Isolated Rebukes and Speculative Fears Do Not Establish § 1981 Retaliation or Constructive Discharge

1. Introduction

In Cheryl Burton v. Centre College of Ky., the Sixth Circuit considered whether confrontational responses to an employee’s concerns about racial discrimination plausibly constituted retaliation or made her resignation a constructive discharge. The court held that the particular exchanges alleged—two managerial rebukes and an ambiguous response to a concern about future targeting—did not satisfy either claim’s objective threshold.

Cheryl Burton, an African-American licensed practical nurse, worked for Centre College of Kentucky under an at-will employment agreement from 2017 to 2023. She alleged a campus culture in which African-American employees and students experienced discrimination. She publicly criticized that culture, supported student advocacy, and raised concerns about the college’s hiring practices.

In 2021, Burton accepted another job and told Kay Drake, Centre’s Vice President of Human Resources, that she intended to leave because of racism at the college. Drake persuaded her to remain by promising cultural change and a raise. Burton alleged that the promised cultural improvement did not follow.

The events immediately preceding Burton’s resignation occurred in August 2023. At a college conference, she publicly asked whether human-resources staff would receive implicit-bias training. About a week later, Drake visited Burton’s office and angrily questioned why she had asked. Burton explained her concerns about hiring and the discomfort experienced by Black people on campus.

Burton subsequently discussed that encounter with Barbara LoMonaco, Centre’s Vice President for Student Life. According to the complaint, LoMonaco agreed that Drake should not have confronted Burton in that manner, but said Burton had “no right” to ask the training question and remarked that the college could not hire every Black applicant. When Burton repeated her husband’s warning that she would become a target, LoMonaco paused and responded, “Well . . . .”

Burton feared retaliation, pretextual dismissal, and possible consequences for her professional license. She resigned and sued Centre, Drake, and LoMonaco under 42 U.S.C. § 1981, alleging retaliation and constructive discharge.

The district court dismissed her complaint because it concluded that Kentucky at-will employment lacked the contractual relationship necessary for a § 1981 claim. The Sixth Circuit expressly declined to decide that question. Instead, it assumed statutory coverage and affirmed because the complaint did not plausibly allege materially adverse retaliation or objectively intolerable working conditions.

2. Summary of the Opinion

The court’s decision rests on five principal conclusions:

1. The district court’s statutory-coverage rationale was unnecessary to the appeal. Even assuming § 1981 applied to Burton’s employment, her allegations were insufficient.
2. The alleged managerial responses were not materially adverse. On the pleaded facts, the court characterized them as minor affronts rather than conduct that would deter a reasonable worker from opposing discrimination.
3. LoMonaco’s ambiguous response was not a sufficiently concrete threat. Neither that response nor the surrounding circumstances plausibly communicated threatened discipline, termination, or professional harm.
4. The working conditions were not objectively intolerable. The limited exchanges did not resemble sustained harassment, degrading work assignments, or other circumstances that could compel a reasonable employee to resign.
5. Fear of future deterioration did not establish constructive discharge. Burton alleged apprehension about what might happen, not an objectively compelled choice between resignation and an existing intolerable condition or communicated termination.

The court also assumed, without deciding, that constructive discharge could be pleaded as an independent cause of action. Thus, the affirmance resolved the sufficiency of Burton’s allegations while leaving two broader legal questions open.

3. Legal Reasoning

A. Plausibility Review and Affirmance on Alternative Grounds

Because the case arose on a motion to dismiss, the court accepted well-pleaded factual allegations as true and viewed them favorably to Burton. That requirement did not compel the court to accept every inference Burton drew from those facts.

The distinction was decisive. The court accepted that Drake appeared angry, that Burton became distressed, and that LoMonaco made the alleged remarks. It nevertheless concluded that those facts did not reasonably support the legal inferences that Burton had experienced materially adverse retaliation or had been compelled to resign.

The appellate court reviewed the dismissal de novo, meaning it independently assessed the complaint’s legal sufficiency. Its ability to affirm on an alternative ground allowed it to avoid deciding whether Kentucky at-will employment falls within § 1981. Consequently, the affirmance should not be read as approval of the district court’s statutory-coverage holding.

B. Retaliation Requires Objective Material Adversity

The opinion identified four elements of retaliation: protected activity, the defendants’ knowledge of that activity, materially adverse action, and a causal connection. Only material adversity was disputed on appeal. The court therefore did not independently settle whether every aspect of Burton’s advocacy qualified as protected activity or whether the other elements were established.

Material adversity asks whether the challenged conduct could dissuade a reasonable worker from making or supporting a discrimination complaint. This standard is broader than an inquiry into whether pay, rank, or formal employment conditions changed. Nevertheless, it excludes ordinary workplace slights and minor annoyances.

Burton’s allegations failed at this boundary. The court regarded Drake’s angry questioning and LoMonaco’s critical remarks as rebukes rather than actionable deterrents. It contrasted those encounters with reassignment to harder work, unpaid suspension, repeated disciplinary write-ups, heightened scrutiny, and sustained intimidation.

Those comparisons did not establish a checklist of indispensable employment consequences. A retaliation claim need not involve a demotion or lost pay. Rather, the examples demonstrated the objective seriousness missing from this complaint.

C. Ambiguity and Context Did Not Supply a Plausible Threat

The court separately examined whether LoMonaco’s “Well . . .” transformed the exchanges into materially adverse intimidation. It concluded that this ambiguous response did not amount to a genuine threat comparable to explicit warnings of blacklisting, impending dismissal, or the need to find another job.

Context remained relevant. Drake headed human resources; her visit was allegedly unusual; and Burton had a history of raising racial concerns. The court acknowledged those circumstances but found them insufficient to support an inference that another complaint would jeopardize Burton’s employment or professional standing.

The court also observed that Drake had previously responded to Burton’s concerns by persuading her to stay. That fact formed part of the court’s contextual assessment; it does not establish that an employer’s earlier receptiveness necessarily defeats a later retaliation claim.

The resulting principle is fact-specific: these remarks, in this pleaded context, did not plausibly communicate a materially adverse threat. The opinion does not establish that indirect language or managerial criticism can never support retaliation.

D. Constructive Discharge Requires More Than a Reasonable Desire to Leave

Constructive discharge concerns a resignation that is effectively compelled by working conditions so intolerable that a reasonable person in the employee’s position would feel forced to quit. Its demanding standard distinguishes an objectively compelled departure from a resignation prompted by understandable distress or concern.

The court found no sufficiently intolerable conditions here. Burton’s immediate theory rested on a small number of exchanges, not sustained harassment, degrading assignments, reduced compensation, or comparable deterioration in her work situation.

Her professional-licensure concern did not change the analysis. She did not allege that Centre required her to engage in unlawful or professionally disqualifying work. Instead, she feared that officials might later take action affecting her license. The court distinguished an existing threat arising from required conduct from speculation about future employer misconduct.

E. Anticipating Retaliation Is Not the Same as Being Compelled to Resign

The timing and source of Burton’s fears were important. She resigned shortly after the exchanges because she believed future retaliation or pretextual termination might follow. Under the precedent applied by the court, an employee cannot establish constructive discharge merely by anticipating that conditions will worsen.

A different analysis may apply where an employer communicates that termination is imminent. Here, however, no Centre official allegedly told Burton that she would be fired or disciplined. Her husband’s warning was not an employer communication, and LoMonaco’s failure to reassure her was not equivalent to announcing that termination was approaching.

This reasoning does not require employees to await actual termination in every case. It requires allegations supporting an objectively compelled resignation rather than an inference of inevitability based chiefly on apprehension.

4. Precedents Cited and Their Influence

A. Pleading Standards and Appellate Review

Ashcroft v. Iqbal, 556 U.S. 662 (2009)

This decision supplied the governing plausibility standard. A complaint must contain factual material supporting a reasonable inference of liability, not merely a conceivable claim. The Sixth Circuit relied on that distinction when holding that the managerial exchanges and their context did not plausibly establish actionable retaliation.

In re Ford Motor Co. F-150 & Ranger Truck Fuel Econ. Mktg. & Sales Pracs. Litig., 65 F.4th 851 (6th Cir. 2023)

This case supplied the rule requiring acceptance of well-pleaded facts and a plaintiff-favorable reading. It framed the analysis as one of legal sufficiency, not a factual determination that Burton’s account was untrue.

Gerboc v. ContextLogic, Inc., 867 F.3d 675 (6th Cir. 2017)

This precedent established de novo review and the authority to affirm on alternative grounds. It enabled the panel to affirm without resolving the district court’s conclusion about at-will employment and § 1981.

Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365 (6th Cir. 2011)

The court used this decision to reinforce the requirement that pleaded facts permit a reasonable inference of liability. It supported the conclusion that Burton’s allegations did not cross the plausibility threshold.

B. Retaliation and Materially Adverse Action

Boxill v. O'Grady, 935 F.3d 510 (6th Cir. 2019)

This case supplied the four-element retaliation framework. Its principal function was to identify material adversity as the disputed element, narrowing the appellate inquiry.

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)

This Supreme Court decision supplied the central test: whether the action could deter a reasonable worker from pursuing a discrimination complaint. It also established that retaliation extends beyond changes to employment terms while excluding petty slights and minor annoyances. Its examples of more arduous reassignment and unpaid suspension helped illustrate the difference between significant deterrence and ordinary workplace friction.

Billings v. Town of Grafton, 515 F.3d 39 (1st Cir. 2008)

This was the panel’s closest factual analogy. An administrator’s private berating of an employee who had complained about his conduct was, considered individually, insufficiently material. Subsequent reprimands, compelled use of personal time for a deposition, a less prestigious transfer, and threatened further discipline could support retaliation.

The distinction mattered: the court analogized Burton’s encounters to the isolated upbraiding, not to the more substantial sequence that followed in Billings v. Town of Grafton. The precedent therefore supports contextual differentiation, not blanket immunity for managerial reprimands.

Laster v. City of Kalamazoo, 746 F.3d 714 (6th Cir. 2014)

This decision served two purposes. For retaliation, it illustrated an accumulating pattern of intimidation, heightened scrutiny, and routine reprimands—features absent from Burton’s complaint. For constructive discharge, it recognized that an employer’s communication of impending termination may make resignation effectively compelled, while rejecting an assumed termination unsupported by employer communication.

Hubbell v. FedEx SmartPost, Inc., 933 F.3d 558 (6th Cir. 2019)

The court cited this case as another example of materially adverse conduct involving close surveillance, monitoring, and repeated write-ups. It demonstrated how a sustained pattern can differ materially from two isolated conversations.

Taylor v. Geithner, 703 F.3d 328 (6th Cir. 2013)

Because two written reprimands were insufficient in that case, the panel reasoned that Burton’s two alleged verbal upbraidings likewise fell short. The comparison reinforced the conclusion that criticism, without sufficiently serious consequences or context, does not automatically become materially adverse.

Monaghan v. Worldpay US, Inc., 955 F.3d 855 (11th Cir. 2020)

This decision provided a contrast involving concrete threats: the employee was told she had “cut her own throat,” would be blackballed, and had numbered days. Those statements helped explain why LoMonaco’s ambiguous response did not carry comparable objective significance.

Queen v. City of Bowling Green, 956 F.3d 893 (6th Cir. 2020)

The court contrasted Burton’s allegations with a supervisor’s statement that an employee should seek employment elsewhere. That more explicit employment-related warning supported material adversity in a way the remarks alleged here did not.

C. Constructive Discharge: Intolerability and Sustained Conditions

Green v. Brennan, 578 U.S. 547 (2016), and Pennsylvania State Police v. Suders, 542 U.S. 129 (2004)

These Supreme Court authorities supplied the objective constructive-discharge standard: working conditions must be so intolerable that a reasonable person would feel compelled to resign. The opinion quoted the formulation through Green v. Brennan, which in turn quoted Pennsylvania State Police v. Suders.

Tchankpa v. Ascena Retail Grp., Inc., 951 F.3d 805 (6th Cir. 2020)

This case emphasized that intolerability is a demanding standard. It supported the distinction between an upsetting workplace encounter and conditions legally sufficient to make resignation involuntary.

Logan v. Denny's Inc., 259 F.3d 558 (6th Cir. 2001)

This decision identified relevant indicators, including demotion, reduced pay or responsibilities, degrading reassignment, and badgering, harassment, or humiliation. Those factors provided a framework for evaluating whether Burton’s conditions objectively compelled departure.

Groening v. Glen Lake Cmty. Schs., 884 F.3d 626 (6th Cir. 2018)

The panel relied on this case when concluding that a few isolated incidents did not establish constructive discharge. It was a direct authority for rejecting the limited exchanges alleged here.

McKelvey v. Sec'y of U.S. Army, 450 F. App'x 532 (6th Cir. 2011)

This case involved nine months of repeated harassment and abusive disability-related insults directed at a disabled veteran. The panel used it as a contrast showing the sustained severity missing from Burton’s allegations.

Moore v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073 (6th Cir. 1999)

Persistent isolation, continuing day after day and week after week, supported constructive discharge there. Its role was to illustrate the difference between prolonged oppressive conditions and isolated confrontations.

D. Professional Risk, Anticipated Termination, and the Claim’s Legal Status

Smith v. LHC Grp., Inc., 727 F. App'x 100 (6th Cir. 2018)

Burton invoked this case because it involved professional licensure. The court distinguished it: the employee there faced a choice between resignation and overlooking fraud that endangered her license and exposed her to prosecution. Burton alleged no comparable requirement to participate in or tolerate unlawful work; her concern involved possible future retaliation.

Agnew v. BASF Corp., 286 F.3d 307 (6th Cir. 2002)

This precedent supplied the rule that resignation based on apprehension of future deterioration does not establish constructive discharge. Its warning against assuming the worst directly addressed Burton’s decision to resign before any alleged discipline or communicated termination.

Savel v. MetroHealth Sys., 96 F.4th 932 (6th Cir. 2024)

This decision illustrated explicit employer communication of impending dismissal: employees denied religious vaccination exemptions were told they could not appeal and would be fired if they remained unvaccinated. Burton alleged no similarly definite ultimatum.

Funk v. City of Lansing, 821 F. App'x 574 (6th Cir. 2020)

This case rejected a constructive-discharge theory resting partly on a third party’s statements that led an employee to anticipate firing. It supported the distinction between Burton’s husband’s warning and a termination message attributable to Centre.

Leath v. Collins, 2026 WL 228827 (6th Cir. Jan. 28, 2026)

Cited in a footnote, this decision supported leaving unresolved whether constructive discharge is an independent cause of action. It noted an earlier unpublished decision that had implicitly permitted such a claim, but did not settle the issue. The panel adopted the same assumption-without-decision approach.

5. Impact and Limits

A. A Fact-Specific, Unpublished Application

The opinion is designated “not recommended for publication.” Its significance is therefore best understood as an unpublished application of established standards, not a new published resolution of § 1981’s coverage or constructive discharge’s independent legal status.

Its principal contribution is the combined treatment of isolated criticism, ambiguous managerial language, subjective fear, and professional concerns. Together, those allegations still required an objective basis for material adversity or compelled resignation.

B. Implications for Future Pleadings

Employees advancing similar claims will need factual allegations explaining why the challenged response was objectively consequential. Depending on the circumstances, relevant facts may include specific threats, repeated scrutiny, disciplinary escalation, changed duties, exclusion, or an express ultimatum.

Such facts are examples, not mandatory elements. The opinion does not require a completed firing or financial loss before retaliation becomes actionable, nor does it foreclose a claim arising from a sufficiently serious isolated incident.

C. Retaliation and Constructive Discharge Remain Distinct

An act may be sufficiently deterrent to constitute retaliation without making employment so intolerable that resignation is compelled. Burton failed both standards, but the standards should not be collapsed into one another. Constructive discharge demands an additional explanation of why continued employment was objectively untenable.

D. No General Approval of the Alleged Conduct

The court’s conclusion does not endorse managerial hostility toward discrimination complaints. Nor does it adjudicate whether Centre’s broader campus culture or hiring practices were discriminatory. It addresses whether this complaint plausibly alleged the particular retaliation and constructive-discharge claims presented.

E. Important Questions Remain Open

• Whether Kentucky at-will employment supplies the contractual relationship required for § 1981 protection.
• Whether constructive discharge is independently actionable, rather than operating within another substantive discrimination or retaliation claim.

Neither issue can properly be treated as resolved by this affirmance.

6. Complex Concepts Simplified

Section 1981

A federal civil-rights statute protecting equality in contractual relationships against racial discrimination. Burton invoked it for employment-related retaliation; the court assumed, rather than decided, that her employment relationship qualified.

At-will employment

An employment relationship generally terminable by either side, subject to legal restrictions. The unresolved question here was whether that relationship met § 1981’s contractual requirement.

Plausible pleading

A complaint must describe facts supporting a reasonable inference of a legal violation. It need not prove the case, but a feared possibility alone is insufficient.

Materially adverse action

Conduct serious enough that it could discourage a reasonable worker from opposing discrimination. It need not change pay or job title, but ordinary slights do not qualify.

Constructive discharge

A resignation treated as effectively forced because objectively intolerable working conditions compelled the employee to leave.

Objective versus subjective assessment

Subjective assessment concerns the employee’s actual feelings. Objective assessment asks how a reasonable employee in the same circumstances would respond. Genuine distress is relevant context, but does not itself establish either claim.

Pretextual termination

A firing purportedly based on a legitimate explanation that conceals an unlawful reason. Burton feared such a firing; the court found no allegation that it had been communicated or had occurred.

Affirmance on alternative grounds

An appellate court upholds the judgment for a legally sufficient reason different from the trial court’s explanation.

Assuming without deciding

The court temporarily accepts a proposition to assess another issue, without establishing that proposition as law.

7. Conclusion

The Sixth Circuit affirmed because Burton’s allegations did not plausibly show either objectively deterrent retaliation or working conditions that compelled resignation. Two isolated rebukes, an ambiguous response, and fear of future professional harm were insufficient on the facts pleaded.

The opinion’s broader significance lies in its insistence on objective factual support while preserving the breadth of retaliation law beyond formal employment penalties. Its limits are equally important: it neither resolves § 1981 coverage for Kentucky at-will employees nor decides whether constructive discharge is independently actionable.