Introduction

This published Tenth Circuit decision squarely addresses whether the Supreme Court’s 2024 decision in Muldrow v. City of St. Louis—which rejected “heightened harm” thresholds for discrete-transfer claims under Title VII—also lowers the longstanding “severe or pervasive” requirement for hostile work environment claims. The court answers no, holding that Muldrow does not abrogate, dilute, or otherwise modify the Supreme Court’s hostile-environment framework established in Meritor, Harris, Morgan, and Oncale. The court also declines to credit an internal Army investigation’s characterization of a “hostile” or “toxic” workplace as legally dispositive, and finds the appellant’s argument for treating the report more favorably at summary judgment waived for lack of developed authority.

The parties are Paul D. Russell, a civilian Army employee at Irwin Army Community Hospital (Fort Riley, Kansas), and Daniel Driscoll, Secretary of the Army. Russell alleged sex-based hostile work environment under Title VII arising from actions taken by his female supervisor, Major Tamara Tran. The district court granted summary judgment for the Army, concluding the conduct was not sufficiently severe or pervasive. On appeal, Russell principally argued that Muldrow lowered the threshold for Title VII injury and that the district court failed to draw reasonable inferences in his favor from an internal investigative report.

Summary of the Opinion

• The Tenth Circuit affirms summary judgment for the Army.
• Muldrow applies to discrete discriminatory acts (like transfers) and rejects heightened harm requirements in that context, but it does not alter the severe-or-pervasive standard governing hostile work environment claims.
• Even if Muldrow arguably suggested otherwise, lower courts must follow directly controlling Supreme Court hostile-environment precedents (Meritor, Harris, Morgan, Oncale) unless and until the Supreme Court explicitly says otherwise (citing Rodriguez de Quijas).
• Russell’s contention that the district court was required to draw additional favorable inferences from the Army’s internal investigation report is waived for lack of developed legal authority.

Factual Background and Procedural History

Russell served in the hospital’s medical logistics division, acting as division chief from May 2017 to November 2018, when Major Tamara Tran became division chief. The record (as recounted by the district court in the light most favorable to Russell) included:

• Gender-segregated meetings and different reading assignments for men and women; comments on underrepresentation of women in leadership.
• Different access protocols: women could meet Tran without prior appointments; men generally had to schedule.
• Actions directed at Russell, including dismissing his transitional assistance, public criticism of decisions made during his time as acting chief, instructing him to change his email signature, removing him from a leadership distribution list, copying others on an email about a personal financial matter (which he perceived as humiliating), and seeking to appoint a non-supervisory woman as acting chief during her maternity leave rather than Russell.

An internal investigation initiated by Tran’s supervisor concluded that Tran violated the Army’s equal-opportunity policy by discriminating on the basis of gender and described the workplace as “hostile”/“toxic.” The investigation cleared Russell of wrongdoing. After exhausting administrative remedies, Russell sued under Title VII, claiming a hostile work environment. The district court granted summary judgment for the Army, holding the conduct was not severe or pervasive enough to be actionable. Russell appealed under 28 U.S.C. § 1291.

Analysis

1) Precedents Cited and Their Roles

• Title VII, 42 U.S.C. § 2000e-2(a)(1): Prohibits discrimination “with respect to compensation, terms, conditions, or privileges of employment” because of protected characteristics, including sex. The case hinges on how “terms and conditions” are affected in different Title VII theories.
• National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002): Distinguishes “discrete discriminatory acts” (e.g., termination, transfer, denial of promotion) from “hostile work environment” claims, which involve repeated conduct. The Tenth Circuit uses Morgan’s taxonomy to situate Muldrow within the discrete-act category, preserving the conceptual separation for hostile environment claims.
• Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986) and Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993): Establish that hostile environment harassment is actionable only if sufficiently “severe or pervasive” to alter the conditions of employment and create an abusive working environment. These cases provide the controlling standard the Tenth Circuit insists remains intact.
• Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998): Warns that Title VII is not a “general civility code,” underscoring that the severe-or-pervasive filter is “crucial” to prevent trivial workplace slights from becoming federal cases. The Tenth Circuit invokes this rationale to reject lowering the hostile-environment threshold.
• Muldrow v. City of St. Louis, 601 U.S. 346 (2024): Rejects “heightened harm” requirements (e.g., “significant” or “material” disadvantage) for discrete-action claims such as discriminatory transfers; the plaintiff need show “some injury” leaving her “worse off,” even if pay and rank remain the same. The Tenth Circuit holds that Muldrow does not rewrite the separate hostile-environment framework.
• Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477 (1989): Directs lower courts to follow controlling Supreme Court precedent even if later decisions arguably undermine its reasoning, unless the Supreme Court expressly overrules it. This principle of vertical stare decisis bolsters the Tenth Circuit’s refusal to broaden Muldrow.
• Greer v. City of Wichita, 943 F.3d 1320 (10th Cir. 2019): Articulates the de novo standard of review for summary judgment and the requirement to draw reasonable inferences in favor of the non-movant. Framed the procedural lens for reviewing the district court’s ruling.
• Eateries, Inc. v. J.R. Simplot Co., 346 F.3d 1225 (10th Cir. 2003): A party forfeits an issue if not supported with legal authority or argument. The court relies on this to deem Russell’s “investigative report inference” argument waived.
• Out-of-circuit treatments of Muldrow and hostile environment:
  • Hansley v. DeJoy (4th Cir. 2024, unpublished): Aligns with the Tenth Circuit’s view, though briefly and without full engagement with the issue.
  • Dike v. Columbia Hospital Corp. of Bay Area (5th Cir. 2025, unpublished): Rejects applying Muldrow to hostile environment, in part due to underdeveloped briefing.
  • McNeal v. City of Blue Ash, 117 F.4th 887 (6th Cir. 2024): Suggests Muldrow’s “worse off” formulation informs hostile-environment analysis, implying no need to show “significant” harm. The Tenth Circuit expressly disagrees, identifying conceptual circularity and the risk of collapsing categories.

2) Legal Reasoning

The court structures its analysis around two discrete appellate arguments and resolves each as follows:

1. Muldrow’s reach does not extend to hostile work environment doctrine.
   • Category preservation: Citing Morgan, the court emphasizes that hostile environment claims are “different in kind” from discrete acts. They depend on cumulative, repeated conduct rather than a single adverse decision. As a result, the legal filter is different: “severe or pervasive” conduct that alters the conditions of employment is required for hostile environment claims (Meritor; Harris), and that filter is “crucial” to prevent Title VII from becoming a general civility code (Oncale).
   • No implicit overruling: Even if one could read Muldrow as in tension with earlier hostile environment cases, Rodriguez de Quijas requires lower courts to follow the precedent that directly controls. The Supreme Court has not announced that Muldrow overruled Meritor/Harris/Oncale/Morgan for harassment claims.
   • Conceptual incoherence in extending “worse off” to harassment: The court explains that asking whether a hostile environment left an employee “worse off” is circular: by definition a legally cognizable hostile environment must alter the conditions of employment. Substituting the “some injury” test for discrete actions would gut the distinguishing element of harassment claims and collapse Title VII’s categories, a result the court rejects.
   • Inter-circuit positioning: The Tenth Circuit acknowledges the Sixth Circuit’s McNeal but expressly disagrees, aligning more closely with the Fourth and Fifth Circuits’ unpublished analyses and the Supreme Court’s harassment line.
2. Summary-judgment inferences from the internal investigation report were not preserved.
   • The internal report found gender discrimination and described the workplace as “hostile”/“toxic.” The district court declined to adopt those labels because the report did not apply the governing “severe or pervasive” legal test.
   • On appeal, Russell “acknowledged” that the district court’s concern was correct but argued the court should still have drawn favorable inferences from the report. The Tenth Circuit holds this argument waived for lack of legal development: Russell cited no authority establishing that an employer’s internal investigative conclusions—especially legal characterizations untethered to the controlling standard—must be credited at summary judgment in the way he proposed.

3) Impact and Significance

This opinion establishes a clear, published Tenth Circuit rule: after Muldrow, plaintiffs alleging hostile work environment must still satisfy the “severe or pervasive” standard. The decision has several immediate implications:

• Litigation strategy in the Tenth Circuit: Plaintiffs cannot rely on Muldrow’s “some injury” or “worse off” language to relax the harassment threshold. They must marshal evidence of frequency, severity, humiliation or threat, and actual alteration of working conditions. Isolated slights, differential access, or modest exclusions—without more—remain unlikely to survive summary judgment.
• Evidence from internal investigations: Agency findings that workplace conditions were “hostile” or “toxic” carry limited weight if they do not apply the legal standard or are conclusory. Parties must connect such findings to admissible facts supporting the severe-or-pervasive elements. Moreover, arguments about the evidentiary treatment of such reports must be properly briefed with supporting authority to avoid waiver.
• Doctrinal clarity and circuit friction: The Tenth Circuit’s published rejection of McNeal’s approach contributes to an emerging cross-circuit disagreement about Muldrow’s reach. While the 4th and 5th Circuits (in unpublished decisions) align with the Tenth, the Sixth Circuit’s published view points the other way. This divergence could invite Supreme Court clarification.
• Preserving Morgan’s taxonomy: By keeping hostile environment and discrete acts doctrinally distinct, the Tenth Circuit maintains structured pleading and proof expectations, consistent with the Supreme Court’s design in Morgan.

Complex Concepts Simplified

• Discrete discriminatory act vs. hostile work environment:
  • Discrete act: A particular employment decision or event (e.g., transfer, termination, denial of promotion). After Muldrow, a plaintiff need show only “some injury” that left them “worse off” in terms or conditions of employment; no “significant harm” threshold applies.
  • Hostile environment: A pattern of discriminatory harassment that is sufficiently severe or pervasive to alter the conditions of employment and create an abusive environment. This is a higher, qualitatively different standard that looks at the whole course of conduct, not an isolated decision.
• “Severe or pervasive” requirement: Harassment must be either especially serious (severe) or sufficiently frequent/persistent (pervasive) to change the conditions of employment. Courts assess factors such as:
  • Frequency and duration of the conduct.
  • Severity (e.g., humiliation, threats, or interference with work).
  • Whether the conduct was physically threatening or merely offensive.
  • Objective and subjective impact on the work environment.
• Vertical stare decisis (Rodriguez de Quijas): Lower courts must follow Supreme Court precedents that directly control, even if later Supreme Court decisions raise questions about their reasoning. Only the Supreme Court can overrule its own precedents.
• Summary judgment and “reasonable inferences”: A court must view evidence in the light most favorable to the non-movant. But general labels or conclusory characterizations—especially those not tied to the legal standard—do not substitute for the required elements. Arguments about how to treat certain evidence must be supported with legal authority, or they may be deemed waived.
• Internal investigations vs. legal standards: Organizational findings of “hostile” or “toxic” conditions may reflect policy violations but are not dispositive of the Title VII legal standard unless the facts underlying those findings establish severity or pervasiveness as defined by Meritor and Harris.

What the Case Does Not Decide

• The court does not reweigh the entire record to determine whether the conduct, under the correct legal standard, was in fact severe or pervasive; it affirms because Russell’s legal challenges fail (Muldrow does not apply; the “investigative report” argument is waived).
• The court does not decide the admissibility or weight of internal investigation reports in general; it simply notes that the argument for special treatment here was undeveloped.

Conclusion

Russell v. Driscoll is a significant, published clarification from the Tenth Circuit: Muldrow’s “no heightened harm” rule for discrete acts does not extend to hostile work environment claims. The “severe or pervasive” standard remains the governing test for harassment under Title VII in this circuit, anchored by Meritor, Harris, Morgan, and Oncale, and guarded by vertical stare decisis. The opinion underscores that plaintiffs must substantively meet that standard with well-developed legal arguments and evidence—policy labels and internal characterizations of the workplace will not carry the day absent a showing that the conduct altered the conditions of employment. In doing so, the Tenth Circuit preserves the doctrinal line between discrete-action discrimination and hostile-environment harassment, resists an expansive reading of Muldrow, and contributes a clear voice to an emerging inter-circuit dialogue that may ultimately call for Supreme Court resolution.