Post-Muldrow in the Sixth Circuit: “Some Harm” Suffices for Title VII Discrimination, But Profane “Employee Beef” on Social Media Is Not Protected Speech

Introduction

This published decision from the U.S. Court of Appeals for the Sixth Circuit addresses the intersection of modern workplace dynamics, social-media speech by public employees, and evolving Title VII standards. In GPat Patterson v. Kent State University, a tenured English professor who identifies as transgender brought multiple claims against Kent State, its Arts & Sciences Dean Mandy Munro‑Stasiuk, and School Director Julie M. Mazzei. The dispute arose after the university paused leadership decisions for a gender-studies center and major, and after Patterson posted a weeks-long series of profanity-laced tweets accusing colleagues and administrators of discriminatory motives and incompetence. Kent State then rescinded a course-load reallocation proposal and an English Department committee denied Patterson’s request to transfer tenure to the main campus.

On appeal, Patterson alleged Title VII sex discrimination and retaliation, First Amendment retaliation under 42 U.S.C. § 1983, and perceived-disability discrimination under Section 504 of the Rehabilitation Act. The district court granted summary judgment to the defendants. The Sixth Circuit affirmed across the board, clarifying several key doctrines:

In light of the Supreme Court’s decision in Muldrow v. City of St. Louis (2024), Title VII discrimination claims require only “some harm” to a term or condition of employment; the court flagged that the district court applied an outdated “materially adverse” standard but affirmed on pretext grounds.
Title VII’s retaliation standard still requires a “materially adverse” action under Burlington Northern, which Muldrow did not displace.
Profanity-laden, ad hominem attacks on colleagues posted on social media by a public employee are not speech on a matter of public concern and, even if they were, the Pickering balance would favor the public employer’s operational interests.
For a perceived-disability claim, stray “mental stability” remarks by a non-decisionmaker are insufficient to show an employer “regarded” the plaintiff as disabled.

Summary of the Opinion

The Sixth Circuit affirmed summary judgment for Kent State and the individual defendants on all claims:

Title VII sex discrimination: No direct evidence of discrimination; under the McDonnell Douglas framework, Kent State articulated legitimate, non-discriminatory reasons (Patterson’s unprofessional, hostile social media and communications; departmental needs; collegiality and service) and Patterson failed to show pretext.
Title VII retaliation: Patterson’s four emails did not establish protected activity known to the decisionmakers before the challenged actions, nor causation; and one email did not even allege sex discrimination. The Center-director issue failed because no vacancy existed.
First Amendment retaliation (§ 1983): Patterson’s tweets were internal personnel attacks, not matters of public concern. Even assuming some statements touched public concern, the employer’s interest in effective operations outweighed Patterson’s interest, given the disruption caused by the conduct.
Rehabilitation Act (perceived disability): A single “mental stability” comment by a colleague relayed to a supervisor was not sufficient evidence that the employer regarded Patterson as disabled.
Procedural note: The court also rejected Patterson’s late “sham affidavit” challenge to Dean Munro‑Stasiuk’s declaration as untimely, forfeited on appeal, and meritless.

Analysis

Precedents Cited and How They Shaped the Outcome

Muldrow v. City of St. Louis, 601 U.S. 346 (2024): The Supreme Court held that Title VII’s discrimination provision does not require showing a “significant” or “serious” harm—only “some harm” to a term or condition of employment. The Sixth Circuit recognized the district court applied an outdated, heightened standard. While the appellate court assumed arguendo the prima facie step was met, it affirmed at the pretext stage. The court also noted it was not deciding whether its earlier “de minimis” gloss (Threat v. City of Cleveland) survives Muldrow, signaling an open question for the Circuit.
Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006): The “materially adverse” standard remains the benchmark for Title VII retaliation claims. The Sixth Circuit emphasized Muldrow did not change retaliation law. This distinction remains critical: discrimination claims (some harm) vs. retaliation claims (material adversity).
Bostock v. Clayton County, 590 U.S. 644 (2020): Transgender status is protected under Title VII’s “because of sex.” The Sixth Circuit accepted this premise but found the evidentiary record lacking as to causation and pretext.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973): The court used the familiar burden-shifting framework for circumstantial evidence of discrimination and retaliation: prima facie case; employer’s legitimate reason; plaintiff’s pretext showing.
Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 358 n.44 (1977): No adverse action exists where there is no vacancy. Applied to the “Center director” theory, the court concluded there was no open position to revoke.
Myers v. City of Centerville, 41 F.4th 746 (6th Cir. 2022); Connick v. Myers, 461 U.S. 138 (1983): Internal personnel disputes—“employee beef”—do not touch matters of public concern simply because made public. This anchored the First Amendment analysis.
Dunn v. Carroll, 40 F.3d 287 (8th Cir. 1994): A public employee cannot mix protected speech with “caustic” personal attacks and claim immunity. The Sixth Circuit approvingly cited this principle in holding Patterson’s attacks on colleagues were not protected by the First Amendment.
Hoffman v. Prof’l Med Team, 394 F.3d 414 (6th Cir. 2005); Gribcheck v. Runyon, 245 F.3d 547 (6th Cir. 2001); Manzer v. Diamond Shamrock Chems., 29 F.3d 1078 (6th Cir. 1994): Profanity and disrespect toward colleagues/supervisors are legitimate non-discriminatory grounds for discipline. These supported Kent State’s rationale for rescinding Patterson’s time reallocation and for departmental votes.
Webb v. Kentucky State Univ., 468 F. App’x 515 (6th Cir. 2012) and Maras v. Curators of Univ. of Mo., 983 F.3d 1023 (8th Cir. 2020): Collegiality, service, and departmental fit are legitimate considerations in academic personnel decisions; courts accord deference to such judgments.
Goldblum v. Univ. of Cincinnati, 62 F.4th 244 (6th Cir. 2023): Communications that do not complain of sex discrimination are not protected activity under Title VII. One of Patterson’s emails referenced health, not sex discrimination.
Bickerstaff v. Vassar College, 196 F.3d 435 (2d Cir. 1999): Distinguishing between a professor’s scholarly discipline and personal protected traits; the Sixth Circuit used this logic to reject “direct evidence” based on discussion of departmental needs for LGBT-studies expertise.
Bledsoe v. TVA, 42 F.4th 568 (6th Cir. 2022); Gecewicz v. Henry Ford Macomb Hosp. Corp., 683 F.3d 316 (6th Cir. 2012): McDonnell Douglas applies to Rehabilitation Act claims; “regarded as” requires an employer to perceive a qualifying impairment of sufficient duration. A stray “mental stability” remark by a non-decisionmaker did not meet this standard.

Legal Reasoning

1) Title VII Sex Discrimination

Patterson argued both direct and circumstantial evidence. On direct evidence, the court found none: denying a transfer request by a transgender professor is not itself direct proof of bias, and discussion of whether the department needed LGBT-studies teaching expertise is not the same as animus toward a professor’s transgender identity. The court cited Bickerstaff to underscore that consideration of academic needs in a specific scholarly field is categorically different from stereotyping a person’s protected status.

On circumstantial evidence, the court used McDonnell Douglas. While the district court had required “material adversity,” which Muldrow has since abrogated for discrimination claims, the Sixth Circuit assumed the prima facie step and proceeded to the employer’s reasons and pretext. Kent State offered multiple legitimate, non-discriminatory reasons:

Multiple profanity-laced, ad hominem tweets, texts, and emails disparaging colleagues and their discipline in violation of university policy.
Workplace disruption and withdrawal from service obligations.
Departmental fit, curricular needs, and preservation of a future tenure-track hire.

Patterson failed to show these reasons were pretextual. Among other things, the same English Department had recently voted to grant tenure to Patterson—undercutting a theory of transgender bias—and after the initial “no” vote on the transfer request, the Dean corrected a procedural irregularity and had the committees re-vote, which again resulted in denial. These features did not bear indicia of pretext.

2) Title VII Retaliation

Four emails were offered as protected activity: three sent after the Dean rescinded the course-load reallocation and one sent beforehand. The court’s analysis proceeded under Burlington Northern’s “materially adverse” standard, which Muldrow did not change for retaliation claims:

The three post-rescission emails could not have caused the earlier rescission.
The pre-rescission email was a private message; the record showed no decisionmaker knowledge. Without employer knowledge, there can be no causal link.
Another email to the department chair mentioned health-related bandwidth, not sex discrimination, and thus was not protected Title VII activity.
The “Center director” theory failed at the threshold because there was no open position to fill or revoke (Teamsters footnote 44).

Without knowledge or causal connection, the prima facie retaliation case failed.

3) First Amendment Retaliation (Public Employee Speech)

Applying the public-employee test, the court focused on (a) whether the speech addressed a matter of public concern and (b) the Pickering balance between the speaker’s interest and the employer’s operational interests. The court concluded:

The “gist” of the tweets was a prolonged, profane, targeted attack on specific colleagues and their professional competence—classic internal personnel disputes that do not qualify as matters of public concern. “Employee beef” does not become public concern simply by being aired publicly.
Even if some tweets arguably contained general commentary touching on discrimination in academia, an employee cannot blend such commentary with “caustic personal attacks” to cloak the attacks in First Amendment protection. The court approvingly cited Dunn v. Carroll on this point.
In any event, the Pickering balance favored the university: the tweets caused significant disruption and impeded collaborative functioning; the employer’s interest in efficient operation of the public institution outweighed the employee’s interest in this form of speech.

4) Rehabilitation Act (Perceived Disability)

The “regarded as” theory requires evidence that the employer perceived the plaintiff as having a qualifying impairment expected to last more than six months. Patterson relied on a single remark relayed from a colleague expressing concern about “mental stability.” The court found this insufficient—a personality conflict or non-decisionmaker’s lay remark is not substantial evidence that the employer regarded the professor as disabled. Thus, the claim failed at the prima facie stage.

Impact and Significance

Title VII discrimination standard post-Muldrow: The Sixth Circuit acknowledged the Supreme Court’s “some harm” standard and flagged that district courts must no longer require “significant” or “material” adversity to a term or condition of employment for discrimination claims. While the panel did not define the precise quantum of “some harm” or resolve the fate of the Circuit’s “de minimis” gloss (Threat), it signaled future litigation will test the lower threshold.
Retaliation remains under Burlington Northern: The court emphasized that Muldrow did not alter the “materially adverse” standard for retaliation claims. Practitioners must keep the two standards distinct.
Academic speech versus “employee beef” on social media: For public universities, the decision is a clear reaffirmation: when faculty speech is primarily profane, ad hominem, and aimed at colleagues’ competence and identity, it usually does not involve a matter of public concern. Even if some statements verge on public issues, mixed content with caustic personal attacks can still lose protection, and the Pickering balance will likely favor the institution where disruption occurs.
Legitimate grounds for academic personnel decisions: Collegiality, service to the institution, programmatic fit, and curricular needs remain legitimate, non-discriminatory reasons in tenure and lateral transfer decisions. The court’s reliance on this orthodox set of reasons will bolster university defenses where records document these factors and show consistent, procedurally sound processes.
Knowledge and causation in retaliation claims: Private complaints unknown to decisionmakers cannot support causation in Title VII retaliation claims. Timing that reverses the causal arrow (complaint after the action) is likewise fatal.
“Regarded as” disability claims require more than stray remarks: Isolated, non-decisionmaker comments about “stability” do not establish that an employer perceived a disability of the kind and duration covered by the ADA/Rehabilitation Act.

Complex Concepts Simplified

Direct vs. circumstantial evidence: Direct evidence proves discrimination without inference (e.g., “We denied you because you are transgender.”). Circumstantial evidence suggests discrimination through inference and is analyzed under McDonnell Douglas.
McDonnell Douglas burden-shifting: The plaintiff first shows a basic (prima facie) case; the employer then articulates a legitimate, non-discriminatory reason; the plaintiff must then prove that reason is a pretext for discrimination.
Adverse employment action—discrimination: After Muldrow, the action need only cause “some harm” to a term or condition of employment; the old “significant harm” threshold is no longer required for discrimination claims.
Materially adverse action—retaliation: Burlington Northern still governs retaliation claims; the action must be significant enough to dissuade a reasonable worker from making or supporting a charge of discrimination.
Public concern (public employee speech): Speech addresses public concern if it contributes to civic or political discourse (e.g., public corruption). Personal grievances about workplace management usually do not qualify.
Pickering balancing: Even if speech involves public concern, courts balance the employee’s right to speak against the employer’s need to maintain efficient, disruption-free public services.
Pretext: Evidence that the employer’s stated reasons are factually false, did not actually motivate the action, or were insufficient to justify the action.
No vacancy rule: A failure-to-hire or appointment claim cannot proceed where no position has been opened.
“Regarded as” disability: The plaintiff must show the employer perceived a qualifying impairment (physical or mental) expected to last more than six months, not mere personality conflicts or isolated stability concerns.

Conclusion

Patterson v. Kent State University is a comprehensive, published reminder of several critical doctrines:

Post-Muldrow, Title VII discrimination claims require only “some harm,” though the Sixth Circuit left for another day the precise boundaries and the status of any “de minimis” exception.
Retaliation remains governed by Burlington Northern’s “materially adverse” standard; Muldrow does not change that.
Profane, targeted social-media attacks on colleagues by a public employee are not speech on matters of public concern and, even if any component touches public issues, such “mixed” speech can fail the Pickering balance when it causes workplace disruption.
Universities may rely on collegiality, service, departmental fit, and curricular needs as legitimate reasons in academic personnel decisions, especially when carefully documented and implemented through proper procedures.
Perceived-disability claims need more than stray, non-decisionmaker remarks; they require evidence the employer actually regarded the employee as having a qualifying impairment of sufficient duration.

The opinion offers practical guidance to public employers—particularly universities—on managing internal conflicts exacerbated by social media while staying within constitutional and statutory boundaries. For employees, it underscores that airing workplace disputes with profanity and ad hominem attacks risks forfeiting First Amendment protection and can legitimately trigger employment consequences without violating Title VII or the Rehabilitation Act.