See Miller, 277 F.3d at 1276.
The district court dismissed as “conclusory” Copeland’s tes-
timony that his coworkers regularly harassed him over the radio.
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Doc. 63 at 15. It said that Copeland’s testimony about daily radio
harassment did not match up with the “enumerated occurrences”
on Copeland’s seven-page list. Id. The district court thus limited its
analysis to 17 incidents it identified on the list.
We have cautioned district courts against discounting testi-
mony in this way at the summary judgment stage. See Fernandez,
961 F.3d at 1153–54 (rejecting defendant’s argument that plaintiff’s
testimony that he was harassed “nearly every day was conclusory”
(internal quotation marks omitted)). In Feliciano, we reversed the
district court, which had rejected a plaintiff’s testimony as conclu-
sory. 707 F.3d at 1253 We explained that “a plaintiff’s testimony
cannot be discounted on summary judgment unless it is blatantly
contradicted by the record, blatantly inconsistent, or incredible as
a matter of law, meaning that it relates to facts that could not have
possibly been observed or events that are contrary to the laws of
nature.” Id.
Copeland’s testimony is none of these things. He never con-
tradicted himself. He maintained throughout his deposition that
the radio harassment occurred “constantly” or “on a daily basis.”
Doc. 46-4 at 44, 57; see also id. at 37 (“constant” and “daily basis”),
39 (“daily basis”), 102 (“three or four times” daily). Nor was his tes-
timony undermined by other parts of the record, as the district
court supposed. Although Copeland did not catalog the radio har-
assment in his contemporaneous list, he explained in his deposition
that the list contained only “major incidents.” Id. at 37. He testified
that he “did not include” the radio harassment in the list because it
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18 Opinion of the Court 22-13073
was “constant” and documenting it would have been “tedious.” Id.
And given that he identified 34 individuals who he says participated
in harassing him and that he frequently complained to HR and his
superiors, it is not incredible that he suffered daily harassment. By
discounting Copeland’s testimony about the frequency of the har-
assment he faced, the district court improperly denied him the ben-
efit of his evidence at the summary judgment stage. When we con-
sider this testimony, we easily conclude that a jury crediting
Copeland’s evidence could find that the harassment Copeland
faced was frequent.
2. The Harassment Was Severe.
Second, we turn to severity. Considering factors our circuit
has traditionally endorsed, we conclude that Copeland has put for-
ward evidence sufficient to enable a reasonable jury to conclude
that the harassment was severe. A reasonable jury could find that
the harassment continued despite Copeland’s objections, supervi-
sors participated in the harassment, and the harassment took place
in the correctional context.
Our cases have long recognized that harassment is more se-
vere when it occurs “despite the employee’s objections.” Miller, 277
F.3d at 1276 (internal quotation marks omitted); see also Fernandez,
961 F.3d at 1154 (concluding that harassment was severe in part
because it “persisted . . . despite . . . employees’ complaints); Reeves,
594 F.3d at 812 (noting, in concluding that evidence showed severe
harassment, that a “manager accepted and tolerated [harassment]
over [the employee’s] repeated complaints” (internal quotation
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22-13073 Opinion of the Court 19
marks omitted)). Copeland repeatedly objected—without suc-
cess—to his coworkers’ treatment of his gender. He confronted
coworkers directly. See, e.g., Doc. 46-3 at 114 (“I stated to him . . . ‘I
would appreciate it if you would not embarrass me on the radio
like that again.’”). He told his shift supervisors about the harass-
ment he faced and spoke to HR multiple times when he felt that
his supervisors failed to take his concerns seriously. He even met
with the warden. But, as we have described, these efforts failed to
abate the harassment.
Harassment is also more severe when it involves the partic-
ipation of supervisors rather than solely peers or subordinates. As
the Supreme Court has explained, “an employee subjected to a su-
pervisor’s . . . harassment . . . may well be reluctant to accept the
risks of blowing the whistle on a superior” who has the power to
“hire and fire, and to set work schedules and pay rates.” Faragher v.
City of Boca Raton, 524 U.S. 775, 803 (1998) (internal quotation
marks omitted). Thus, when “measuring the severity of harassing
conduct,” courts have recognized that “a supervisor’s [actions im-
pact] the work environment far more severely than [those of] co-
equals.” Boyer-Liberto v. Fontainbleau Corp., 786 F.3d 264, 278 (4th
Cir. 2015) (en banc) (internal quotation marks omitted); accord
Hulsey v. Pride Rests., LLC, 367 F.3d 1238, 1247 (11th Cir. 2004) (ac-
knowledging that harassment by a supervisor is more likely “to be
physically threatening and humiliating”). It is true that some har-
assment Copeland experienced came from his subordinates. But
supervisors participated in harassing him, too. Lieutenant Dickson,
for example, “taunt[ed]” Copeland and repeatedly called him “baby
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20 Opinion of the Court 22-13073
girl.” Doc. 46-3 at 115. Lieutenant Davis unnecessarily and gratui-
tously addressed Copeland over the radio with female pronouns
while other employees laughed. When Copeland asked Davis to
stop, Davis laughed, too. These supervisors’ participation would
allow a reasonable jury to conclude that the harassment was se-
vere. 6
In determining whether harassment is severe, precedent
also requires our “careful consideration of the social context in
which particular behavior occurs and is experienced by its target.”
Oncale, 523 U.S. at 81. We conclude the context in which Copeland
was harassed—while working as a correctional officer—makes the
harassment he faced more severe. The correctional context is dan-
gerous and sometimes violent—dramatically more so than the typ-
ical workplace. See Srinivas Konda et al., U.S. Correctional Officers
6 At oral argument, GDOC argued that the harassment was not severe because
Copeland could have disciplined his subordinates who participated. GDOC’s
argument overlooks the participation of Copeland’s supervisors. It also ig-
nores critical context that Supreme Court precedent requires us to consider in
analyzing severity. See Oncale, 523 U.S. at 81. Copeland’s evidence shows that
he did not sit idly by as subordinates engaged in harassment; he often sought
to correct those who misgendered or disobeyed him. But he was stymied by
supervisors, who criticized him for how he addressed his subordinates and told
him that he should give them more time to adjust. Further, HR personnel di-
rected Copeland to report harassment to them and to his supervisors rather
than taking direct action against his subordinates. He heeded that directive.
Finally, as we have described, supervisors modeled the harassing behavior in
which subordinates engaged. We will not overlook harassment by subordi-
nates when supervisors have a hand in modeling and perpetuating that harass-
ment.
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22-13073 Opinion of the Court 21
Killed or Injured on the Job, 75 Corrs. Today 122 (2013) (finding that
correctional officers experience injuries due to assaults and violent
acts at a rate 36 times greater than other workers). Indeed, at the
time of his deposition, Copeland was on medical leave after an in-
mate attacked him, injuring his leg. In this context, singling out an
employee for harassment sends the message to coworkers that the
victim need not receive the support and cooperation necessary to
remain safe. It sends the message to inmates that the victim is fair
game. See Jemmot v. Coughlin, 85 F.3d 61, 67 (2d Cir. 1996) (conclud-
ing that by “humiliating [a correctional officer] in front of prisoners
he [was] required to control,” coworkers had “put him in danger of
physical harm”).
Together, these considerations persuade us that Copeland
has created a genuine issue of material fact whether the harassment
he endured was severe. In contrast, the district court concluded,
largely without explanation, that the harassment Copeland faced
was “simple rudeness and discourtesy”—statements insufficiently
severe to alter Copeland’s conditions of employment. Doc. 63 at
15. We disagree.
When viewed in the light most favorable to Copeland, the
record fails to support the district court’s conclusion that the har-
assment here amounted to “simple rudeness.” Id. Coworkers joked
about Copeland having a “dildo” in “her” pants, Doc. 53-2 at 3; they
pushed him; they called him “it” and “that” (in addition to
“ma’am”), Doc. 46-3 at 90; they disobeyed his commands; and they
went out of their way to broadcast their comments over a facility-
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22 Opinion of the Court 22-13073
wide radio system daily. On these facts, a reasonable jury could de-
termine that these comments were not inadvertent, accidental, or
in good faith, but intentionally insulting and degrading. It could
therefore conclude that Copeland faced severe harassment based
on a protected characteristic.
3. The Harassment Was Physically Threatening
and Humiliating.
Third, we address whether the harassment was physically
threatening or humiliating. Crediting Copeland’s version of events,
a reasonable jury could find it was both.
Copeland put forward evidence that he faced physically
threatening harassment in his interactions with Holland. Accord-
ing to Copeland, Holland said, “[W]e can fight,” while blocking
Copeland’s path. Doc. 46-3 at 118. Holland pushed Copeland.
Then, while carrying a gun, she followed him outside, circled him
in an armed vehicle, and parked behind him. Copeland perceived
this conduct as physically threatening: he testified that he feared for
his life and immediately notified his supervisors of what had hap-
pened.
Rather than credit Copeland’s version of events, the district
court relied on the conclusions of GDOC’s investigation—that
Holland acted in a “joking” and “friend[ly]” manner. Doc. 63 at 16
(internal quotation marks omitted). But the evidence underlying
GDOC’s investigation partly corroborated Copeland’s story: sur-
veillance video GDOC reviewed showed Holland pushing
Copeland from behind. Where GDOC’s investigation reached
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22-13073 Opinion of the Court 23
conclusions that diverged from Copeland’s testimony, the conclu-
sions were largely based on differing statements by Copeland, Hol-
land, and another witness. On summary judgment, however, the
district court may not take sides in a “swearing match” between
the parties, “which is the stuff of which jury trials are made.” Feli-
ciano, 707 F.3d at 1253; see also Hulsey, 367 F.3d at 1240–42 (crediting
a plaintiff’s version of events at the summary judgment stage not-
withstanding that the employer’s internal investigation did “not
corroborate [her] allegations”).
The harassment Copeland suffered was also humiliating. As
we have recognized, harassment that occurs “in the presence of co-
workers” is especially humiliating. Fernandez, 961 F.3d at 1155.
Copeland’s coworkers harassed him over the prison radio system,
so “the whole institution [could] hear.” Doc. 46-3 at 38. He knew
his coworkers were listening; he heard them laughing. He often
had to explain his transgender status after being misgendered in
front of subordinates.
In another context, this Court has acknowledged that “most
people have a special sense of privacy in their genitals.” Adams v.
Sch. Bd. of St. John’s Cnty., 57 F.4th 791, 805 (11th Cir. 2022) (en
banc) (internal quotation marks omitted). Copeland’s coworkers
transgressed this boundary in a humiliating way. He heard HR staff
laughing at him during a call in which Thomas asked if he had un-
dergone genital surgery, leaving him feeling that he was “a laugh-
ing matter in the [HR] [d]epartment.” Doc. 46-3 at 113. And one
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24 Opinion of the Court 22-13073
coworker joked that Copeland must have a “dildo” in “her” pants.
Doc. 53-2 at 3. 7
4. The Harassment Negatively Impacted
Copeland’s Job Performance.
Fourth is the harassment’s impact on Copeland’s job perfor-
mance. At the outset, we acknowledge that Copeland eventually
received a promotion from sergeant to lieutenant, which suggests
that his job performance had been satisfactory. But the summary
judgment record contains evidence from which a reasonable jury
could conclude the harassment did in fact negatively interfere with
Copeland’s job performance.
This evidence supports an inference that the harassment un-
dermined Copeland’s authority and his ability to command the
obedience of subordinates within Rogers’s rank structure. Holland,
following her confrontation with Copeland, refused to give him
keys he needed to transfer inmates out of Rogers. Another subor-
dinate who, according to Copeland, called him “it” and “that” in
addition to “ma’am,” refused to serve disciplinary papers on in-
mates as Copeland ordered. Doc. 36-3 at 90. When he reported
these instances of insubordination to his supervisors, they generally
took no action, sending the message that insubordination directed
at him was acceptable. Inmates participated in harassing Copeland,
7 The district court claimed—without elaboration—that “there is no evidence
of any humiliation of Plaintiff.” Doc. 63 at 16. Considering our analysis of the
summary judgment record, we disagree.
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22-13073 Opinion of the Court 25
too, further supporting a conclusion that his mistreatment deeply
diminished his status and authority at Rogers.
* * *
At last, guided by our discussion of the four factors, we con-
sider whether, under the totality of the circumstances, a reasonable
jury could conclude that the harassment Copeland faced was ob-
jectively severe or pervasive enough to alter the terms or condi-
tions of his employment. See Mendoza, 195 F.3d at 1246. We are
more than satisfied that it could. Each of the four factors favors a
finding of severe or pervasive harassment—two (frequency and hu-
miliation) strongly so. According to Copeland’s evidence, accepted
as true at summary judgment, each day, when he reported to work,
his supervisors, subordinates, and peers publicly humiliated him
because his gender identity differs from the sex he was assigned at
birth. They did so notwithstanding his complaints to every level of
prison leadership. Title VII does not countenance such behavior.
The district court therefore erred by granting summary judgment
to GDOC because the harassment was not sufficiently severe or
pervasive.
Copeland has met his summary judgment burden as to the
first four elements of a hostile work environment claim, but there
is a fifth element. He still must show that GDOC was “responsible
for the hostile work environment,” whether “under either a theory
of vicarious or direct liability.” Miller, 277 F.3d at 1278.
GDOC argued below that it was not responsible for the hos-
tile work environment because it took prompt action to address
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26 Opinion of the Court 22-13073
the harassment. Because the district court found that the harass-
ment was not sufficiently severe and pervasive, it did not address
this element, and GDOC has not briefed it on appeal. Under these
circumstances, we decline to address it in the first instance. After
all, “we are a court of review, not a court of first view.” Stansell v.
Revolutionary Armed Forces of Colom., 45 F.4th 1340, 1348 (11th Cir.
2022) (alterations adopted) (internal quotation marks omitted). In-
stead, we vacate the grant of summary judgment on Count I and
leave it to the district court to address this fifth element on remand.
B. Failure to Promote
Count II of Copeland’s complaint alleged that GDOC failed
to promote Copeland because of his transgender status, violating
42 U.S.C. § 2000e-2(a)(1). The district court considered this claim
alongside the retaliation claim alleged in Count III, reasoning that
both claims failed because Copeland could not “establish a causal
connection between . . . protected activity and the decision not to
promote” him. Doc. 63 at 21. The district court erred in its treat-
ment of Count II because it analyzed this claim under the wrong
legal standard. The error was harmless, however, because even un-
der the proper legal standard, Copeland’s Count II fails. We there-
fore affirm the district court’s grant of summary judgment on this
count. See Thomas, 506 F.3d at 1364 (“We may affirm the district
court’s judgment on any ground that appears in the record,
whether or not that ground was relied upon or even considered by
the court below.”).
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22-13073 Opinion of the Court 27
Section 2000e-2(a)(1) makes it an unlawful employment
practice for a covered employer like GDOC to “fail or refuse to
hire . . . any individual . . . because of” a protected characteristic,
like transgender status. See Bostock, 140 S. Ct. at 1737. Copeland al-
leged that GDOC violated this requirement because it refused to
promote him because of his transgender status. To prevail on this
claim, Copeland was not required to show that he engaged in pro-
tected activity or that such activity was the cause of GDOC’s failure
to promote him. See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079,
1086–91 (11th Cir. 2004) (allowing failure-to-promote claim to go
forward at summary judgment without imposing such require-
ments), abrogated on other grounds by Lewis v. City of Union City, 918
F.3d 1213 (11th Cir. 2019) (en banc). Those requirements, when
they exist, derive from the text of the separate anti-retaliation pro-
vision at issue in Count III, 42 U.S.C. § 2000e-3(a), which makes it
an unlawful employment practice to “discriminate against any in-
dividual . . . because he has opposed any practice made an unlawful
employment practice by” Title VII. The district court thus had no
reason to analyze whether Copeland had engaged in protected ac-
tivity and could show a causal connection between that activity and
the decision not to promote him in the context of Count II.
But Copeland was required to show that GDOC acted “be-
cause of . . . sex.” 42 U.S.C. § 2000e-2(a)(1). The district court’s ap-
plication of an erroneous causation standard was harmless because
he cannot make this showing. One way a Title VII plaintiff can sur-
vive summary judgment is by making out a prima facie case of dis-
crimination under the burden-shifting framework the Supreme
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28 Opinion of the Court 22-13073
Court first set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Under this framework, plaintiffs alleging discriminatory fail-
ure to promote generally must introduce evidence showing that
“other equally or less qualified employees who were not members
of the protected class were promoted” instead. Combs v. Plantation
Patterns, 106 F.3d 1519, 1539 n.11 (11th Cir. 1997). Copeland alleged
that, instead of promoting him, GDOC hired equally qualified in-
dividuals who are not transgender. But he presented no evidence
to support this allegation at the summary judgment stage: there is
no evidence at all about those GDOC hired, who did the hiring, or
what qualifications were considered. That failure is fatal because,
faced with a motion for summary judgment, a “party who fails to
make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the
burden of proof at trial,” loses. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). And the necessary showing cannot be made on “the
mere pleadings themselves.” Id. at 324. We therefore affirm the dis-
trict court’s grant of summary judgment to GDOC on Count II. 8
8 Of course, relying on the McDonnell-Douglas framework is not the only way
for a Title VII plaintiff to survive summary judgment. See Tynes v. Fla. Dep’t of
Juv. Just., 88 F.4th 939, 944–45 (11th Cir. 2023). As an alternative to proceeding
under McDonnell Douglas’s framework, a plaintiff may present direct evidence
of discrimination (something lacking here) or “a convincing mosaic of circum-
stantial evidence that would allow a jury to infer intentional discrimination by
the decisionmaker.” Id. at 946 (internal quotation marks omitted). In some
cases, a plaintiff’s failure to prove a prima facie case under McDonnell Douglas
“often also reflects a failure of the overall evidence.” Id. We are satisfied this is
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22-13073 Opinion of the Court 29
C. Retaliation
Count III of Copeland’s complaint alleged that GDOC retal-
iated against him for engaging in a protected practice—namely, op-
posing sex discrimination—violating 42 U.S.C. § 2000e-3(a). Similar
to the discrimination claim in Count II, Copeland had no direct ev-
idence of retaliatory intent and instead relied on the McDonnell-
Douglas framework. To establish a prima facie case of retaliation at
the first step of that framework, Copeland bore the burden of
showing that “(1) [he] engaged in an activity protected under Title
VII; (2) [he] suffered an adverse employment action; and (3) there
was a causal connection between the protected activity and the ad-
verse employment action.” Crawford v. Carroll, 529 F.3d 961, 970
(11th Cir. 2008). The district court granted summary judgment to
GDOC on this count, concluding Copeland failed to establish a
prima facie case. We affirm because Copeland cannot succeed on
the third element of the prima facie case, causation.
There is no question that Copeland satisfied the first ele-
ment: he engaged in protected activity by advocating against his
harassment, filing an EEOC charge, and filing this lawsuit. See
42 U.S.C. § 2000e-3(a). But the parties dispute what forms of al-
leged retaliation satisfy the second element, which makes actiona-
ble only “adverse employment action[s],” Crawford, 529 F.3d at
such a case. Copeland’s inability to present any evidence about those GDOC
hired in his stead, who made the hiring decisions, and what factors they con-
sidered amounts to a failure to present a case from which a reasonable jury
could find that GDOC failed to promote Copeland because he is transgender.
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30 Opinion of the Court 22-13073
970—those that “well might have dissuaded a reasonable worker
from making or supporting a charge of discrimination.” Burlington
N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quo-
tation marks omitted). According to GDOC, the only alleged in-
stance of retaliation that even arguably satisfies this element is
GDOC’s failure to promote Copeland until after the resolution of
his EEOC charge. In contrast, Copeland argues that GDOC is liable
for retaliation not just for failing to promote him but also because
he faced “increased harassment, hostile work environment,” actual
and threatened “discipline,” and worsening working conditions—
like his reassignment to less desirable shifts. Appellant’s Br. 33.
The only “adverse action” Copeland argued in the district
court, however, was “GDOC refusing to transfer or promote him.”
Doc. 63 at 18; see also Doc. 58 at 14 (arguing that GDOC’s “refusal
to transfer or promote Copeland . . . forms the basis of Copeland’s
retaliation” claim). Absent exceptional circumstances, “an issue not
raised in the district court and raised for the first time in an appeal
will not be considered by this court.” Access Now, Inc. v. Sw. Airlines
Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (internal quotation marks
omitted); cf. United States v. Campbell, 26 F.4th 860, 871–875 (11th
Cir. 2022) (en banc) (same for issues not raised in opening brief on
appeal). We therefore consider only GDOC’s allegedly retaliatory
failure to promote (or transfer) Copeland.
As to GDOC’s decision not to promote him, Copeland fails
at the third element, causation. The causal-connection require-
ment mandates a showing that “the protected activity and the
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22-13073 Opinion of the Court 31
adverse action were not wholly unrelated.” Gupta v. Fla. Bd. of Re-
gents, 212 F.3d 571, 590 (11th Cir. 2000) (internal quotation marks
omitted), abrogated on other grounds by Burlington, 548 U.S. 53. But a
retaliation claim must reflect actual, subjective—not construc-
tive—discrimination; thus, Copeland had to present evidence that
would allow a jury to find that “the decision-makers were aware of
the protected conduct.” Id. (alterations adopted) (internal quota-
tion marks omitted). He failed to do so.
In his deposition, Copeland admitted that he did not know
“who ultimately made the decision” not to hire him “for each of
the positions” within GDOC that he sought. Doc. 46-3 at 64. And
he admitted that he could only “speculate” as to whether any deci-
sionmaker knew of his protected conduct. Id.; see also Cordoba v.
Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) (observing that,
at the summary judgment stage, “[s]peculation does not create a
genuine issue of fact” (emphasis omitted) (internal quotation marks
omitted)).
It is true—as Copeland argues—that a plaintiff may show a
causal connection through temporal proximity. If a form of pro-
tected activity and subsequent adverse action occur “very close” in
time to one another, a jury may infer that the decisionmaker knew
of the protected activity and that it served as one motivation for
the adverse action, establishing causation. Brown v. Ala. Dep’t of
Transp., 597 F.3d 1160, 1182 (11th Cir. 2010) (internal quotation
marks omitted). But Copeland cannot rely on temporal proximity
because, setting aside his pleadings and briefs, see Celotex, 477 U.S.
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32 Opinion of the Court 22-13073
at 324, he has submitted no evidence of when he actually applied
for and failed to receive the promotions he claims GDOC withheld
as retaliation for his protected activity.
Because Copeland failed to come forward with evidence of
causation, we conclude that he failed to establish a prima facie case
of retaliation and thus affirm the district court’s grant of summary
judgment in favor of GDOC on Count III of the complaint.9
IV. CONCLUSION
We VACATE the district court’s grant of summary judg-
ment on Count I of the complaint and REMAND for the district
court to consider the fifth element of Copeland’s hostile work en-
vironment claim, GDOC’s liability. We otherwise AFFIRM the dis-
trict court’s summary judgment ruling.
VACATED AND REMANDED IN PART, AFFIRMED IN
PART.
9 A plaintiff relying on circumstantial evidence of retaliatory intent also may
survive summary judgment by presenting evidence of a convincing mosaic of
circumstantial evidence that would allow the jury to infer intentional retalia-
tion by the employer. See Berry v. Crestwood Healthcare LP, 84 F.4th 1300, 1311–
12 (11th Cir. 2023). Given that Copeland could not identify the decisionmakers
who decided not to promote him and had no evidence about whether those
decisionmakers knew of his protected conduct, we cannot say that he came
forward with sufficient evidence to survive summary judgment under a con-
vincing-mosaic theory. See Tynes, 88 F.4th at 946.