USCA11 Case: 20-13869 Date Filed: 03/03/2022 Page: 1 of 15
[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13869
____________________
WILLIAM JENKINS,
Plaintiff-Appellant,
versus
KARL NELL,
In his Individual Capacity,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Georgia
D.C. Docket No. 4:19-cv-00002-WTM-BKE
____________________
USCA11 Case: 20-13869 Date Filed: 03/03/2022 Page: 2 of 15
2 Opinion of the Court 20-13869
Before WILSON, LAGOA, Circuit Judges, and MARTINEZ,∗ District
Judge.
WILSON, Circuit Judge:
William Jenkins sued Karl Nell for race discrimination after
Nell terminated Jenkins. Jenkins appeals the district court’s entry
of summary judgment in favor of Nell. The district court found
that Jenkins failed to present a prima facie case of race discrimina-
tion and failed to show that Nell’s reason for Jenkins’s termination
was pretextual. The district court also concluded that Jenkins failed
to present sufficient evidence to establish a convincing mosaic of
discrimination to survive summary judgment. After careful review
and with the benefit of oral argument, we reverse.
I. BACKGROUND
Jenkins, a white male, worked at the Georgia Ports Author-
ity (GPA) as a crane operator. Nell, a black male, was Jenkins’s
supervisor.
The following facts are undisputed. In December 2016, a
crane that Jenkins was operating malfunctioned and caused a
spreader bar (a heavy metal beam used by crane operators to pick
up large objects), to drop on a cargo container. In a statement to
the GPA police, Jenkins reported that “the spreader bar landed hard
∗Honorable Jose E. Martinez, United States District Judge for the Southern
District of Florida, sitting by designation.
USCA11 Case: 20-13869 Date Filed: 03/03/2022 Page: 3 of 15
20-13869 Opinion of the Court 3
on the box,” causing a jolt. Based on Nell’s review of Jenkins’s
statement and video footage of the incident, Nell concluded that
the spreader bar did not make a hard landing. At Nell’s request, his
assistant managers asked Jenkins to remove any reference in his
statement to a hard landing, but Jenkins refused.
In August 2017, Jenkins went to Nell to request weekend
leave. To obtain weekend leave at the GPA, a crane operator must
request the date and then also must “secure a benefit,” which re-
quires burning—i.e., sacrificing—an additional day of vacation
time. Nell denied Jenkins’s request because another crane operator
had already asked for the same time off. However, according to
Jenkins, the other crane operator did not secure a benefit until after
Jenkins requested and offered to secure his requested time by burn-
ing an additional day of vacation.
Jenkins felt as if Nell was mistreating him, but Jenkins feared
Nell would retaliate against him if Jenkins went to Human Re-
sources (HR). According to Jenkins, Nell had a reputation among
the crane operators of being a vindictive and bullying boss. Nell
bragged that he was “close with HR” and that he would know if
operators went to HR before the operators even left the HR office.
Nevertheless, it is undisputed that despite his fears, Jenkins made
an appointment for the following day with an HR employee who
he trusted. Another HR employee emailed Nell to ask if there was
anything HR needed to know about for Jenkins’s meeting with HR.
Both parties agree that the following evening—the day after
Jenkins made his appointment with HR but before he met with
USCA11 Case: 20-13869 Date Filed: 03/03/2022 Page: 4 of 15
4 Opinion of the Court 20-13869
HR—Nell asked to meet with Jenkins before the start of the even-
ing shift. Each party provides a different account as to why the
meeting took place and what occurred during the meeting. Ac-
cording to Nell, he called the meeting because he thought that Jen-
kins was upset about the denial of his weekend leave request. Jen-
kins disputes Nell’s assertion and contends that Nell confronted
him because he went to HR earlier that day. Both Jenkins and Nell
agree that Nell warned Jenkins to have his facts straight before
meeting with HR. Nell then started discussing Jenkins’s request for
weekend leave, and Jenkins disagreed with how Nell handled it,
especially because the other crane operator had not secured a ben-
efit like Jenkins had.
The parties dispute what happened next. According to Jen-
kins, Nell became visibly upset and angry with wide eyes and quiv-
ering lips. Nell then stepped towards Jenkins, and Jenkins told Nell
to get out of his face and that he would not be intimated by Nell.
According to Nell, Jenkins did tell him to get out of his face and
stated that he was at least two feet away from Jenkins.
The following facts are undisputed. When Jenkins pro-
ceeded to walk out of the meeting, Nell told Jenkins to go home
and then told his assistant managers to take Jenkins off the sched-
ule. After telling Jenkins to meet at HR in the morning, Nell left
the facility. Nell emailed HR that night and stated that Jenkins was
yelling, being disrespectful, and was aggressive.
Each party provides a different characterization as to Jen-
kins’s behavior after Nell told Jenkins to go home. According to
USCA11 Case: 20-13869 Date Filed: 03/03/2022 Page: 5 of 15
20-13869 Opinion of the Court 5
Nell, when he told Jenkins to go home, Jenkins replied to Nell twice
that he was not going home and then proceeded to the breakroom
where he told fellow employees that he was being sent home for
going to HR and that Nell’s conduct was “the kind of thing that is
poisoning the department.” After leaving the breakroom, Jenkins
went outside and spoke with other crane operators and told them
that he was being sent home. According to Jenkins, he went to
multiple different people to figure out if he was required to clock
out before leaving. It is undisputed that Jenkins ultimately left the
port and did not work that night.
Jenkins says that when he reported to HR the next morning,
he learned that his appointment was canceled, the incident with
Nell from the previous night was under review, and he was placed
on administrative leave. It is undisputed that HR investigated and
interviewed employees who were present on the day of the inci-
dent. Jenkins was not given an opportunity to present his side of
the story to HR. Additionally, Jenkins believes that during the in-
vestigation into the incident, HR mischaracterized and exaggerated
his behavior during and after the incident with Nell. HR drafted
memoranda to support Nell’s version of events that Jenkins was
yelling and engaging in aggressive conduct.
Ultimately, HR fired Jenkins for violating Rule A-6 of GPA’s
Code of Conduct, but Jenkins argues that ground is pretext for
Nell’s true discriminatory reasons. Rule A-6 provides grounds for
termination if an employee fails to carry out a reasonable direct or-
der of a supervisor, engages in insubordinate behavior towards a
USCA11 Case: 20-13869 Date Filed: 03/03/2022 Page: 6 of 15
6 Opinion of the Court 20-13869
supervisor, or demonstrates gross disrespect for supervisor, includ-
ing verbally or physically threatening a supervisor. Jenkins re-
quested review of his termination, but HR upheld the decision to
terminate him.
According to Jenkins, Nell mistreated the white crane oper-
ators (including how Nell terminated Jenkins) because he consid-
ered them to be his racist enemies. Although Nell did not make
racially-biased remarks around Jenkins’s termination, two black
former GPA employees stated that Nell previously made com-
ments that he believed the white crane operators to be racist and
unwilling to work for a black man. One former employee testified
that Nell specifically referred to Jenkins and another former crane
manager as racists. Both former employees testified that Nell
called social meetings of past and present crane operators, the ma-
jority of whom were white, as “Klan meetings.” Nell disputes these
accusations and attempts to discredit the former employees’ testi-
mony as retaliation for Nell’s involvement in their termination.
In January 2019, Jenkins filed suit in the Southern District of
Georgia and alleged that Nell discriminated against him based on
race in violation of
42 U.S.C. §§ 1981, 1983. 1 Nell moved for sum-
mary judgment because Jenkins failed to provide a proper compar-
ator to establish a prima facie case of race discrimination. In
1Jenkins also asserted two other claims against Nell. But because Jenkins did
not oppose Nell’s motion for summary judgment on those claims, the district
court granted summary judgment on these two claims in a footnote.
USCA11 Case: 20-13869 Date Filed: 03/03/2022 Page: 7 of 15
20-13869 Opinion of the Court 7
opposition, Jenkins argued that he established a prime facie case of
race discrimination and showed that Nell’s proffered reason for fir-
ing him was pretextual. Jenkins also argued that he presented a
convincing mosaic of circumstantial evidence to survive summary
judgment.
The district court granted summary judgment to Nell, find-
ing that Jenkins failed to present a prima facie case of race discrim-
ination under either the McDonnell Douglas or convincing mosaic
frameworks. First, the district court determined that Jenkins failed
to present a prima facie case of race discrimination under the
McDonnell Douglas framework.2 Specifically, the district court
found that Jenkins did not provide proper comparators who were
similarly situated in all material aspects to Jenkins. Second, despite
finding that Jenkins did not provide a proper comparator, the dis-
trict court continued to the next steps in the McDonnell Douglas
framework. Then, the district court found that Nell provided a le-
gitimate, non-discriminatory reason—insubordination—for Jen-
kins’s termination and that Jenkins did not meet his burden to show
Nell’s proffered reason was pretextual. Last, the district court de-
termined that Jenkins failed to present sufficient circumstantial ev-
idence to establish a convincing mosaic of Nell’s intentional dis-
crimination as required to survive summary judgment. Jenkins
timely appealed.
2 McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802–03 (1973).
USCA11 Case: 20-13869 Date Filed: 03/03/2022 Page: 8 of 15
8 Opinion of the Court 20-13869
II. STANDARD OF REVIEW
This court reviews de novo the district court’s grant of sum-
mary judgment, “viewing all evidence and drawing all reasonable
factual inferences in favor of the nonmoving party.” Lewis v. City
of Union City,
934 F.3d 1169, 1179 (11th Cir. 2019) (Lewis II). Sum-
mary judgment is appropriate “if the movant shows that there is
no genuine dispute as to any material fact and the movant is enti-
tled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
III. ANALYSIS
Jenkins alleged that Nell discriminated against him based on
race in violation of
42 U.S.C. § 1981. “Section 1981 prohibits inten-
tional race discrimination in the making and enforcement of public
and private contracts, including employment contracts.” Ferrill v.
Parker Group, Inc.,
168 F.3d 468, 472 (11th Cir. 1999);
42 U.S.C. §
1981. “The elements of a claim of race discrimination under
42
U.S.C. § 1981 are also the same as a Title VII disparate treatment
claim in the employment context.” Rice-Lamar v. City of Ft.
Lauderdale,
232 F.3d 836, 843 n.11 (11th Cir. 2000).
A plaintiff may use either direct evidence or circumstantial
evidence to show race discrimination. See Wilson v. B/E Aero-
space, Inc.,
376 F.3d 1079, 1086–87 (11th Cir. 2004), abrogated on
other grounds by Lewis v. City of Union City,
918 F.3d 1213, 1218
(11th Cir. 2019) (en banc) (Lewis I). If the plaintiff uses circumstan-
tial evidence to support his discrimination claim, we generally
USCA11 Case: 20-13869 Date Filed: 03/03/2022 Page: 9 of 15
20-13869 Opinion of the Court 9
apply the McDonnell Douglas burden-shifting framework. Brown
v. Ala. Dep’t of Transp.,
597 F.3d 1160, 1174, 1181 (11th Cir. 2010).
Here, because Jenkins uses circumstantial evidence to sup-
port his race discrimination claim, he argues that he establishes a
claim for race discrimination under the McDonnell Douglas frame-
work. Specifically, Jenkins argues that he presented a prima facie
case of race discrimination and showed that Nell’s proffered reason
for Jenkins’s termination was pretextual. Alternatively, Jenkins ar-
gues that he presented sufficient evidence to establish a convincing
mosaic of discrimination to survive summary judgment. We will
address each theory in turn.
a. McDonnell Douglas Framework
Jenkins argues that the district court erred in finding that he
failed to establish a prima facie case of race discrimination under
the McDonnell Douglas framework.
Under the McDonnell Douglas framework, the plaintiff
bears the burden of establishing a prima facie case of race discrimi-
nation by demonstrating that: (1) he belongs to a protected class;
(2) he suffered an adverse employment action; (3) he was qualified
to perform the job in question; and (4) his employer treated “simi-
larly situated” employees outside his class more favorably. Lewis
I, 918 F.3d at 1220–21. To establish the fourth prong, the plaintiff
must present evidence of a comparator—someone who is “simi-
larly situated in all material respects.” Id. at 1224. Although what
constitutes a “material” similarity or difference will differ from case
USCA11 Case: 20-13869 Date Filed: 03/03/2022 Page: 10 of 15
10 Opinion of the Court 20-13869
to case, ordinarily a similarly situated comparator and the plaintiff
will: have engaged in the same basic conduct or misconduct, be
subject to the same employment policies, have the same supervi-
sor(s), and share an employment or disciplinary history. Id. at
1227–28.
The district court concluded that Jenkins satisfied the first
three prongs for a prima facie case of race discrimination but failed
to identify a comparator outside of his class who was treated more
favorably.
Jenkins argues that he provided sufficient evidence of three
valid comparators: Randy Jones, Brian Jackson, and Michael
Saussy, all black crane operators. It is undisputed that all three pro-
posed comparators are crane operators, have Nell as their supervi-
sor, and are subject to GPA’s Code of Conduct. Thus, the question
of whether Jenkins provided proper comparators turns on whether
the three identified comparators committed the same or substan-
tially similar misconduct.
First, Jenkins argues that Jones threatened Nell, which vio-
lates Rule A-6 of GPA’s Code of Conduct. Despite Jones threaten-
ing Nell, Nell did not fire Jones. Second, Jenkins argues that Jack-
son lied to HR. Although Jackson’s conduct did not violate Rule
A-6, Jenkins argues that the critical issue is that Jackson went to HR
without retribution from Nell (unlike Jenkins) and still has a job.
Last, Jenkins argues that Saussy, who made false statements to the
GPA police and his supervisors about an investigation into a job
site accident, still has a job at GPA.
USCA11 Case: 20-13869 Date Filed: 03/03/2022 Page: 11 of 15
20-13869 Opinion of the Court 11
Jackson and Saussy are not proper comparators because
there is no evidence that they engaged in similar misconduct as Jen-
kins. Jenkins was terminated for failing to follow a supervisor’s or-
der in violation of Rule A-6 of the GPA’s Code of Conduct. Neither
Jackson nor Saussy engaged in similar insubordination or failed to
follow direct orders.
Jones is not a proper comparator because the circumstances
surrounding his misconduct were not the same or substantially
similar as Jenkins. Jones made a comment during a meeting that if
he saw Nell outside of the port that he would “whoop [Nell’s] ass.”
Neither party disputes that threatening a supervisor is a Rule A-6
violation. But Jones testified that he made the comment in a joking
manner, and, when directed by a supervisor to address his behav-
ior, he apologized and took accountability for his actions. Jones
also testified that Nell wanted to fire Jones for the trash talk, but
Nell’s boss directed Jones to apologize and kept Nell from firing
Jones. After reviewing the facts surrounding Jones’s Rule A-6 vio-
lation, there are substantial differences between what happened
with Jones and Jenkins. Thus, Jones is not a proper comparator.
Accordingly, Jenkins failed to provide a proper comparator
and did not establish a prime facie case of race discrimination.
Thus, the district court properly found that Jenkins failed to show
that Nell engaged in race discrimination under the McDonnell
Douglas framework.
USCA11 Case: 20-13869 Date Filed: 03/03/2022 Page: 12 of 15
12 Opinion of the Court 20-13869
b. Convincing Mosaic Framework
Aside from the McDonnell Douglas framework, an em-
ployee can still survive summary judgment by presenting “circum-
stantial evidence that creates a triable issue concerning the em-
ployer’s discriminatory intent.” Smith v. Lockheed-Martin Corp.,
644 F.3d 1321, 1328 (11th Cir. 2011). “A triable issue of fact exists
if the record, viewed in a light most favorable to the plaintiff, pre-
sents a convincing mosaic of circumstantial evidence that would
allow a jury to infer intentional discrimination by the deci-
sionmaker.”
Id. (internal quotation marks omitted). A plaintiff
may establish a convincing mosaic by pointing to evidence that
demonstrates, among other things, (1) suspicious timing, ambigu-
ous statements, or other information from which discriminatory
intent may be inferred, (2) “systematically better treatment of sim-
ilarly situated employees,” and (3) pretext. Lewis II, 934 F.3d at
1185.
Jenkins argues that even if he did not meet his burden under
the McDonnell Douglas framework, he presented sufficient evi-
dence to establish a convincing mosaic of discrimination to survive
summary judgment. Specifically, Jenkins argues his mosaic in-
cludes circumstantial evidence that: (1) Jones committed a Rule A-
6 violation (like Jenkins) but remained employed; (2) no less than
18 white crane operators retired, resigned, or transferred from the
department since Nell took over; (3) evidence that Nell mistreated
three white crane operators; (4) Nell’s relationship with HR; (5)
Nell’s racially-biased comments about white crane operators; (6)
USCA11 Case: 20-13869 Date Filed: 03/03/2022 Page: 13 of 15
20-13869 Opinion of the Court 13
Jenkins declining to change his accident report about a hard land-
ing; and (7) Nell’s shifting reasons for terminating Jenkins.
Considering all the evidence, Jenkins provides a convincing
mosaic of discrimination, sufficient to survive summary judgment
at this stage. Jenkins has met his burden of showing factual dis-
putes that should be decided by a jury—a jury whose role it is to
weigh conflicting evidence and make any necessary credibility de-
terminations. Strickland v. Norfolk S. Ry. Co.,
692 F.3d 1151, 1154
(11th Cir. 2012).
Although Jones was not a strict comparator, the evidence
that he threatened his supervisor, a Rule A-6 violation, and did not
incur any additional warnings or discussion about his comments is
relevant. See Lewis II, 934 F.3d at 1187–88. Nell testified that he
does not recall the incident, but Jones’s testimony indicates Nell
heard the threat. There is a genuine dispute of fact regarding this
incident: what Nell heard and how he reacted.
Jenkins’s mosaic of circumstantial evidence revolves around
credibility findings of not only Nell but other employees who were
deposed or provided affidavits in this case. Specifically, the testi-
mony of white crane operators about incidents that caused them
to leave the department since Nell took over cuts against Nell’s ar-
guments about why the operators left. Although “statistics alone
cannot make a case of individual disparate treatment,” there are
factual discrepancies between the white crane operator’s testimony
of why they left the department and Nell’s explanation for why
they left. Carter v. Three Springs Residential Treatment, 132 F.3d
USCA11 Case: 20-13869 Date Filed: 03/03/2022 Page: 14 of 15
14 Opinion of the Court 20-13869
635, 642 n.5 (11th Cir. 1998). “Where a fact-finder is required to
weigh a deponent’s credibility, summary judgment is simply im-
proper.” Strickland, 692 F.3d at 1162.
Next, Nell’s racially-biased comments can be circumstantial
evidence to support an “inference of discrimination” even if the
comments were not made close to the termination decision and
were too remote in time or too attenuated to constitute direct evi-
dence of discrimination. See Ross v. Rhodes Furniture, Inc.,
146
F.3d 1286, 1291 (11th Cir. 1998). Nell vigorously attempts to dis-
credit the testimony of two black former GPA employees about
Nell’s comments in referring to white crane operators, including
Jenkins, as racists, and social meetings of white crane operators as
“Klan meetings.” Whether those comments allow an inference of
discrimination turns on whether the jury believes Nell or two for-
mer employees. See Strickland, 692 F.3d at 1162.
When a plaintiff who alleges a racial discrimination claim
under Section 1981 or Title VII presents factual and credibility dis-
putes which require a jury to resolve and “would allow a jury to
infer intentional discrimination,” summary judgment is improper.
Smith,
644 F.3d at 1328.
IV. CONCLUSION
Even though Jenkins failed to show race discrimination un-
der the McDonnell Douglas framework, he presented sufficient ev-
idence to meet the convincing mosaic of discrimination standard at
the summary judgment stage. Therefore, the district court erred
USCA11 Case: 20-13869 Date Filed: 03/03/2022 Page: 15 of 15
20-13869 Opinion of the Court 15
in granting Nell’s motion for summary judgment. Thus, the dis-
trict court’s decision is reversed, and the case is remanded for fur-
ther consideration consistent with this opinion.
REVERSED AND REMANDED.
