Anne Guthrie v. Coal Bed Services Inc.

majority opinion

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FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

No. 24-10572

DEMARKUS HALL,

Plaintiﬀ,

ANNE GUTHRIE,

Administrator for the estate of DeMarkus Hall,

EDDIE HUGHES,

Plaintiﬀs-Appellants,

versus

COAL BED SERVICES INC.,

PATE HOLDINGS INC.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Alabama

D.C. Docket No. 7:22-cv-00513-LSC

Before NEWSOM, BRASHER, and ED CARNES, Circuit Judges.

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ED CARNES, Circuit Judge:

DeMarkus Hall and Eddie Hughes, who are Black, worked

for Coal Bed Services, Inc. They complained to one of their work

supervisors that another supervisor had discriminated against

them based on race. Several weeks later, the supervisor they had

complained to ﬁred Hall and Hughes after they refused to take a

drug test on a jobsite. Brandon Ramsey, a White coworker, also refused to take that drug test; he walked oﬀ the jobsite, realizing that

he was being terminated.

Soon thereafter, the company let Ramsey come back to

work but wouldn’t let Hall and Hughes. And even though all three

employees had worked only four hours the day they refused to take

the drug test, the company paid Ramsey for a full shift but paid Hall

and Hughes for only four hours. The next two workers the company hired for Hall’s and Hughes’ positions were White men, one

of whom it had previously ﬁred for failing a drug test.

Hall and Hughes claim that the company’s ﬁring them for

their refusal to take a drug test was a pretext for unlawful discrimination and for retaliation. They asserted those claims under Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), id. §

2000e-3(a), against their former employer Coal Bed Services Inc.,

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and under 42 U.S.C. § 1981 against Coal Bed Services and its parent

company Pate Holdings, Inc.1

The district court granted summary judgment in favor of

the defendant companies. We believe there is a genuine issue of

material fact as to whether the companies discriminated against

Hall and Hughes based on their race and retaliated against them

for protected conduct. We reverse the district court’s grant of summary judgment and remand for further proceedings.

A. Factual Background

DeMarkus Hall 2 and Eddie Hughes worked as laborer-operators for Coal Bed Services, a subsidiary of Pate Holdings, from

September 2020 until Coal Bed Services terminated their

1 Coal Bed Services has only one shareholder, which is Pate Holdings. And

Pate Holdings has only one shareholder, Luther Stan Pate, IV (Stan Pate). Stan

Pate testified as the Rule 30(b)(6) representative on behalf of both companies.

See Fed. R. Civ. P. 30(b)(6).

Coal Bed Services, which was Hall and Hughes’ employer, is a defendant as to

the Title VII and § 1981 claims, while Pate Holdings is a defendant only as to

the § 1981 claims. But in their brief to this Court, the two companies have not

distinguished themselves from each other in regard to the § 1981 claims. And

we will at times refer to them collectively as “the companies.”

After the events involved in this case occurred, Hall died. Anne Guthrie, the

administratrix of his estate, has been substituted as a party. To simplify things,

in referring to arguments, contentions, and positions we will still refer to Hall

as though he were the party in this case.

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employment in February 2021. 3 As laborer-operators, Hall and

Hughes worked alongside other laborers and equipment operators,

and their job duties included various construction and property

maintenance tasks. Most of their coworkers at Coal Bed Services

were White, including their direct supervisor, Willie Williams.

Brandon Ramsey, a White coworker of Hall and Hughes,

also worked on a crew primarily supervised by Willie Williams, and

he worked at the same jobsites as Hall and Hughes on most days.

Ramsey began working for Coal Bed Services in 2018. Before 2018

he had worked in similar construction positions.

In their depositions Hall and Hughes testiﬁed that Coal Bed

Services treated them diﬀerently from their White coworkers.

They testiﬁed that their supervisors gave them “dirtier” and more

diﬃcult jobs than their White coworkers. And, according to Hall

and Hughes, the company did not give them the same opportunities for development and advancement that it gave their White

coworkers.4

We view the facts at summary judgment in favor of the nonmovants, here

Hall and Hughes. See Cottrell v. Caldwell, 85 F.3d 1480, 1486 (11th Cir. 1996).

“[W]hat is considered to be the ‘facts’ at the summary judgment stage may

not turn out to be the actual facts if the case goes to trial, but those are the

facts at this stage of the proceeding for summary judgment purposes.” Id.

On at least one occasion someone at Coal Bed Services did give Hall an opportunity to learn how to operate heavy machinery. He took advantage of

that opportunity but unfortunately crashed the heavy machine into a company truck.

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Hall and Hughes also testiﬁed that other supervisors, including James Toxey, referred to them as “y’all” and “them,” instead of

using their names, while the same supervisors referred to all the

White employees by their names. The pair also took oﬀense to

Toxey’s tone when he once asked them to wash his truck during

work hours, which was not part of their job duties.

Hall and Hughes further testiﬁed that in January 2021, they

had what they describe as a verbal altercation with supervisor

Toxey, which they think was racially motivated on his part. Hughes

remembered Toxey belittling them before the altercation began:

“[Toxey] was talking crazy. Basically like, the boy stuﬀ, like talking

to us like we [were] beneath him. Stuﬀ like that.” Hall believes

that racism motivated Toxey’s comments. He testiﬁed that when

he confronted Toxey about his behavior, Toxey brushed it oﬀ with

the comment: “I’ve got more black friends than y’all.”

Supervisor Williams intervened and ended that verbal confrontation. Hall and Hughes told him that Toxey was racist and

was treating them diﬀerently than he treated other employees.

Williams did not ask them for additional information about the incident or why they thought Toxey was racist. Nor did Williams

discuss the incident or complaint with anyone other than Toxey

himself, who denied that he was racist. Believing the disagreement

was due to conﬂicting personalities, Williams took steps to separate

the pair and Toxey from that point on.

Then came the incident that resulted in the end of Hall’s and

Hughes’ employment. Williams testiﬁed that on February 19,

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2021, an employee reported to him that he had seen Hall and

Hughes smoking marijuana on the job. In response to that report,

Williams rounded up Hall, Hughes, and the rest of their team and

told them all that they had to take a drug test. (Before that testimony was given, Coal Bed Services took a diﬀerent position in its

Equal Employment position statement, representing that the drug

test was random and not referring to any report that Hall and

Hughes had been seen using drugs at work.

Williams told the employees that if they failed the drug test

or refused to take it, they would be terminated. One White

worker, Ramsey, refused to take the test and walked oﬀ the jobsite,

eﬀectively accepting his termination. Hall and Hughes also refused

to take the test and understood they were eﬀectively terminated;

they, too, left the jobsite.

Hall and Hughes deny that they ever smoked marijuana on

the job. There are no written reports to corroborate Williams’

statements that another worker had told him that he had seen Hall

and Hughes smoking marijuana that day. Unlike occasions where

an employee had been terminated for failing a drug test, Williams

didn’t document Hall and Hughes’ reported drug use or their ensuing refusals to undergo drug testing.

A few hours after he had walked oﬀ the job site, Ramsey (the

White coworker who had refused to take the drug test) had a

change of heart. He contacted Williams and asked whether there

was anything he could do to “keep from losing [his] job.” Williams

said he would speak with the executives of Coal Bed Services, Stan

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Pate and Alan Davis, about it. Ramsey was at home for several

hours before someone at Coal Bed Services called him and told him

to come back to the main oﬃce, where Davis would meet with him

to discuss whether he could have his job back.

During their meeting, Davis oﬀered Ramsey his job back on

the condition he would submit to random drug tests in the future.

Ramsey agreed to do so. According to him, nobody placed any

other conditions on his ability to return to work. He returned to

work the next workday and was not subjected to any restrictions.

He was not required to pass a drug test before returning to work;

the ﬁrst one he took after returning to work was at least several

weeks later.

Hall and Hughes heard about Ramsey’s deal and wanted the

same treatment. They individually began reaching out to Williams

and other members of Coal Bed Services’ management team, seeking reemployment.

Hall called Williams the day after losing his job and contacted him several more times in February and March 2021. He

asked Williams for his job back. Williams was non-committal. Williams was “very short” on the phone and indicated that he would

call Hall back, but he never did.

Hall also testiﬁed about calling company owner Pate and

asking if he could come back to work. Pate, like Williams, told

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Hall he would call him back. But, like Williams, Pate never did.

And Pate didn’t respond to a follow-up call from Hall either. 5

Hughes also tried to get his job back. He testiﬁed that he

texted Williams but received no response. Hughes also spoke with

another supervisor on the phone and conveyed that he was willing

to submit to the same conditions under which Ramsey had been

rehired. The other supervisor said he would call Hughes back, but

like all the others, he never did.

Despite Hall, Hughes, and Ramsey all working the same

number of hours the day they refused the drug tests, Coal Bed Services compensated them diﬀerently for that partial day’s work. The

company paid Hall and Hughes for only the four hours of work

they completed before they refused to take the drug tests and left

the jobsite. Ramsey, on the other hand, was paid for a full shift of

work — even though he, like Hall and Hughes, had worked only

four hours before walking oﬀ the jobsite.

In March 2021, several weeks after ﬁring Hall and Hughes,

Coal Bed Services rehired Michael Morris, a White laborer the

Pate remembers these events differently. According to Pate, he had an inperson conversation with Hall at the main office of Coal Bed Services, during

which Pate “begged” Hall to stop using drugs so that he could return to work,

but Hall refused. Hall disputes that, testifying that he never had an in-person

conversation with Pate, never refused to stop smoking marijuana, and never

received a reemployment offer. (Coal Bed Services’ Equal Employment position statement didn’t refer to any in-person conversations between Hall and

Pate.) Given the procedural posture of the case, we take Hall’s testimony as

true. See supra at 4 n.3.

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company had ﬁred eight months earlier for failing a drug test. The

company made him take a drug test before he started working

again, but he was not drug tested any more after that. The next

laborer hired after Morris was also White.

B. Procedural History

Hall and Hughes sued Coal Bed Services under Title VII,

and they sued both Coal Bed Services and Pate Holdings under 42

U.S.C. § 1981, alleging that the companies had discriminated

against them because of their race and retaliated against them because of their complaints of racial discrimination. Their jointly

ﬁled complaint alleged four causes of action against the two companies. Hall and Hughes alleged that Coal Bed Services violated

Title VII by (1) discriminating against them based on their race and

(2) retaliating against them because of their complaints of racial

discrimination. And they alleged that both companies violated §

1981 by (3) discriminating against them based on their race and (4)

retaliating against them because of their complaints of racial discrimination.

After discovery closed, the district court granted the companies’ joint motion for summary judgment on all four of the claims.

II.

We review de novo the grant of summary judgment. Sierra

Club v. Tenn. Valley Auth., 430 F.3d 1337, 1345–46 (11th Cir. 2005).

Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a).

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III.

Hall and Hughes claim that Coal Bed Services violated Title

VII and that Coal Bed Services and Pate Holdings violated 42 U.S.C.

§ 1981 by discriminating against them because of their race. They

also claim that Coal Bed Services violated Title VII and that both

companies violated 42 U.S.C. § 1981 by retaliating against them for

their complaints of racial discrimination.

A. The Discrimination Claims

We ﬁrst discuss the Title VII discrimination claim against

Coal Bed Services, and then we will turn to the § 1981 discrimination claim against both companies.

1. The Title VII Discrimination Claim

Title VII prohibits employment discrimination “because of

[an] individual’s race.” 42 U.S.C. § 2000e-2(a)(1). To defeat his employer’s motion for summary judgment on a Title VII discrimination claim, a plaintiﬀ may use the McDonnell Douglas framework or

the convincing mosaic approach, which we have characterized as

“two paths to the same destination—the ordinary summary judgment standard.” McCreight v. AuburnBank, 117 F.4th 1322, 1335 (11th

Cir. 2024). Whichever path is used, the destination is the same: an

answer to whether the evidence is suﬃcient for a reasonable jury

to infer illegal discrimination. Id.

Some examples of evidence a plaintiﬀ may use to construct

a convincing mosaic of discrimination include: “(1) suspicious timing, ambiguous statements, and other bits and pieces from which

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an inference of discriminatory intent might be drawn; (2) systematically better treatment of similarly-situated employees; and (3) [a

showing] that the employer’s justiﬁcation is pretextual.” Poer v. Jefferson Cnty. Comm’n, 100 F.4th 1325, 1337 (11th Cir. 2024) (quotation

marks omitted and alterations adopted).

As a reminder, we view the evidence in the light most favorable to Hall and Hughes, making reasonable inferences in their favor as well. See Phillips v. Legacy Cabinets, 87 F.4th 1313, 1320 (11th

Cir. 2023). Doing that, this is the convincing mosaic of evidence

showing intentional racial discrimination: (a) White co-worker

Ramsey, who lost his job the same day Hall and Hughes did for the

same conduct, asked to be rehired and was given his job back the

next work day, while they were stonewalled in their repeated attempts to get their jobs back under the same conditions as Ramsey;

(b) all three men worked a half shift the day they lost their jobs, but

the company paid Ramsey as though he had worked a full shift,

while it paid Hall and Hughes for only four hours of work; (c) the

company replaced Hall and Hughes with two White laborers, one

of whom had been ﬁred by the company less than a year earlier for

failing a drug test; (d) the company told the EEOC that the drug

test that led to the terminations was random, but Williams later

insisted in his deposition that the test had been administered because an employee reported that he had seen Hall and Hughes

smoking marijuana on the job; (e) the company did not give Hall

and Hughes the same opportunities to improve their skills and advance that it gave White employees at the same level, and it gave

Hall and Hughes the dirtiest jobs among the laborers; and (f ) one

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of their supervisors, Toxey, never referred to Hall and Hughes by

name, calling them “y’all” and “them,” while always referring to

White employees by name, and he once belittled them by calling

them “boys” and telling them that he had “more black friends than”

they did.

Taking that mosaic of evidence and drawing from it reasonable inferences in favor of Hall and Hughes, it is convincing enough

that a jury reasonably could ﬁnd that Coal Bed Services racially discriminated against them when it terminated them from their employment and did not consider them for reemployment on the

same terms as it did their co-employee Ramsey.

Coal Bed Services protests that for Hall and Hughes to get

past summary judgment there must be “actual evidence of a racial

motive,” apparently meaning direct evidence of it. But the convincing mosaic approach requires a convincing mosaic of evidence,

not a convincing mosaic including some direct evidence of race discrimination. See Tynes v. Fla. Dep’t of Juv. Just., 88 F.4th 939, 946

(11th Cir. 2023) (explaining that “[a] ‘convincing mosaic’ of circumstantial evidence is simply enough evidence for a reasonable factﬁnder to infer intentional discrimination in an employment action—the ultimate inquiry in a discrimination lawsuit”) (emphasis

added). To put it somewhat diﬀerently, evidence is evidence; circumstantial evidence is “actual” evidence. See id. at 946 n.2 (“A

plaintiﬀ proving her case through the convincing mosaic standard

may point to any relevant and admissible evidence.”). Just as circumstantial evidence can be suﬃcient to convict an accused of a

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crime, it can be suﬃcient for a jury to ﬁnd that an employer discriminated against an employee. And in this case it is suﬃcient.

Coal Bed Services also argues that we shouldn’t count, or at

least shouldn’t count for much, the more favorable treatment given

Ramsey because he is, the company asserts and the district court

found, not a valid comparator under the McDonnell Douglas framework. The court found he wasn’t a close enough comparator under McDonnell Douglas because he was not similarly situated in all

material respects. Although they were all three subject to the same

policies and had the same supervisor, Ramsey had more construction experience, had been working for the company longer, and

had a diﬀerent title and diﬀerent tasks than Hall and Hughes did.

Hall and Hughes’ daily work consisted of “shoveling mud out of

holes, cleaning up buildings, tearing down buildings, leveling

ground, and other manual labor as needed.” Ramsey, by contrast,

was a heavy equipment operator. Some of his work involved “operating heavy machinery including excavators, bulldozers, compactors, dump trucks, and rock trucks.” We will assume, without

deciding, that because of the diﬀerence in length of service and nature of tasks performed, Ramsey was not a valid comparator for

McDonnell Douglas purposes.

That Ramsey isn’t a valid comparator for McDonnell Douglas

purposes doesn’t matter; it doesn’t because this is a convincing mosaic analysis. See McCreight, 117 F.4th at 1335 (explaining that “employees with signiﬁcant evidence of illegal discrimination who lack

the comparator evidence [that is] often required to set out a case

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under McDonnell Douglas” can use the convincing mosaic approach

instead). 6 And the strikingly diﬀerent treatment of Ramsey is

highly signiﬁcant because he engaged in the same misconduct on

the same day at the same time as Hall and Hughes. And like Hall

and Hughes, he was terminated for it. And like Hall and Hughes,

he wanted to get his job back after he was terminated. But unlike

Hall and Hughes, he was rehired immediately while Hall and

Hughes struggled unsuccessfully to get anyone at the company to

even talk to them about such a possibility.

The mosaic of evidence in this case, enhanced by the reasonable inferences due a nonmovant, is convincing enough to put the

question of intentional racial discrimination to a jury. A jury,

6 Coal Bed Services’ assertion that an employee reported having seen Hall and

Hughes smoking marijuana on the job but no one had reported seeing Ramsey

doing that doesn’t matter for present purposes. As we’ve noted, at this stage

we have to view the evidence in the light most favorable to nonmovants Hall

and Hughes and draw all reasonable inferences in their favor. The company

told the EEOC that Hall and Hughes were fired for refusing a drug test. It said

nothing to the EEOC about anyone reporting that either or both of them had

been seen smoking marijuana on the job. It was not until discovery, through

Williams’ deposition, that it was asserted that the drug test was administered

because an employee had reported seeing Hall and Hughes smoking marijuana on the jobsite. That conflict in Coal Bed Services’ story line poses two

possible inferences: either it was not telling the whole truth in its letter to the

EEOC, or it was not being truthful when it remodeled its story during litigation. For present purposes, we are required to infer that Coal Bed Services told

the truth sooner instead of later, and that there was no report that Hall and

Hughes had been smoking marijuana on the job.

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considering the evidence in the light most favorable to Hall and

Hughes and drawing all reasonable inferences in their favor could

reasonably ﬁnd that the reason they were treated worse than Ramsey is their race.

2. The § 1981 Discrimination Claims

Hall and Hughes also asserted discrimination claims against

Coal Bed Services and Pate Holdings under 42 U.S.C. § 1981. That

section provides that “[a]ll persons within the jurisdiction of the

United States shall have the same right . . . to make and enforce

contracts . . . as is enjoyed by white citizens.” 42 U.S.C. § 1981. A

plaintiﬀ asserting an action under § 1981 must prove that discrimination was a but-for cause of the loss of his employment contract.

See Comcast Corp. v. Nat’l Assoc. of Afr.-Am. Owned Media, 589 U.S.

327, 340–41 (2020); see also Phillips, 87 F.4th at 1321 & n.5. That’s

the same standard we just applied to Hall and Hughes’ single-motive Title VII discrimination claim. See Phillips, 87 F.4th at 1321 n.5.

For the same reasons as discussed in Part III.A.1, supra, Hall

and Hughes have shown that a genuine issue of material fact precludes summary judgment against them on their § 1981 claims that

racial discrimination caused their loss of employment. Cf. Jenkins

v. Nell, 26 F.4th 1243, 1249 (11th Cir. 2022).

B. The Retaliation Claims

Hall and Hughes also claim that Coal Bed Services violated

Title VII and that Coal Bed Services and Pate Holdings violated 42

U.S.C. § 1981 by retaliating against them for their complaints of racial discrimination. We discuss those claims in turn.

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1. The Title VII Retaliation Claim

Title VII prohibits retaliation against an employee because

he “has opposed any practice made an unlawful employment practice” by Title VII. 42 U.S.C. § 2000e-3(a). An employer may not

retaliate against an employee because the employee complained

about racial discrimination. See id.

Where a retaliation claim is based on circumstantial evidence, as Hall and Hughes’ is, we have “primarily” relied on the

McDonnell Douglas framework when reviewing a summary judgment. Yelling v. St. Vincent’s Health Sys., 82 F.4th 1329, 1337 (11th

Cir. 2023) (quotation marks omitted). 7 Under that burden-shifting

test, Hall and Hughes must ﬁrst show that they (1) engaged in a

statutorily protected activity, (2) experienced an adverse action, and

(3) that their protected conduct caused the adverse action. See id.

The burden then shifts to the employer to “articulate a legitimate,

non-discriminatory reason or reasons for its actions.” Id. (quotation marks omitted). The burden then re-shifts back to the plaintiﬀ

to show that each of the employer’s proﬀered reasons is pretextual.

7 We do not mean to imply that a plaintiff cannot use a convincing mosaic

approach to defeat summary judgment on a Title VII retaliation claim. See

Berry v. Crestwood Healthcare LP, 84 F.4th 1300, 1310 (11th Cir. 2023) (“Without

relying on the McDonnell Douglas framework, an employee may prove retaliation with any circumstantial evidence that creates a reasonable inference of

retaliatory intent.”); id. at 1313 (“To be sure, an employee can prove retaliation without the McDonnell Douglas framework.”); Yelling, 82 F.4th at 1342

(same); see also Berry, 84 F.4th at 1311 (explaining that a plaintiff’s retaliation

claim survives summary judgment when “the evidence permits a reasonable

factfinder to find that the employer retaliated against the employee”).

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See id. At bottom, to succeed against a motion for summary judgment Hall and Hughes were required to present enough evidence

for a reasonable jury to ﬁnd that Coal Bed Services retaliated

against them because of their complaints of racial discrimination.

See id. at 1338–39.

As to the prima facie case component, it is uncontested that

Hall and Hughes complained to Williams that Toxey had discriminated against them because of their race, a statutorily protected

activity. See Yelling, 82 F.4th at 1337. It’s also uncontested that about

one month later Coal Bed Services ﬁred them and then refused to

rehire them, an adverse action. See id.

Coal Bed Services contends that Hall and Hughes’ retaliation claim should fail for at least two reasons: (1) their complaint

of racial discrimination wasn’t objectively reasonable; and (2) they

cannot show causation.

First, Coal Bed Services contends that Hall and Hughes’

complaint of racial discrimination was not “objectively reasonable”

because it was unreasonable as a factual matter for them to think

that Toxey was discriminating against them. The company is correct that we require a plaintiﬀ’s complaint to be “objectively reasonable.” See, e.g., Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1351

(11th Cir. 1999). That doesn’t mean, though, that we require a

plaintiﬀ “to prove that the discriminatory conduct complained of

was actually unlawful.” Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295,

1311 (11th Cir. 2016). Instead, “[t]he conduct opposed need only

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be close enough [to unlawful] to support an objectively reasonable

belief that it is” unlawful. Id. (quotation marks omitted).

Hall and Hughes point to the following as evidence that

their belief that the racial discrimination they suﬀered and complained about was “objectively reasonable”: (a) supervisors, including Toxey, referred to them as “y’all,” and “them,” instead of using

their names, while the same supervisors referred to all the White

employees by their names; (b) Toxey used a demeaning tone one

time when he asked them to wash his truck (which was not part of

their job duties); (c) Hughes remembered Toxey belittling them directly before they complained to Williams about Toxey’s conduct:

“[Toxey] was talking crazy. Basically like, the boy stuﬀ, like talking

to us like we [were] beneath him. Stuﬀ like that.”; and (d) Hall

remembered that when he confronted Toxey about that perceived

racist behavior, Toxey responded: “I’ve got more black friends than

y’all.” Hall and Hughes contend that it was objectively reasonable

for them to think that Toxey treated them diﬀerently because of

their race.

We agree. Hall and Hughes’ complaint of racial discrimination was “objectively reasonable.” See Clover, 176 F.3d at 1351. The

evidence of Toxey’s behavior (viewed in the light most favorable to

Hall and Hughes) is “close enough to support an objectively reasonable belief ” that he was discriminating against them because of

their race. See Furcron, 843 F.3d at 1311 (quotation marks omitted);

Anne Guthrie v. Coal Bed Services Inc.

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