Appellate Forfeiture and Pretext in Performance-Improvement-Plan Discrimination Claims (Noel v. Challenge Manufacturing Holdings)

Introduction

In Jerreece Noel v. Challenge Manufacturing Holdings, Inc. (6th Cir. Aug. 6, 2026) (unpublished), Jerreece Noel, an African American woman working in HR at Challenge’s Pontiac, Michigan plant, alleged race discrimination, sex discrimination, retaliation, and a hostile work environment under Title VII, 42 U.S.C. § 1981, and Michigan law. Noel contended that unfair treatment escalated after she complained internally and filed a discrimination charge, culminating in a performance improvement plan (PIP), intermittent and then full-time leave, and ultimately her resignation, which she characterized as constructive discharge.

The central issues on appeal were whether Noel produced sufficient evidence to (1) show that Challenge’s stated reasons for its actions—attendance and performance deficiencies—were pretext, and (2) sustain hostile-work-environment claims despite the district court’s alternative holding on employer liability.

Summary of the Opinion

The Sixth Circuit affirmed summary judgment for Challenge. It held:

  • Noel’s discrimination and retaliation claims failed because she lacked evidence that Challenge’s neutral rationale (attendance and performance problems, including a significant backlog in tracking attendance points) was pretextual.
  • Noel forfeited arguments that various challenged actions (other than constructive discharge) were actionable adverse actions because she did not meaningfully brief them on appeal; and even assuming constructive discharge, her claims still failed for lack of evidence of improper motive.
  • Noel forfeited her hostile-work-environment claims by challenging only one of the district court’s two alternative grounds (severity), while not disputing the other (employer liability).

Analysis

Precedents Cited

1) Summary judgment posture and scope of review

  • Howell v. McCormick: The court reiterated that at summary judgment it must view genuine disputes in the nonmovant’s favor.
  • Hamm v. Pullman SST, Inc.: The court applied de novo review of summary-judgment rulings and later relied on it for hostile-environment elements and statutory-framework assumptions.

2) One framework across Title VII, § 1981, and Michigan law (and forfeiture of differences)

  • Hrdlicka v. Gen. Motors, LLC and Rogers v. Henry Ford Health Sys.: Cited for the practice of using the same analytical framework across Title VII, § 1981, and Michigan law in many employment cases.
  • Hamm v. Pullman SST, Inc. and Poplar v. Genesee Cnty. Rd. Comm'n: Used to explain that Noel forfeited any argument that § 1981 or Michigan law required different rules because she briefed the case solely under Title VII’s framework.

3) “Adverse action” standards—discrimination vs. retaliation—and appellate forfeiture

  • Muldrow v. City of St. Louis: For Title VII discrimination, an employee may challenge actions causing “some harm” to an identifiable term or condition of employment.
  • Burlington N. & Santa Fe Ry. Co. v. White: For retaliation, a plaintiff must show a “materially adverse” action causing “significant” harm.
  • Blick v. Ann Arbor Pub. Sch. Dist.: Critical procedural holding—when an appellant does not brief an issue (here, whether various acts qualified as adverse actions), the argument is forfeited; and when a district court offers independent alternative grounds, failing to challenge one forfeits the claim.

4) Causation rules: motivating factor vs. but-for

  • Univ. of Tex. Sw. Med. Ctr. v. Nassar: Retaliation requires but-for causation.
  • The court contrasted this with Title VII discrimination’s “motivating factor” rule (codified in § 2000e-2(m)).

5) Direct vs. circumstantial evidence

  • Ondricko v. MGM Grand Detroit, LLC and Spengler v. Worthington Cylinders: Cited for the split between direct and circumstantial evidence frameworks.
  • Shazor v. Pro. Transit Mgmt., Ltd.: Direct evidence requires proof without inferential steps as to discriminatory animus.
  • Williams v. Memphis Light, Gas & Water and Richardson v. Wal-Mart Stores, Inc.: Used to reject Noel’s “Pontiac hiring” testimony as direct evidence because it was not tied to an adverse action against Noel and required additional inferences to connect it to race.

6) McDonnell Douglas and pretext methods

  • McDonnell Douglas Corp. v. Green and Bashaw v. Majestic Care of Whitehall, LLC: The court applied the burden-shifting framework and emphasized it could proceed directly to pretext because Challenge articulated a legitimate reason.
  • Pio v. Benteler Auto. Corp.: Cited alongside Bashaw for the legitimacy of performance/attendance concerns as nondiscriminatory reasons.
  • Dews v. A.B. Dick Co.: The court used the canonical three pretext routes—(i) no basis in fact, (ii) did not actually motivate, (iii) insufficient to warrant the action.

7) Evidence evaluation: admissions, objective records, temporal proximity, comparators

  • Most v. BWXT Nuclear Operations Grp., Inc.: Supported reliance on Noel’s admission that she fell behind.
  • Miles v. S. Cent. Hum. Res. Agency, Inc. and Cecil v. Louisville Water Co.: The court rejected speculation as insufficient to rebut objective evidence (card-swipe records) showing tardiness.
  • Upshaw v. Ford Motor Co.: Used to reject the “trumped up charges” theory where tangible performance issues existed.
  • Howard v. Cherokee Health Sys. (quoting Vereecke v. Huron Valley Sch. Dist.) and Montell v. Diversified Clinical Servs.: Temporal proximity rarely suffices alone; months-long gaps undermine causal inference, especially compared with Montell’s one-day gap plus other evidence.
  • Maben v. Sw. Med. Clinic, Brown v. Excelda Mfg. Co., and Miles v. S. Cent. Hum. Res. Agency, Inc.: Comparator evidence fails when misconduct is not of the same type; different conduct supports different treatment.
  • Boykin v. Family Dollar Stores of Mich., LLC (quoting Watson v. City of Cleveland): Subjective belief of discrimination generally cannot overcome a legitimate reason without evidence of intent.

8) Hostile work environment and employer liability; forfeiture of alternative grounds

  • Vance v. Ball State Univ. and Harris v. Forklift Sys., Inc.: Anchored the hostile-work-environment doctrine and its severity requirement.
  • Bivens v. Zep, Inc. and Hamm v. Pullman SST, Inc.: Provided the elements applied in the Sixth Circuit and emphasized that plaintiffs must show both severity and a basis for employer liability.
  • Blick v. Ann Arbor Pub. Sch. Dist. and White Oak Prop. Dev., LLC v. Washington Township: Controlled the forfeiture outcome; Noel’s failure to brief employer liability (an independent alternative ground) required affirmance without reaching the merits.

Legal Reasoning

  1. Clarifying what was actually appealed (and what was forfeited). The court treated Noel’s briefing as abandoning any argument that discrete actions—job-fair photo, schedule issues, performance review, denial of work-from-home, PIP—were actionable adverse actions, except for her asserted constructive discharge. Applying Blick v. Ann Arbor Pub. Sch. Dist., the court refused to consider unbriefed adverse-action theories.
  2. Causation and proof structure. The court distinguished Title VII’s “motivating factor” standard for discrimination (as described via § 2000e-2(m) and Muldrow v. City of St. Louis) from retaliation’s but-for standard (Univ. of Tex. Sw. Med. Ctr. v. Nassar), but held the claims failed under either because Noel could not show pretext.
  3. No direct evidence; McDonnell Douglas applies. Noel’s “don’t hire people from Pontiac” testimony did not qualify as direct evidence under Shazor v. Pro. Transit Mgmt., Ltd. because it required inferential steps to connect to race and was not tied to any action against Noel (consistent with Williams v. Memphis Light, Gas & Water and Richardson v. Wal-Mart Stores, Inc.).
  4. Legitimate reason and pretext failure. Challenge’s proffered reasons—chronic tardiness/absences and falling behind on a “crucial” attendance-point system—were supported by objective records and Noel’s admission. Under Dews v. A.B. Dick Co.:
    • No basis in fact failed because card-swipe data and Noel’s admission supported Challenge’s critique.
    • Did not actually motivate failed because the timing was not tight (months between charge and PIP), and evidence showed attendance issues predated the charge (consistent with Howard v. Cherokee Health Sys. and Vereecke v. Huron Valley Sch. Dist.).
    • Insufficient to warrant failed because Noel’s comparator (Mahle working from home on weekends) was not similarly situated misconduct; it was different in kind and, in any event, the manager instructed Mahle to stop (consistent with Maben v. Sw. Med. Clinic and Brown v. Excelda Mfg. Co.).
  5. “Sham investigation” theory rejected by the record. The court emphasized Challenge’s repeated investigations and responsiveness (Savage and Heyboer interviewing multiple employees, examining circumstances, following up), viewing that responsiveness as inconsistent with hidden discriminatory or retaliatory motives.
  6. Hostile work environment resolved on forfeiture. Even if Noel could dispute severity, she had to overturn both district-court grounds. Because she did not brief employer liability, Blick v. Ann Arbor Pub. Sch. Dist. required affirmance.

Impact

  • Appellate practice impact (the case’s most concrete “rule”). The decision reinforces that in the Sixth Circuit, a plaintiff can lose on appeal purely by failing to brief: (a) why challenged actions meet the governing adverse-action standard; and (b) why each independent alternative ground is wrong. Hostile-environment plaintiffs, in particular, must brief both severity and employer liability when both are decided below.
  • Substantive employment-law impact. While not creating new doctrine, the opinion illustrates how employers’ reliance on objective attendance metrics, contemporaneous documentation, and consistent investigation can defeat pretext theories—especially where plaintiffs offer mainly subjective belief (see Boykin v. Family Dollar Stores of Mich., LLC).
  • Unpublished status. Labeled “NOT RECOMMENDED FOR PUBLICATION,” the opinion’s formal precedential force is limited, but its procedural forfeiture analysis and evidentiary approach are practically influential for litigants in summary-judgment and appellate briefing.

Complex Concepts Simplified

  • Summary judgment: The court decides whether a reasonable jury could rule for the plaintiff based on the evidence; it is not a trial.
  • Constructive discharge: A resignation treated like a firing if working conditions become so intolerable that a reasonable person would feel forced to quit.
  • Adverse employment action: For discrimination, an action causing “some harm” to terms/conditions of employment (Muldrow v. City of St. Louis); for retaliation, an action significant enough to deter protected activity (Burlington N. & Santa Fe Ry. Co. v. White).
  • Direct vs. circumstantial evidence: Direct evidence proves discriminatory intent without inference; circumstantial evidence requires inference, triggering the McDonnell Douglas framework.
  • McDonnell Douglas burden-shifting: A three-step method: prima facie case → employer’s legitimate reason → plaintiff proves pretext.
  • Pretext: Proof that the employer’s stated reason is a cover—because it is false, not the true motivator, or insufficient to justify the action.
  • Hostile work environment liability: Plaintiffs must show both serious harassment and a basis to hold the employer responsible (different standards for supervisors vs coworkers under Vance v. Ball State Univ.).
  • Forfeiture on appeal: If you do not argue an issue in your opening appellate brief, the court may treat it as abandoned (applied here via Blick v. Ann Arbor Pub. Sch. Dist.).

Conclusion

The Sixth Circuit affirmed summary judgment because Noel could not show that Challenge’s documented attendance and performance concerns were pretext for discrimination or retaliation, and because she forfeited key issues on appeal—most notably, employer liability for hostile work environment and adverse-action theories beyond constructive discharge. The opinion’s lasting significance is procedural as much as substantive: it highlights that employment plaintiffs must build evidence that can rebut objective performance rationales and must carefully brief every independent ground supporting the judgment they seek to overturn.