Sixth Circuit Affirms Dismissal of Retaliation Claim because Employee's Protected Conduct is Not Outweighed by Unprotected Misconduct.

 On Friday, the Sixth Circuit affirmed an employer’s summary judgment on a retaliation claim.  Crisp v. Scioto Ambulance District, No. 25-3885 (6^th Cir. 2026).  The plaintiff had reported to a supervisor an incident of sexual harassment several years earlier, but never filed a Charge or lawsuit even though the alleged harasser suffered no disciplinary action after being scheduled on separate shifts.  More recently, she showed at work pornographic pictures of the alleged harasser and his wife to new female co-workers which were online and was promptly fired for creating a hostile work environment.  “If [she] had a legal claim based on [his] alleged misconduct, she should have pursued it. [His] alleged wrongs at work did not give [her] the right to show alleged pornography while on the job.”  In other words, “ [w]hen an employee engages in both protected and unprotected conduct under Title VII, she cannot use the protected conduct to seek shelter from a firing that is based on her unprotected conduct.”

According to the Court’s opinion, the plaintiff and alleged harasser worked together as EMTs for the City ambulance department and he frequently sexually harassed her with lewd comments.  She learned that he had posted pornographic images of himself on a public website profile seeking partners outside of marriage.  They later come to work together again at the County ambulance district.  Again, he engaged in horseplay and once groped her.   After she reported it to a supervisor, he suffered no disciplinary action, but was scheduled on different shifts from her thereafter.   She let anyone who would listen know that she found him to be a pervert, etc., but pursued no legal or administrative action.  Several years later, after some new female EMTs were hired (including his wife), she felt compelled to warn them about him by showing them the pornographic images he had posted (and possibly some that included his wife).  The employees complained and, following an investigation, the plaintiff was fired for creating a hostile work environment for showing pornographic images in the workplace when simply providing a verbal warning would have been sufficient.   She filed suit for retaliation. 

Federal and state law ban retaliation against an employee for opposing an employer’s discriminatory practices.  . . .  So an employer cannot fire an employee for simply telling her co-workers that she is being sexually harassed at work. . . .

 . . . .

Displaying the [his] alleged Fetlife profiles to other co-workers while at work was not protected activity. True, [the plaintiff] complained that [he] had made inappropriate comments and had touched her inappropriately while on their shift. If that happened, [his] conduct was deplorable and sanctionable. See, e.g., Ohio Rev. Code § 2907.06(A) (sexual imposition); Ohio Admin. Code § 4765-9-01(B) (EMTs must “exhibit respect for the medical needs and personal values of . . . other EMS and healthcare practitioners”). But that would not excuse how [she] responded.  

Instead of seeking redress in a lawful way, [the plaintiff] took matters two steps further by showing nude and perhaps also sexually explicit images of both [the alleged harasser] and his wife (who had nothing to do with [his] alleged workplace misconduct) to other co-workers while at work. [She] did not need to share those images to make her point, nor can she justify showing the images of [his] wife, given that [the plaintiff’s] complaints of workplace harassment pertained only to [him] himself. Even if the[y] posted these images online and publicly shared some of this information, that does not mean that their co-workers had to be subjected to seeing or hearing about it while on the job. In the workplace, the law requires that some things be left unseen. The[ir] alleged Fetlife profiles are two of them.

[Plaintiff] argues that Title VII protects at least some of what she said and did at the meeting  . . . . We agree, see,  . . . . but that is not enough for her claim to survive. When an employee engages in both protected and unprotected conduct under Title VII, she cannot use the protected conduct to seek shelter from a firing that is based on her unprotected conduct.  . . . .  Put more concretely, the mere fact that [she] was complaining about [his] behavior did not give her the right to also show the nude and possibly sexually explicit pictures of him and his wife. For good reason, [she] does not argue that displaying these images while at work is protected activity. So the fact that she may have been allowed to tell her co-workers about [his] alleged workplace misconduct does not excuse her own misconduct.

 . . . First, to the extent that Title VII provides a remedy for employees in a sexually charged workplace, that remedy lies in a hostile-work-environment claim,  . . .  and [she] dropped that claim in her summary judgment papers. Second, [she] does not bring a disparate-treatment claim, nor does she argue that similarly situated EMTs at Scioto shared nude or sexually explicit images without being fired . . .  Thus, to win relief from our court, Crisp is essentially left to persuade us that a jury could find her employer violated Title VII when it fired her for sharing nude images of a co-worker while on the clock. That she has not done.

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.

Unanimous Sixth Circuit Rejects Retaliation Claims That Lacked Protected Activity When Plaintiff Never Retained Law Firm or Joined Lawsuit

Yesterday, a unanimous Sixth Circuit Court of  Appeals affirmed a healthcare employer’s summary judgment on retaliation claims brought by a terminated physician who opposed the employer’s COVID vaccination policy and shared internal communications about the policy with a class action law firm without retaining the law firm, joining the class action or even filing an EEOC Charge.  DiChiara v. Summitt Medical Group, Inc, No. 25-5396 (6^th Cir. 2026).   The Court found that the conduct which caused her termination was not protected participation because she never joined or commenced an official proceeding before her termination or misconduct.  Her misconduct could have been protected opposition except that she did not have an objectively reasonable belief at the time of her misconduct that the employer was violating the law since its policy was facially valid and she was unaware of how it had been addressing requests for religious and medical exemptions. 

According to the Court’s opinion, on August 1, the employer adopted a COVID vaccination policy which provided that all employees must be vaccinated by October 1 or seek a medical or religious exemption by September 15.  The plaintiff physician opposed the employer’s COVID vaccination policy on scientific, medical and religious grounds.  However, she initially only publicly opposed it on scientific grounds.   

After seeing a Facebook post from a disbarred attorney who was working to fight similar vaccination policies at various regional hospitals, she contacted him for advice about contesting the policy on medical, scientific and religious grounds, although she did not intend to assert religious grounds until seeking her own exemption.  However, she declined to sign a letter of representation or to join a class action lawsuit that was then filed against her employer.  Instead, she met with her employer and presented her scientific and medical concerns.  

When her employer did not rescind its policy after her meeting, she arranged for a petition by similarly minded co-workers and shared information about the petition and other internal emails with the law firm, asking that it not be made public and that she assumed that her religious exemption would be granted when she sought it.  The petition was submitted to her employer with 47 signatures on August 31.  The law firm then included the information about her emails and the petition in its lawsuit, which embarrassed her, and caused her to demand that the information be removed and to apologize to her employer and colleagues because she never intended to seek litigation, had never retained the Deters law firm and never signed an affidavit.

She formally sought her religious exemption on September 13 and it was granted on September 17.   By October 1, all employees had been vaccinated or received an exemption.  The plaintiff was fired on October 4 for, among other things, misappropriation of company property, disloyalty, unprofessional behavior, etc.  and subjected to a non-compete clause.   She then filed an EEOC Charge and initiated litigation. 

The Court affirmed dismissal of the lawsuit.  Of interest, was its clear bright-line guidance concerning her federal retaliation claims.

To establish a prima facie case of retaliation, [the plaintiff] must show that she (1) “engaged in protected activity,” (2) her “employer knew of the exercise of the protected right,” (3) her employer took an “adverse employment action” against her, and (4) “there was a causal connection between protected activity and the adverse employment action.” . . .

We start and end by analyzing protected activity. Title VII and the ADA provide two distinct ways that an employee can engage in protected activity. First, an employee could “participate[] in any manner” in a Title VII or ADA investigation, proceeding, or hearing. 42 U.S.C. § 2000e-3(a); id. § 12203(a). Second, an employee could “oppose[]” unlawful discrimination. Id. The distinction between the opposition clause and the participation clause “is significant because federal courts have generally granted less protection for opposition than for participation in enforcement proceedings.”  . . . .. But neither clause covers [her] conduct in this case.

Participation. [She] argues that she participated in a Title VII proceeding because she “confidentially gave employer documents to a law firm . . . to help build Title VII and ADA claims.”  . . .  This sort of indirect assistance does not qualify as protected conduct under the participation clause on the facts of this case. The participation clause “protect[s] the employee who utilizes the tools provided by Congress to protect his rights.”  . . .  “[O]nce activity in question is found to be within the scope of the participation clause, the employee is generally protected from retaliation.” . . . The protection persists even if “[an] employee is wrong on the merits of the charge” or “the contents of the charge are malicious or defamatory as well as wrong.”

Such broad protection necessitates a clear starting point. We have previously held that participation must be “direct”—it covers activities like being a party to a lawsuit, providing deposition testimony, or responding to a subpoena.  . . .  By contrast, we have held that “any activity by the employee prior to the instigation of statutory proceedings is to be considered pursuant to the opposition clause” rather than the participation clause.  . . .  To hold otherwise, we explained, “would blur the distinction between opposition to unlawful practices and participation in proceedings.”

[The plaintiff] was not a party to any lawsuit and her own statements show that she never intended to “seek litigation,” that she “never asked Deters Law to represent [her],” and that she never “sign[ed] any affidavits for Deters Law.”  . . .   . . .  Instead, she argues that her emails to Eric Deters were protected activity because she sent them as “ammunition” to help build Deters’s case.  . . .  But [her] pre-lawsuit emails constitute indirect assistance at best. That’s not enough.

 . . .

We ask simply whether an employee was directly involved in an ongoing proceeding.  . . . And here, the answer is no.   [The plaintiff] has presented no evidence of direct participation in a Title VII or ADA proceeding. No lawsuit was ongoing at the time she forwarded the emails. And, even with respect to the later-filed lawsuit, she was never a party. Nor did she participate in a deposition or subpoena. Indeed, she affirmatively renounced any involvement in the relevant lawsuit as a party or witness. So her conduct doesn’t qualify.

Opposition. [The plaintiff] also argues that her forwarding of confidential internal emails to Deters constituted protected opposition. For the opposition clause to apply, an employee must “challenge[] an employment practice that [s]he reasonably believe[s] was unlawful.”  . . .  That requires the plaintiff to make two showings: (1) that she actually, subjectively believed that her employer was engaging in discriminatory activity and (2) that such a belief was objectively reasonable in light of the facts.

The Court accepted that she may have subjectively believed at the time of her misconduct that the policy was unlawful and was concerned that it would ultimately deny her religious exemption request.  However, there was no evidence that this belief was objectively reasonable based on the facts that she knew at the time or as they eventually developed.

 . . .  Objective reasonableness requires a finding that “a reasonable person in the same factual circumstances with the same training and experience as the aggrieved employee would believe that the conduct complained of was unlawful.”  . . .  This inquiry is a matter of law “when no reasonable person could have believed that the facts known to the employee amounted to a violation or otherwise justified the employee’s belief that illegal conduct was occurring.”  . . .  

That’s the case here. No reasonable person could have believed that the facts known to [the plaintiff] amounted to a violation of Title VII or the ADA. [She] offers no evidence known to her at the time that would support a reasonable belief that [her employer] engaged in “any practice made an unlawful employment practice” under Title VII. 42 U.S.C. § 2000e-3(a). [Its] vaccine policy, which promised religious and medical accommodation, was facially legal. And [she] does not claim that she thought otherwise. So [she] needed some additional basis to think that [it] would act unlawfully.

[She] fails to provide that crucial evidence. [She] had not yet applied for a religious exemption and didn’t have any information about how [her employer] would process her request—especially because she intentionally avoided discussing her religious objections with [its] leadership. In fact, when [she] told Deters that she planned to “apply[] for a religious exemption,” she “assume[d] [she] w[ould] get it granted.”  . . .  And she expressed no qualms with any additional preventative requirements (like masking) that she would face as an unvaccinated employee if [her employer] did grant her exemption. Neither does [she] claim that she knew of anyone who had been denied an exemption or fired for religious beliefs.

[The plaintiff] points to the fact that, as of September 13, [her employer] had granted only 10% of the total number of religious exemption requests it eventually approved (76 out of 760). She frames this as evidence that [it] intended to withhold accommodations. But [she] presents no evidence of the percentage of requests made by September 13 that [it] had granted (or failed to grant). And [the employer] offered uncontested testimony that “[they] weren’t holding exemptions”; instead, “a whole bunch of these [requests] came in at . . . or immediately prior to the deadline” on September 15.  . . .  What’s more, [the plaintiff] does not allege that she knew about this data at the time of her alleged opposition, so it couldn’t have formed the basis of any reasonable belief.  . . .  Without some objective basis to ground her subjective fear of unlawful activity, [her] conduct did not amount to protected opposition.

Because the plaintiff failed to identify any protected activity which could support an actionable retaliation claim, the Court did not address the remaining elements of a retaliation claim or engage in any burden shifting or discussion of pretext.  It also dismissed her state law claims. 

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.

Sixth Circuit Affirms Employer's Summary Judgment on FMLA Interference and Retaliation Claims Where Employee Was on Last Chance Agreement and Never Sought Medical Treatment

Last week, the Sixth Circuit affirmed an employer’s summary judgment on FMLA interference and retaliation claims.  Paris v. McAllister Machinery Co., Inc., No. 25-1726 (6^th Cir. 5-14-26).  The employee could not prevail on the FMLA interference claim because he could not show that he suffered a serious health condition with hospitalization or consulting with a medical provider about his mental distress.   While he could show that his inquiries about taking FMLA leave for his mental distress were protected activities, and were temporally proximate to his termination less than a month later, he could not show that his termination was pretextual when he was already on a Last Chance Agreement and his violation of any policies justified his termination.   Temporal proximity could not satisfy his need to prove the employer’s explanation was pretextual. 

According to the Court’s opinion, the plaintiff employee had a long history of performance problems and was ultimately placed on a Last Chance Agreement in October 2018 to avoid being immediately terminated.  He was then told by his union steward in early December  that he was about to be fired.  His supervisor a few weeks later confronted him about not wearing steel-toes shoes during his shift. He denied the allegation, which prompted the supervisor to try and stomp on his foot to prove his point.  Upset, he called HR and said he needed time off for anxiety, anguish and mental distress.  They discussed him applying for FMLA and he asked for the forms so that he could do so.  However, despite the passage of a month between this event and his termination, he never sought medical care or treatment for his distress and he never submitted a formal request for FMLA leave after receiving the forms upon request.   He was then fired in mid-January 2019 for a variety of infractions over the last few months, including not wearing required protective clothing, overcharging customers,  and general inability to follow proper procedures.

The Court agreed that he could not prevail on an FMLA interference claim because he had never sought medical treatment of any kind for his mental anguish.   Without such treatment or medical consultation, he could not prove that he had a serious health condition and was entitled to take FMLA leave.  No jury could rule in his favor on such a claim, entitling the employer to summary judgment as a matter of law.

The Court also agreed that he could not prevail on his FMLA retaliation claim, but for different reasons than the trial court.  The Court agreed that his inquiries about taking FMLA leave and requesting the FMLA forms constituted protected conduct and that his termination approximately a month later could support a causal connection between the two (i.e., temporal proximity).  However, he could not show that the employer’s explanation for his termination – poor performance and violation of company policy in violation of his Last Chance Agreement – was pretextual.  He had been told by the union before his protected conduct that he was about to be fired for violating the Last Chance Agreement. The employer specified a number of incidents and violations which took place in the few months before his termination that violated his Last Chance Agreement.  “We agree with [the employer] that a single violation of [its] policies following [the plaintiff’s] entry into the LCA would have constituted a valid, nondiscriminatory reason for his termination.”

[He] then failed to carry the burden of showing that any of [the employer’s] reasons were “in reality a pretext to mask discrimination.”  . . . . He failed to do so because he provided no evidence that [its] termination was pretextual.  . . .  And temporal proximity alone cannot support a showing of pretext.  . . .  There is no genuine issue of material fact as to whether [its] termination of [his] employment was pretextual, and [it] was entitled to judgment as a matter of law on [his] FMLA retaliation claim.

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.

Franklin County Appeals Court Affirms Employer’s Summary Judgment on Sex, Race, Harassment and FMLA Retaliation Claims

Last month, the Franklin County Appeals Court affirmed an employer’s summary judgment on FMLA retaliation and sex and race discrimination allegations following the plaintiff’s demotion. Fields-Arnold v. Cent. State Univ. Bd. of Trustees, 2026-Ohio-826. The Court found that the plaintiff waived certain arguments about direct evidence, race discrimination and hostile work environment by failing to provide any substantive argument before the trial or appeals courts.  The plaintiff also failed to show replacement outside the protected class or to show that the employer’s explanation for her demotion was pretextual, dooming her sex discrimination and FMLA retaliation claims.  While she was not given a specific reason at the time of her demotion, she admitted that her job performance had previously been criticized and she failed to dispute the reasons given in the employer’s summary judgment motion.

According to the Court’s opinion, the plaintiff was encouraged by the university president to apply for a certain promotion, which she eventually received.  However, in their first post-promotion meeting, their relationship soured when she requested a higher salary than offered.  Although she prevailed in receiving a $5K increase, the president allegedly said that she talked too much and reminded him of his wife.   He later criticized her performance in a few meetings and she was demoted back to her prior position a few months later.  In the meantime, she had applied for and, after submitting additional documentation, FMLA leave. She was replaced by a white female and resigned the following year after filing this lawsuit.   The court of claims granted summary judgment on all claims to the employer.

The Court found that she had abandoned her race discrimination claim by failing to make any substantive arguments in her appellate brief when challenging the trial court’s rejection of this claim for failing to show pretext.  Indeed, she apparently only used the word “race” three times in her entire brief.

Similarly, it rejected any claims of direct evidence of sex discrimination because she never raised this argument in opposing the summary judgment brief at the trial court level.  Moreover, the three alleged comments were not directly related to the issue of her demotion, and thus, were not direct evidence since it still required an inference as to the speaker’s intent. 

[His] comments, while disrespectful and perhaps based on stereotypes, do not satisfy the requirements to constitute direct evidence of discrimination. “ ‘Direct evidence is proof which speaks directly to the issue, requiring no support by other evidence.’ ”  . . .  It “ ‘does not require a factfinder to draw any inferences in order to conclude that the challenged employment action was motivated at least in part by prejudice against members of the protected group.’ ”

In addition, she failed to identify anyone outside her protected age or sex class who was similarly situated, failed to meet the employer’s performance expectations and was treated better than her. 

The Court also rejected her appeal dismissing her hostile work environment when the trial court found that three alleged comments over a four month period were insufficiently pervasive or hostile.   As with her direct evidence argument, she failed to even mention “hostile work environment” when opposing the employer’s summary judgment motion at the trial court. 

As for her FMLA retaliation claim, the trial court had found that it failed because she received all of the FMLA leave she requested and her demotion did not deter her from seeking additional FMLA leave.  The Court’s majority reversed that determination, but found she still could not prevail because she failed to present evidence showing that the university’s dissatisfaction with her performance was pretext for retaliation. She admitted that the university president had criticized her performance to her face several times and did not try to show that those and other criticisms lacked a factual basis or were insufficient to motivate her demotion, etc.   Therefore, the fact that she was not told at the time of her demotion the specific performance reasons for it, she had previously been informed about dissatisfaction with her performance and failed to show those and other criticisms were pretextual.

Even if an employer approves an employee’s FMLA requests, the employer could still go on to impose an adverse employment action against the employee for exercising her rights under the FMLA. . . .  And that is exactly what [plaintiff] alleged in her complaint—that she was demoted because she took FMLA leave. We find the court of claims erred in concluding [she] “failed to identify an adverse employment action that was taken against her because she used FMLA leave.”

. . . .

Although [Plaintiff] did not receive specific examples of her unsatisfactory performance at or around the time of the demotion  . . . , she was aware of Dr. Thomas’s dissatisfaction before the demotion occurred. In her deposition, [she]recounted two meetings where [he] criticized her performance. . . .

While [her] deposition testimony reflects her general belief that she satisfied the job duties as listed in the job description  . . . , she did not contest the specific assertions [he] made about her purportedly unsatisfactory work. 

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.

When Enough Is Enough: Sixth Circuit Affirms Dismissal When Employer's Actions and Belief Were Sufficient

Yesterday, the Sixth Circuit affirmed an employer’s summary judgment dismissing a workplace harassment and retaliation claim.  Hamm v. Pullman SST, Inc., No. 25-1617 (6^th Cir. 2-12-26).   The plaintiff alleged that he was harassed by his co-workers and the construction superintendent and then was fired in retaliation for complaining.  The Court found that the employer’s actions to respond to his complaints were sufficient based on the information provided and his repeated failure to accept alternative work assignments gave the employer an honest belief that he was not interested in continuing his employment, justifying his termination. 

According to the Court’s opinion, the plaintiff was hired by the construction manager and reported to the superintendent.  After a few months, he mentioned that he was bi-sexual to a co-worker, who told others.  Starting in November, he was called derogatory names by his co-workers and the superintendent.   He finally reported to the manager in mid-February that unnamed co-workers were calling him homophobic slurs, but did not mention that he was bi-sexual.   Thinking it was merely a personality conflict, the manager spoke to the crew and the problem was resolved for a couple of weeks.  However, when it started again, he complained again to the manager in mid-March about two co-workers and the superintendent referring to him with homophobic slurs.  The manager said he would take care of it, still without any knowledge that this was a sexual harassment complaint because of the vagueness of the complaint.  The plaintiff claimed that the mistreatment continued, culminating in him leaving the worksite never to return on April 29 because of an anxiety attack.

He finally formally reported the problem on April 29 to HR, which conducted a thorough investigation.  Everyone – including the allegedly neutral witnesses – denied his allegations, except for the superintendent losing his temper with him on April 29.  Instead, he was described as lazy.   The superintendent was formally warned.  All of the supervisors were required to submit to anti-harassment training and the employees were required to re-read and re-sign the anti-harassment policy.  Nonetheless, the plaintiff refused to return to work and began a medical leave for his anxiety.  Throughout the month of May, he was offered five different re-assignments to different work locations, but he objected to all of them for reasons other than his medical leave or anxiety.  While he never technically refused, he never accepted them either and had secretly recorded at least one of job offers.   After twice extending his medical leave, he inquired about returning to work and was told that his employment had been terminated.

The Court declined to address a number of potential issues and others the parties chose to not dispute, including whether this constituted harassment prohibited by Title VII, whether the periodic comments were sufficient to create a hostile work environment, etc.

The Court rejected the argument that the employer was automatically liable for any comments by the superintendent because the plaintiff failed to produce any evidence that the superintendent took or could take any tangible employment actions, making him a supervisor whose actions would bind the employer. Instead, the superintendent was treated as a co-worker.

Employers are only held liable for co-worker harassment if it was negligent – i.e., it knew or should have known about the harassment and unreasonably failed to stop it. 

Or, as our own caselaw puts it, the employer’s response must “manifest[] indifference or unreasonableness in light of the facts the employer knew or should have known.”  . . .  If, then, an employer takes “prompt and appropriate corrective action” after learning of the harassment, employees cannot tie the harassment to the employer.  . . .

The Court concluded that the plaintiff failed to show manifest indifference by the employer.  The manager took immediate and effective action in response to his first (February) vague complaint (which had not identified any specific individuals because he had not wanted to get anyone in trouble).   The manager’s action about the second (March) complaint were still deemed sufficient since the plaintiff still had not provided information indicating that this was a sexual discrimination issue.   The HR Department conducted an immediate investigation which failed to corroborate his allegations and was not required to believe him, particularly when none of his own witnesses corroborated his allegations.  Moreover, the employer took action in any event to prevent future harassment, including training and counseling.  When the manager learned the details of the problem in early May, he immediately agreed to reassign the plaintiff and approved the medical leave and extensions.  He also offered the plaintiff alternative assignments which addressed his stated objections.

The Court rejected the plaintiff’s arguments that he had never actually refused the alternative work assignments.  However, based on his own secret recordings of the conversations, it was clear he had raised objections and never actually accepted the job offers.  Thus, the employer had an honest belief that he had rejected them:

And during the call with [the manager] (that [the plaintiff] secretly recorded), [the plaintiff] said he was “not at all” good at this type of work.  . . . [His] response to this offer came as close to an express denial as it could. All this said, we agree that [he] did not expressly deny most of the jobs. For example, he did not say “No” to driving to Toledo or Cincinnati. Rather, he asked a question: “Isn’t that a hike?”  . . . .  And he did not say “No” to the overhead demolition work; he simply said that this work “hurts [his] shoulder.”  . . .  Given his clear reluctance to take these jobs, we doubt that any reasonable jury could rely on this lawyerly argument to prove [the employer’s] pretext.

At day’s end, though, we need not resolve this debate over whether [the manager] made formal offers or whether [the plaintiff] gave formal denials. When an employee claims that an employer’s reason for an adverse action had no basis in fact, the employer does not need to prove that reason in court.  . . . . It just needs to prove that it held an “honest belief” that the reason was true.  . . . . . So, for example, an employer who fires an employee for fraud does not need to establish that the employee committed the fraud—just that it honestly believed the employee did so.  . . . .  And the employee cannot show pretext merely by showing that the reason was false.  . . . .. This rule applies here. Whether or not [the plaintiff] actually declined these many offers, [the employer] at least held an “honest belief” that he did.  . . .  And [his] “own assertions” that he never denied any assignment do not suffice to overcome this honest-belief rule.

The Court also rejected the plaintiff’s argument that he was not required to accept the alternative assignments because he was on medical leave.  He never once raised his medical leave or his anxiety as a reason that he rejected the five possible re-assignments.  Instead, he “raised concerns that the worksite was too far away, or too high in the air, or too demanding on his shoulders, or too late in the day given other appointments.” Moreover, the assignments were offered before he extended his medical leave.

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.

Gray v State Farm Was Amended to Clarify Cat's Paw Theory and Breaks in Causation

 In August, I posted about an interesting Cat’s Paw theory case, Gray v. State Farm Mutual Auto. Ins. Co.,  (6^th Cir. 2025), where the Sixth Circuit reversed an employer's summary judgement due to possible selective enforcement of a time card fraud policy by a manager in retaliation for the plaintiff's prior protected conduct. 

As I briefly explained:

In July, the Sixth Circuit reversed an employer’s summary judgment on a retaliation claim where the plaintiff claimed that she was investigated and then fired in retaliation for assisting a co-worker assert her rights under the ADA and be transferred away from her discriminatory supervisor.  Gray v. State Farm Mutual Auto. Ins. Co., 145 F.4th 630 (6^th Cir. 2025).   When her co-worker’s discriminatory supervisor filled in for the plaintiff’s supervisor shortly after the protected conduct, he launched an unprompted and unprecedented investigation into the plaintiff’s time cards by comparing them to her computer use.  No other employee was investigated – despite similar discrepancies -- and the plaintiff was ultimately fired for time card abuse.  

The Court agreed that the evidence aligned with its precedent holding that “employees can establish prima facie causation by showing that their employer began scrutinizing them more heavily shortly after they engaged in protected activity, and then used its findings to justify termination.” The plaintiff was able to show that the discriminatory supervisor knew of her assistance to her co-worker and his retaliatory intent under a “cat’s paw” theory of vicarious liability. 

While the employer may have avoided direct liability under an honest belief theory, the supervisor’s actions could not. A “supervisor does not have to lie in order to be biased. As we have repeatedly recognized, a supervisor can cause an employee’s termination by reporting true yet selective information.”  Moreover, although “an employer can escape liability by conducting ‘an in-depth and truly independent investigation’ into an otherwise biased report,  . . . when a supervisor reports true but selective information, an investigation will always confirm the supervisor’s allegation.”  In this case, the employer and HR failed to take the plaintiff’s complaint of retaliation seriously or to compare her misconduct to other employees before terminating her employment.

The Court then held a re-hearing and amended its decision and dissent in December.   Gray v. State Farm Mutual Auto. Ins. Co., 159 F.4th 1024 (6th Cir. 2025).   Here is some of the additional text that was then added to its decision (emphasis added):

A simple example illustrates why. Imagine a workplace where five employees were engaged in the same pattern of misconduct. If a supervisor made a true but selective report of wrongdoing against one of the five employees because of that employee's race, they would be attempting to use the company's human resources as the "conduit" for their bias. See Romans v. Michigan Dep't of Hum. Services, 668 F.3d 826, 835 (6th Cir. 2012). If human resources then opened an independent investigation into that one employee, it would confirm the biased report, but it would not necessarily negate the supervisor's bias in singling out one employee based on race. That's why the Supreme Court "declined to adopt [] a hard-and-fast rule" that "an independent investigation has a claim-preclusive effect" or "somehow relieves the employer of 'fault.'" Staub, 562 U.S. at 420-21.

              . . . 

Our decision today does not impose a bright-line rule that a supervisor's true-but selective report will always be the proximate cause of any subsequent adverse employment action. Rather, we simply echo Staub's holding that a subsequent investigation that does nothing more than confirm a supervisor's true-but-selective report is by itself insufficient to break the chain of proximate causation.  . . . . An employer can still negate causation by establishing that "the employer's investigation result[ed] in an adverse action for reasons unrelated to the supervisor's original biased action."  . . . . . Put another way, an employer will not be liable if its investigation uncovers a superseding "cause of independent origin that was not foreseeable" from the supervisor's biased action . . .

We have previously held that the existence of a superseding cause is a question of fact.  . . .

Here, the undisputed record shows that [the manager] reported [the plaintiff] for "manually changing" her time entries and identified three discrepancies as proof of that fact. [The employer’s] HR employee,  . . . , thereafter conducted her own investigation that revealed additional discrepancies beyond the three identified by [the manager], including instances where [the plaintiff] reported working while she was not in the building. [The employer] claims that it fired [her] based on these additional out-of building discrepancies. On summary judgment, the question that we must answer is whether [her] termination based on these additional discrepancies was so "unrelated" to [his] original report and so "not foreseeable" by him that no reasonable factfinder could find proximate causation.

We hold that this question cannot be answered as a matter of law. [The manager] reported generally that [the plaintiff] was "manually changing" her time, not that she had done so only in the three instances that he identified. He also falsely informed [HR] that [she] had previously been reprimanded for similar conduct, suggesting that his report concerned a broad pattern of timekeeping issues. And he suggested in his report to HR that an investigation of [her] would uncover additional timekeeping errors. Given that [his] report and [her] termination both related to [her] timekeeping entries, a reasonable jury could find that the former improperly influenced—and was a proximate cause of—the latter.

Our decision in Romans does not counsel otherwise. Romans does not stand for the proposition that an independent investigation always breaks the chain of causation. Nor could it after the Supreme Court's rejection of that argument in Staub. It instead held that the independent investigation broke the causal chain because of the particular facts at issue in that case. There, the decisionmaker expressly disclaimed reliance on an allegedly biased report and conducted a separate investigation into the plaintiff's alleged misconduct.  . . . . The separate investigation found that the plaintiff had "violated four work rules, only one of which was related to [the allegedly biased] report, and each of which would have individually supported a termination."  . . . Therefore, Romans falls comfortably within the scenario delineated in Staub where an independent investigation "results in an adverse action for reasons unrelated to the supervisor's original biased action."  . . .

By contrast, here, [the employer] relied on [the manager’s] report and opened an investigation that confirmed his allegations. [It] then took the adverse action that [his] report was "designed and intended" to produce by firing [her] for timekeeping discrepancies.  . . . . So a jury could conclude that [its] investigation took into account [his] biased report and failed to determine that the adverse action was justified apart from his recommendation.  . . . . Romans supports rather than undermines this analysis.

The  dissent continued to elaborate why the  independent investigation by HR, which uncovered additional and more sever timekeeping violations, should have resulted in summary judgment as breaking the cat’s paw causation. 

 

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.

Sixth Circuit Upholds Termination for Time Card Fraud Despite Cat's Paw Theory or Suspicious Timing

Yesterday, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment for terminating an employee for time-card fraud despite his arguments about failure to accommodate, retaliation and a cat’s paw theory that was remarkably similar to an earlier decision in   Gray v. State Farm Mutual Auto. Ins. Co., 159 F.4th 1024 (6^th Cir. 2025) (finding possible selective enforcement of time card fraud policy in cat’s paw retaliation case).   Shears v. FirstEnergy Corp., No. 24-3915 (6^th Cir. 1/5/26).  The Shears Court rejected the plaintiff’s assertion for the first time on appeal that his misconduct was caused by brain fog from his known disability and should have been accommodated.  The Court rejected all retaliation claims, regardless of the suspicious timing, because there was insufficient evidence of pretext, such as comparators receiving better treatment, knowledge by the initiating manager of prior protected activity or deviation from policy, etc.  The employer also conducted several reasonable investigations, entitling it to the honest belief defense.   Unlike the Gray case, there was apparently insufficient evidence presented to the trial court about selective investigation of time card fraud.

According to the Court’s decision, Plaintiff was diagnosed with Type 2 diabetes in 2012 and had been granted an accommodation to work only days from 2012 to March 2019. In  January 2019, he  assisted co-workers with sexual harassment complaints against his manager.  There was no evidence that the manager was aware of this.  During a work emergency, his manager assigned him to work nights again despite his complaints until he mentioned his diabetes and was requested to provide medical documentation.  He did in April and was immediately returned to day shift.  Afterwards, his manager investigated and discovered time card discrepancies ranging from 36-106 minutes during March 2019.  These were investigated and confirmed by his director, HR and a separate safety committee.  Plaintiff was interviewed several times and apparently never claimed retaliation or different scrutiny. He was fired in May 2019.   

The trial court granted summary judgment to the employer.  Employer was granted summary judgment.  The employer articulated a legitimate basis to terminate him for time card fraud, and the plaintiff never disputed that he had had not entered the plant at times he had reported being at work. The employer was also entitled to the honest belief defense because it had conducted several reasonable investigations to confirm the facts and given him the opportunity to respond. 

The courts rejected his reasonable accommodation claims.  First, he had failed to show any unreasonable delay in March when the employer was entitled to medical documentation and immediately provided his requested accommodation once he produced it and abandoned this theory on appeal.  It also rejected his new argument that his discrepancies were caused by brain fog from his known diabetes because “a failure-to-accommodate claim requires proof that the employer denied a reasonable accommodation—not that it disciplined or discharged an employee whose disability allegedly contributed to the underlying conduct.”  It found that he failed to prove this theory and found his cited cases distinguishable.  What the Court did not note is that the EEOC Guidance from 2008 had previously provided that an employer is not required to accommodate misconduct caused by a disability unless the employee had put the employer on notice of the need for an accommodation of that issue: 

When an employee does not give notice of the need for accommodation until after a performance problem has occurred, reasonable accommodation does not require that the employer   . . . tolerate or excuse the poor performance; . . . withhold disciplinary action (including termination) warranted by the poor performance . . . .

The Court also rejected the ADA retaliation because he could not show pretext when admitting the time card discrepancies and without similarly situated comparators who were treated better.  His excuses for his actions did not dispute the action and the employer not required to believe his “honest mistake” defense.   He might have prima facie case from the timing of his termination compared to his request to return to the day shift, but he lacked evidence of pretext to rebut the intervening causation factor of his time card fraud.

The Court also rejected his Cat’s Paw Theory because there was apparently no evidence that his manager was aware about his prior protected Title VII conduct in assisting his co-workers sexual harassment allegations.  There were also independent investigations and plaintiff had insufficient evidence that other employees engaged in similar misconduct without being fired or that he had ever alleged such similar misconduct during the employer’s multiple investigations and interviews.   In other words, there was insufficient evidence of selective enforcement by his manager of the time card fraud issues to support a cat’s paw theory.

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.

Divided Franklin County Court of Appeals Finds Noose By Itself to Be Sufficiently Severe for Hostile Work Environment

Last week, a divided Franklin County Court of Appeals reversed an employer’s summary judgment on racially hostile work environment and retaliation claims.  Croley v. JDM Servs., L.L.C., 2025-Ohio-4762.  The Court found that the existence of a noose in a vehicle temporarily assigned to a new African-American employee on his second day of work by itself – without any racial comments or other  evidence – was sufficient to create a jury question whether it was intended to harass and intimidate him on account of his race.  Similarly, the later spontaneous shattering of  his assigned vehicle’s windshield – with a pre-existing hole in it – was also sufficient to create a jury question whether it had been shot out without any other evidence of a gun or bullet fragment.  Finally, the employer’s termination of the employee for refusing to permit a sample to be taken from the noose to compare to other rope on the worksite during its investigation of his allegations was found create a jury question of retaliation when the employer had not already gathered rope samples before the employee’s refusal based on his mistrust of the employer.  The Court conceded that there was sufficient holes in the plaintiff's case for a jury to rule in favor of the employer, but felt that the jury should make the decision instead of the trial court. 

According to the Court’s opinion, the plaintiff was hired on January 10 by the employer’s General Manager and began work on January 13. On January 14, the GM directed that the plaintiff be trained on the compacter, which he was by two different employees.  During a ride on the compacter, he grabbed a rope for stability, but did not find it helpful.  Later, while alone in the compactor, he realized that the rope was a noose hung from the rearview mirror and it made him extremely fearful.  He took the noose and hung it from the door of the employee trailer.   That night, he reported it to the employment agency and the next day, January 15, the GM questioned him about it, reiterated that the employer does not tolerate discrimination and commenced an investigation.  The plaintiff put the noose in his truck for safekeeping and refused to turn it over to the employer, although he did let them see it and inspect it.  The following week, the windshield of the vehicle he was operating had a small hole in it and then spontaneously shattered while he was in it.   He believed that the windshield had been shot out by a gun and saw the GM’s vehicle parked up the hill.   A few days later, he was again requested for the noose or a piece of it so that it could be compared to other rope at the work site during the employer’s investigation.  While he allowed the noose to be inspected in his presence, he again refused to turn it over or permit a sample to be taken and was fired for insubordination for impeding the investigation.

After the plaintiff was terminated, the owner reported him for making criminal threats against a co-worker, but the co-worker told the police that he did not feel threatened and nothing came of it.  The employee filed suit in October.  The trial court granted summary judgment to the employer on the discrimination, harassment and retaliation claims.  The Court of Appeals reversed the harassment and retaliation claims, finding sufficient evidence for a reasonable jury to evaluate.

While the Court’s majority conceded that many courts would not find the noose incident – by itself – to constitute a hostile work environment, it disagreed:

The noose is a symbol of this nation’s violent legacy against African Americans and brings them “ ‘the grim specter of racially motivated violence’ that continues today.”  . . . . The noose is “among the most repugnant of all racist symbols, because it is itself an instrument of violence.”

Historically, the noose is forever “linked to lynching, the Ku Klux Klan (“KKK”), and the murdering of thousands of African-Americans.” . . .

 . . . .

 . . . For the reasons above, we conclude the act of hanging a noose on the mirror of an African American’s vehicle is undoubtedly an unwelcome form of harassment based on race.

 . . . .

 . . .  The question becomes whether the act of hanging a noose on the vehicle assigned to an African American male, on his second day of work at the facility, is severe enough conduct to support a hostile work environment claim. We unequivocally answer this question in the affirmative.

 . . . .

 . . . Even in cases where the noose does not appear directed at a particular individual, given the noose’s dark legacy, a reasonable African American employee could be forever altered by such a visceral symbol in the workplace. African Americans who observe such a heinous symbol should not be required to explain the violent history of the noose and how it can invoke fear and anxiety. The threat of a noose is self-evident.3

The Court also believed that the window spontaneously shattering while the plaintiff was inside could also be considered by a jury as evidence of harassment even though no shell casings or bb or pellet was found afterwards that might have explained why it shattered.  It also rejected the employer’s explanation that windshields periodically shatter at the worksite because of the regular vibrations.

As the window incident occurred only a week after the display of the noose, we find, considering the evidence in a light most in favor of the nonmoving party, the incident amounts to threatening conduct that indicates a willingness to act on the statement made by the noose incident. Because the window incident amounts to a physical threat of violence, the implicit threat from the noose is heightened and, based on the close sequence of events, could reasonably be construed to have a racial animus. Finally, there is a dispute of fact as to liability as [the plaintiff] claims that [the GM’s] vehicle was in the immediate vicinity when the glass shattered.

The dissent, realizing that nooses exist for reasons other than lynching, required more evidence than the bare existence of a noose:

The dissent contends that “[o]ther than the noose, there are no credible allegations of any race-based comments or other activity involving race. The noose is not connected to any threatening intent or racial animus by [the employer].”

 . . . .

 . . . At this phase of the case, however, we are limited to determining whether a dispute of fact exists for trial. Given the line of cases that have found that the single display of a noose in the workplace can create a hostile work environment, we find it is the province of the jury to determine whether the alleged conduct in this case is severe or pervasive enough to demonstrate a hostile work environment claim. What the dissent proposes is that, as a matter of law, leaving a noose in the vehicle of an African American male does not constitute a severe enough act, without more, to create a hostile work environment. In good conscience, we cannot support such an approach. While a jury could very well find that the alleged incident was not severe enough conduct to create a hostile work environment claim, the argument that hanging a noose in the excavator that [the plaintiff] was assigned to operate could not, as a matter of law, sufficiently alter the conditions of employment for an African American is untenable.

The Court then found that the employer could be held liable for the noose incident because it was alleged (without any evidence) that the GM had put it there since he was the individual who had assigned the plaintiff to that vehicle on that date.   The Court refused to credit the employer with conducting an investigation – despite its employee interviews – because it had delayed a few hours in retrieving and safeguarding the noose and had not gathered rope samples before firing the plaintiff for refusing to permit a sample to be taken.

It is the province of the jury to resolve whether the [the employer] took reasonable steps to correct the alleged behavior. Furthermore, there is a dispute of fact whether [the plaintiff] unreasonably failed to take advantage of any preventative or corrective opportunities that the employer provided. The [employer] commenced an investigation into the matter and met with [the plaintiff]. [He] agreed to show them the noose but refused to leave the noose or allow it to be cut for comparison with other rope at the worksite. [He]  explained that he did not feel comfortable turning over the noose or allowing them to cut a piece of it because he did not trust [the owner]. It is for the jury to resolve these factual disputes.

The Court rejected certain evidence submitted by the plaintiff to support his hostile work environment claim because he was unaware of the incidents until after he had been fired.  For example, he had been written up (without his knowledge) for improper operation of certain equipment.  They also rejected the police report as part of this claim because it happened after his termination.  ““ ‘Plaintiff cannot use events that happened after his termination to support his hostile work environment claim.’ ”

The Court also concluded that he had produced sufficient evidence that his termination was retaliatory for complaining about the noose incident.   While generally employees may be terminated for refusing to cooperate with a workplace investigation, there are exceptions and the Court found the plaintiff’s distrust of his employer to be sufficiently protected conduct in this situation to let a jury decide whether his distrust was justified and protected.

Considering the evidence in a light most favorable to [the plaintiff], a jury could reasonably determine that turning over evidence to a supervisor you do not trust, or allowing that evidence to be damaged, is a reasonable nonparticipation in the investigative process. This interpretation is bolstered by the fact that when [he] initially informed [the GM] of the noose’s location outside the employee trailer, [the GM] failed to [immediately] retrieve and secure the noose. Furthermore, [the plaintiff], despite his trepidations, repeatedly allowed the noose to be inspected. A jury could reasonably believe [his] explanation that his claim could be hindered if the noose was damaged or not be properly preserved. Conversely, the [employer] have represented that they wanted the noose to aid in the investigation. Given the accusation at issue, there is at least a dispute of fact that [his] fears were justified.

In addition, the plaintiff met several times with the employer and answered their questions.  His only refusal concerned preservation of the integrity and safekeeping of the noose.  Moreover, his termination came only days after his protected conduct in reporting the alleged harassment.

We find that the [the employer] have provided a legitimate, nonretaliatory reason for terminating [his] employment. A reasonable jury could find that failure to turn over the noose, or allow it to be cut, unreasonably impeded the investigation providing a legitimate reason for termination.

The Court then required the plaintiff to show that the employer’s explanation was pretext for retaliation.

[The plaintiff] can demonstrate pretext by introducing evidence that he provided the noose on multiple occasions to further the investigation. [He] had also previously allowed [the GM] to take the noose when he left it outside the employee trailer. [The owner] had not collected any samples of rope from around the worksite to compare it with the noose, did not offer to keep the noose in a neutral location, and never called law enforcement to report the incident.  .. . .  A jury could reasonably believe [the plaintiff’s] explanation for not wanting to turn the noose over to the appellees or allow them to cut a portion of the noose.

There was no discussion in the Court’s retaliation opinion about post-termination conduct of the employer in reporting the plaintiff for alleged criminal threats.  There was also no discussion of the same-actor inference since the alleged harasser was also the same individual who hired him only days earlier.  There was no also discussion of the racial composition of the workforce, which might have put more context in the plaintiff’s paranoia.

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.

Sixth Circuit Rejects Claims After Plaintiff's Public, Profane and Unprofessional Attacks on Colleagues

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 (6^th 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 matters 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 plaintiff's 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.

Jury Upholds Employee's Termination After Admission of Post-Incident Evidence Reflecting Subjective Consent to Alleged Harassment.

Last week, the Sixth Circuit affirmed an employer’s jury verdict on Title VII  retaliatory discharge claims where the employee had alleged that she was raped by a security guard, but the employer contended that the contact was consensual and violated its policy when she was still on-the-clock.  Graf v. Morristown-Hamblen Hosp. Ass’n, No. 24-5798 (6^th Cir. 9-10-25).  Summary judgment was granted to the employer on her hostile work environment claims, which were not part of this appeal.  Evidence of her post-incident interactions and communications with the guard were relevant to show whether she subjectively believed that he violated Title VII during the alleged incident and, thus, whether she engaged in protected conduct when she reported that he had raped her.  The jury believed that the incident was consensual, and thus, she did not have a good faith belief that she was reporting a Title VII violation.  The trial judge did not violate Federal Rule of Evidence 412 when he permitted the introduction of such evidence – limited to her interaction with that particular security guard –as evidence of her subjective belief regarding consent.

According to the Court’s decision, the plaintiff became friendly with a security guard, hired through a contractor of the employer.  They exchanged hundreds of texts and frequently met during breaks in stairwells and other places.  The guard contended that they sometimes discussed intimidate details, but the plaintiff disagreed that she ever initiated such conversations.  One day, at the guard’s invitation, the plaintiff snuck during her lunch break – when she was not required to clock out -- into an unauthorized area to avoid being seen by the employer’s security cameras.  She contended that she was handcuffed and raped.  He contended it was consensual and she never used their before-agreed safe words.  She did not report the incident and returned to work after crying in the bathroom.  However, they continued to text and exchange naked photos of each other after the alleged rape.  She claimed that she had been to afraid to not comply. Six weeks later, she learned from his supervisor that he had been accused of sexual harassment by other female staff and she then reported the rape.  He was fired. 

When the employer’s HR learned of it, they also interviewed her, but did not conduct a further investigation since the guard had already been fired.  However, the employer decided to terminate her employment because she was in an unauthorized location, where she had snuck into to avoid being videotaped by security cameras, and had relations while still on the clock.   She brought suit for sexual harassment and retaliatory discharge.   The trial court dismissed the sexual harassment claim on summary judgment.  A jury ruled in the employer’s favor after the court admitted evidence about her alleged consent to the interaction with the guard -- as reflected in the post-incident texts, photos and videos -- and rejected her allegation that she had been fired for reporting the alleged rape to the guard’s supervisor.

The trial court refused to admit evidence about her conversations with others about her sexual preferences and videos that she had exchanged with the guard.  However, it admitted the texts and photos which she exchanged with the guard after the incident and the fact that she had also sent videos.  The court found the jury could decide whether she had consented or not in determining whether she had a good faith and reasonable belief that her conduct was protected by Title VII.   The Sixth Circuit agreed that this did not violate Federal Rule of Evidence 412.

Rule 412 provides in relevant part that certain evidence is not admissible. 

Federal Rule of Evidence 412 prohibits the admission of two types of evidence in cases involving sexual misconduct: “(1) evidence offered to prove that a victim engaged in other sexual behavior; or (2) evidence offered to prove a victim’s sexual predisposition.”

However, the second part of the Rule as exceptions in civil cases: “the court may admit evidence offered to prove a victim’s sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.”  This Rule interacts with sexual harassment cases in cases like these where the plaintiff’s consent is an issue.  In this case, the plaintiff's consent was an issue as to whether she subjectively believed that the guard had violated Title VII when she reported him. 

“[a] person opposing an apparently discriminatory practice does not bear the entire risk that it is in fact lawful; he or she must only have a good faith belief that the practice is unlawful . . . . In the years since Booker, we have interpreted this language to mean that, in order to prove that they engaged in protected conduct, a retaliation claimant must demonstrate “that the opposition [was] based on ‘a reasonable and good faith belief that the opposed practices were unlawful.’” . . .

In holding that the protected-conduct element of a retaliation claim includes this reasonable and good-faith requirement, however, we have been careful to clarify that “the operative question is not whether [the complained of] conduct was actually unlawful, but whether Plaintiff held an objectively reasonable and good faith belief to that effect.”  . . .  A retaliation claimant therefore “does not need to oppose actual violations of Title VII in order to be protected from retaliation.” . . .

The dispute at the center of this case lies at the intersection of these two concepts. In alleging that [the employer] retaliated against her for opposing sexual assault, [The plaintiff] can succeed on her retaliation claim even if [the guard’s] conduct was not, as a legal or factual matter, sexual assault. But [she] must prove that she had a reasonable and good-faith belief that the conduct of which she complained was unlawful under Title VII. In other words, she must show that her belief that she was raped was reasonable and in good faith.

Importantly, the plaintiff was not required to prove that she was the victim of a sexual assault, but she was

required to demonstrate her reasonable and good-faith belief that [the guard’s] conduct violated Title VII. And [the employer]  was entitled to introduce evidence rebutting [her] alleged good-faith belief in the purported violative conduct she had reported, including evidence that [she] had consented to the sexual encounter, because such evidence was directly relevant to the reasonableness of [her] belief in whether Title VII prohibits that conduct. . . . 

 . . . . But our inquiry is not whether a rape violates Title VII (it does)—our inquiry is whether [she] had a good-faith belief that [he] raped her at work. Therefore, although we need not determine whether [he] raped [her], we must consider whether [she] “held an objectively reasonable and good faith belief” that she reported a legitimate rape. . . .

To be sure, we have noted that a lack of reasonable and good-faith belief may stem from “an unreasonable mistake of law.” Wasek, 682 F.3d at 469. And a retaliation plaintiff could make an unreasonable mistake of law by believing that conduct outside the scope of Title VII’s protections was conduct falling within the statute’s protections. But we have also stated that a plaintiff may fail to satisfy the reasonable and good-faith belief standard where “there are not facts from which a plaintiff could have reasonably believed that a violation occurred.” Id. And while we have yet explicitly to so hold, several of our sister circuits have made clear that Title VII retaliation plaintiffs do not engage in protected conduct when they make a false, fabricated, or malicious complaint of unlawful conduct because such plaintiffs do not reasonably and in good faith believe in the truth of their complaint.  . . . (emphasis added).

 . . . . The district court thus did not err in concluding that, in proving her retaliation claim to a jury, Graf was required to demonstrate that she reasonably and in good faith believed that, when she made her complaint against Ogle, she was reporting a rape. “Whether she actually held such a belief, a question of credibility,” was necessarily “left to [the] jury.” 

The Court agreed that propensity evidence must still be excluded as would reputational evidence.  What was relevant was her subjective belief as evidenced by her own actions with the security guard.

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.