Last week, the Sixth Circuit affirmed an employer ‘s summary judgment on Title VII, Rehabilitation Act and First Amendment discrimination and retaliation claims brought by a professor after the plaintiff’s request to transfer to the main campus was denied. Patterson v. Kent State Univ., No. 24-3940 (6th Cir. Sept 12, 2025). There was no evidence that plaintiff’s gender identity was ever discussed or considered in the decision. The sole stray remark about the plaintiff’s mental stability -- in light of the unprofessional comments being made -- was insufficient upon which to base a disability discrimination claim. The employer had sufficient reason for its actions in light of the plaintiff’s unprofessional and profane attacks on colleagues, and resignation from service. There was also no evidence that the decisionmakers were aware of any protected activities at the time of the decisions. Finally, complaints about colleagues were not mattes of public concern entitled to First Amendment protections. “Complaining about and insulting your coworkers simply doesn’t implicate a matter of public concern.”
According to the Court’s decision, the plaintiff tenured
professor requested to be considered to Chair a dormant Center that had been suspended
pending a reorganization. Although the
position was not open, the Dean agreed to reallocate half of the plaintiff’s
teaching load so that the plaintiff could develop new course material for the
dormant Center if it were to be resurrected. The plaintiff was contacted by the Chair of
the School where the Center would be housed about joining the planning
committee. The plaintiff was unhappy
that the Dean and Chair would be in charge of the Center and began attacking
them – using profanity and derogatory terms about their gender – on social
media and in emails to other colleagues. “So to sum up, Patterson condemned
both Mazzei and Munro-Stasiuk as “transphobe[s]” and “cishet white ladies in
charge, with [no] content expertise,” engaged in “F*ckery,” “shit,” “trans
antagonism,” and “epistemic violence” who were “quite literally killing [me].” After a few weeks of this and plaintiff’s
refusal to meet and discuss the stated concerns, the Dean cancelled the planned
teaching allocation. The plaintiff did
not respond, but cancelled “and instead resigned from university service
commitments.” The Chair issued general
invitations to join the gender studies and Center committees, but the plaintiff
did not respond. Instead, the plaintiff
bullied those who did join the committee through tweets and applied to transfer
to the main campus. The requisite committees
held a joint meeting, discussed the plaintiffs resignation from service,
negative interaction with faculty colleagues and the department’s need and
voted 12-2 against the transfer request.
The Dean requested that they reconvene and vote separately, which they
did. The result was the same and the
plaintiff’s gender identity was never mentioned.
Title VII Discrimination
The Court rejected the plaintiff’s argument that denial of
the transfer request was direct evidence of gender discrimination when there
was no evidence that the plaintiff’s gender identity was ever mentioned or
discussed. Because an inference of
discrimination would be required, the decision could not be direct evidence in
and of itself.
[The plaintiff] also points to the
committees’ discussion of whether the English department needed more faculty
with backgrounds in LGBT studies, claiming that this is direct evidence of
discrimination. That argument conflates a professor’s scholarly discipline with
a professor’s personal traits. . . . .
An Italian person may offer to teach Italian classes, but if a university
doesn’t need more Italian classes, that’s not direct evidence of animus against
Italian people. So there’s no direct evidence of discrimination.
The Court agreed that the denial of the transfer request
could be an adverse employment action under Title VII because it inflicted some
harm. Nonetheless, the employer clearly
had a legitimate and nondiscriminatory reason for its actions in revoking the
teaching reallocation and denying the transfer request:
[The employer] had legitimate,
nondiscriminatory reasons for what it did. [The plaintiff] sent rude and
profanity-laced tweets, emails, and texts insulting [the Dean] and [the Chair],
including disparaging references to their race, sex, and occupations. Those
messages violated university policy against attacking colleagues or their
academic fields. And they easily provided reasonable grounds—having nothing do
to with sex or gender—for disciplining or reprimanding an employee. . . .
[The employer] also had legitimate
reasons to deny the campus tenure-transfer application. The evidence shows that
[the plaintiff’s] lack of collegiality and decision to quit university service
committees played a part. The classes [the plaintiff] wanted to teach also
didn’t fit with the main campus English department’s curriculum and needs at
that time. And the department wanted to preserve its ability to hire a new
tenure-track professor the next year; it worried that a lateral hire from a
regional campus would use up that spot. This is standard stuff for tenure
decisions.
The Court finally concluded that
the plaintiff could not show that these explanations were pretextual – or a
disguise - - for unlawful discrimination. “A plaintiff can establish pretext in several
ways, such as by showing that the defendant’s articulated reasons had no
factual basis, didn’t in fact motivate the action, or could not warrant the
action taken. . . . But there’s no
evidence here to support any of those theories.”
[The employer’s] decisions had
ample basis in fact. The record contains many disparaging tweets, emails, and
texts, which led to a toxic work environment. And that factual basis was more
than enough to warrant some kind of response. [The Dean and the Chair] were
both originally excited to work with [the plaintiff]. They only changed course
after the hostile tweets and texts. The tenure-transfer rejection likewise
bears no indicia of pretext. The same English department had voted to
unanimously to grant [the plaintiff] tenure less than a year before. If the
committee members were biased against transgender people, wouldn’t they have
shown it then? What’s more, after the committees voted “no” on the first
transfer vote, [the Dean] realized that they hadn’t followed the right
procedures. So she had them vote again. If she was biased, why not just leave
the “no” vote at that? Why erase the vote and give [the plaintiff] another
shot? No evidence suggests that [the employer’s] true motivation was animus
against anyone’s sex or gender identity.
Title VII Retaliation
The Court also rejected the Title VII retaliation
claim. It agreed that the plaintiff
could show protected opposition activities:
First, an email to a university
official, Amoaba Gooden, in which [the plaintiff] resigned as a university DEI
representative and complained that [the employer] wasn’t a “safe or welcoming
place for trans faculty.” . . . Second, an email to Professor M’Baye, the
English department chair, in which [the plaintiff] stepped back from service on
a university “DEI Strategic Planning Process.” . . . . Third, an email to Kathy
Davis-Patterson, another faculty member, in which [the plaintiff] reported on
“inequity” and “transphobes” at [the employer]. . . . . Fourth, an email to Deb Smith, who
worked with the faculty union. In this email, [the plaintiff] resigned as a
union representative, citing “inequity and discrimination in the workplace” at [the
employer]. . . .
However, the second email never mentioned any protected
activity or opposition, but instead, cited only health concerns. Therefore, it could not be a protected
activity. In addition, the plaintiff
could not show that the Center position had been filled by anyone, so there was
no adverse action there. Moreover, some
of the protected activities took place after the Dean had revoked the
teaching reallocation. Finally, the
remaining emails were unknown to the Dean and the tenure committees. when the teaching reallocation was
revoked. Therefore, they could not have motivated any
retaliation.
First Amendment
As for the First Amendment claims, the Court found that the
plaintiff’s derogatory tweets did not touch on matters of public concern, but
rather were “complaints about other Kent
State faculty members and their workplace decisions—“employee beef,” plain and
simple,” which are not entitled to First Amendment protection. “The tweets are
insulting, disparaging, and targeted. They use profanities, and they describe [the
Dean and Chair] in terms of their race and sex. Complaining about and insulting
your coworkers simply doesn’t implicate a matter of public concern.”
[The plaintiff] frames the tweets
as publicizing [the employer]s alleged transphobia and exposing discrimination
in the workplace. In fairness, a few tweets do make more general references
that sound less like targeted insults. For example, one tweet states: “Academia
is fundamentally racist, heterosexist, cissexist, ableist, classist &
sexist.” . . . . In isolation, perhaps
that qualifies as protected speech. . .
. . But the tweet is swarmed on either side by other attacks on [the Dean and
Chair]. Indeed, that same tweet’s very next sentence accuses [the Chair] of
“violen[ce].” . . . . A public employee
can’t blend protected speech with “caustic personal attacks against
colleagues,” and then use the protected speech to immunize those attacks. . . .
And even if the tweets did involve
a matter of public concern, they still wouldn’t receive protection. [The
employer’s] interest as an employer in administering effective public services
outweighs Patterson’s interest in this kind of trash talk. . ..
There’s a way to raise awareness of
discrimination without engaging in profanity-laced and race- and sex-based
aspersions against colleagues. The tweets created serious strife within the [the
employer] community, causing [the Dean and Chair] to feel harassed and
insulted. And it led to a dysfunctional work environment for several months. [The
Chair] had to text [the Dean], for example: “I’m really thinking continuing
[having [the plaintiff] involved] is unhealthy for the potential program and
school, at this point. It’s clearly already having an impact. I have concerns.”
. . . . [The Dean] also testified to how
noxious things had gotten. “The foundation of [revoking the offer],” she
stated, “was the toxic, hostile tweets that [the plaintiff] had been posting
over the course of over a month . . . . [I]t was escalating, continually
targeting [the Chair], in particular, continually targeting [other professors],
to a certain extent myself.” . . . . The
Dean discussed how [the plaintiff] had “show[n] over, and over, and over again”
a refusal to be collaborative or respectful and was “completely trying to
undermine the process.” . . . . In
short, [the plaintiff] had compromised any “ability to lead any initiative” and
any “ability to work in the Center, or the [major.]”
[The employer’s] business is
educating students. When an employee seriously undercuts the university’s power
to do its basic job, the Constitution doesn’t elevate the employee over the
public that [the employer] exists to serve. All told, “[t]he First Amendment
does not require a public employer to tolerate an embarrassing, vulgar,
vituperative, ad hominem attack, even if such an attack touches on a matter of
public concern.” . . . When “the manner and content of an employee’s
speech is disrespectful, demeaning, rude, and insulting, and is perceived that
way in the workplace, the government employer is within its discretion to take
disciplinary action.”
Rehabilitation Act
Finally, the Court rejected the plaintiff’s disability
discrimination claim at the prima facie stage because it was based on one stray
comment where concern was expressed by another professor about the plaintiff’s
mental stability.
This isolated comment is not the
kind of evidence that courts have found satisfies the “regarded as disabled”
definition. “Personality conflicts among coworkers (even those expressed
through the use (or misuse) of mental health terminology) generally do not
establish a perceived impairment on the part of the employer.” . . . . [The professor’s] remark simply
expressed her concern about [the plaintiff’s] uncollegial and unprofessional
attitude. At most, it is a “mere scintilla” of evidence—insufficient to survive
summary judgment.
NOTICE: This summary is designed merely to inform and alert
you of recent legal developments. It does not constitute legal advice and does
not apply to any particular situation because different facts could lead to
different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
