Pretext or Bust: The Sixth Circuit Reaffirms Strict Evidentiary Demands for Pretext and Clarifies the Prejudice Showing Required to Challenge Sua Sponte Summary Judgment

Introduction

In Darryl Broadnax v. Rhombus Energy Solutions, Inc., the United States Court of Appeals for the Sixth Circuit affirmed summary judgment for the employer on claims of race discrimination, religious discrimination, retaliation, and hostile work environment under Title VII and Michigan’s Elliott-Larsen Civil Rights Act (ELCRA). The case arose from the brief tenure of a production manager whose resume later proved to be falsified, whose behavior generated multiple workplace complaints, and whose termination followed a series of documented performance incidents.

On appeal, the key issues were whether the plaintiff musters sufficient evidence of pretext to survive summary judgment on discrimination and retaliation claims; how courts may treat employer-generated incident summaries at the summary judgment stage; whether generalized attestations of a discriminatory “atmosphere” suffice to create a triable issue; and whether a district court’s sua sponte grant of summary judgment on a hostile environment claim violates Rule 56(f)(2) absent prejudice. The Sixth Circuit’s opinion methodically applies—and in several respects sharpens—the evidentiary demands at the pretext stage and the procedural standards governing sua sponte dispositions.

Summary of the Opinion

The Sixth Circuit (Judges Thapar, Readler, and Hermandorfer; opinion by Judge Hermandorfer) affirmed the district court’s grant of summary judgment for Rhombus Energy Solutions. The court:

Held that Broadnax forfeited his religious discrimination claim by failing to brief it on appeal.
Assumed arguendo that disputes about “qualifications” need not be resolved because the employer’s performance-based reasons for termination were legitimate and unrebutted by “significant probative evidence” of pretext.
Rejected pretext arguments premised on incomplete documentation, a hearsay challenge to a workplace-incident chart (both forfeited and independently unpersuasive in light of the business-records theory), and a co-worker’s generalized declaration alleging a discriminatory atmosphere.
Affirmed summary judgment on the ELCRA retaliation claim because the pretext analysis is identical; the same evidentiary failure doomed both discrimination and retaliation.
Affirmed the district court’s sua sponte grant of summary judgment on the ELCRA hostile-work-environment claim under Rule 56(f)(2) because the appellant failed to show prejudice—i.e., he did not identify additional arguments or evidence he could have presented with notice—and independently forfeited the merits by failing to brief them adequately.

Bottom line: Without concrete, admissible, and specific evidence that the employer’s stated performance reasons were false or did not actually motivate the firing, both discrimination and retaliation claims fail at summary judgment. And to overturn a sua sponte summary judgment under Rule 56(f)(2), an appellant must do more than protest lack of notice; he must demonstrate prejudice by identifying the evidence or arguments he would have offered.

Analysis

Precedents Cited and Their Influence

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973): The court applied the familiar burden-shifting framework for claims based on circumstantial evidence. After the employer proffers a legitimate, nondiscriminatory reason, the plaintiff must show pretext. Here, the panel bypassed disputes about the prima facie “qualifications” prong and resolved the case at the pretext stage.
Redlin v. Grosse Pointe Pub. Sch. Sys., 921 F.3d 599 (6th Cir. 2019), and Rouch World, LLC v. Dep't of Civil Rights, 987 N.W.2d 501 (Mich. 2022): These cases reinforce that Michigan’s ELCRA tracks Title VII in using McDonnell Douglas for circumstantial-evidence cases, aligning the analysis across federal and Michigan law.
Briggs v. Univ. of Cincinnati, 11 F.4th 498 (6th Cir. 2021): Cited for the prima facie elements; the court emphasized it could assume that element and decide on pretext.
Chen v. Dow Chemical Co., 580 F.3d 394 (6th Cir. 2009): Provided the three recognized avenues to establish pretext: no basis in fact, did not actually motivate, or insufficient to motivate. The court also echoed Chen’s common-sense framing: did the employer fire the employee for the stated reason or not?
Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531 (6th Cir. 2008): Confirmed that poor performance is a legitimate, non-discriminatory reason to terminate. That principle fits the evidence of repeated policy violations and interpersonal problems.
Pelcha v. MW Bancorp, Inc., 988 F.3d 318 (6th Cir. 2021): Clarified that to show “no basis in fact,” a plaintiff must present evidence the alleged misconduct did not occur, not merely attack recordkeeping. Broadnax challenged documentation practices without showing the events never happened—insufficient under Pelcha.
Smith v. Leggett Wire Co., 220 F.3d 752 (6th Cir. 2000), and Grizzell v. City of Columbus Div. of Police, 461 F.3d 711 (6th Cir. 2006): These decisions reject “vague assertions” and “mere personal beliefs, conjecture and speculation” as inadequate to establish pretext. Broadnax’s coworker’s generalized declaration fell squarely within these guardrails.
Lossia v. Flagstar Bancorp, Inc., 895 F.3d 423 (6th Cir. 2018): Supports the district court’s consideration of an incident-summary chart at summary judgment because the information could be presented in admissible form at trial (business records), and objections must be framed in terms of trial admissibility under Rule 56.
Williamson v. Recovery Ltd. P’ship, 731 F.3d 608 (6th Cir. 2013): Underlines that arguments perfunctorily raised or undeveloped are forfeited—applied to Broadnax’s hearsay challenge.
Beny v. Univ. of Mich., 2025 WL 2124175 (6th Cir. July 29, 2025), and Redlin, 921 F.3d at 616: Tie discrimination and retaliation pretext analysis together: failure to show pretext sinks both claims.
Smith v. Perkins Bd. of Educ., 708 F.3d 821 (6th Cir. 2013): Sets the framework for reviewing sua sponte summary judgment: discouraged but permissible under Rule 56(f)(2); appellate reversal requires showing lack of notice and prejudice.
Good v. Walworth, 2023 WL 9320823 (6th Cir. Aug. 22, 2023), and Smith v. Erie Cnty. Sheriff’s Dep’t, 603 F. App’x 414 (6th Cir. 2015): Explain the prejudice requirement for Rule 56(f)(2)—the appellant must identify what additional evidence or arguments would have been presented with notice. Broadnax did not do so.
Stewart v. IHT Ins. Agency Grp., LLC, 990 F.3d 455 (6th Cir. 2021): Reinforces that arguments raised for the first time in reply are forfeited; applied to Broadnax’s belated merits defense of his hostile environment claim.
Bivens v. Zep, Inc., 147 F.4th 635 (6th Cir. 2025), and Patterson v. Kent State Univ., 2025 WL 2630307 (6th Cir. 2025): Emphasize that nonmovants must marshal “significant probative evidence,” not speculation; the court may affirm on any ground supported by the record and raised below.
Bryant v. McDonough, 72 F.4th 149 (6th Cir. 2023): Failure to brief an issue on appeal constitutes forfeiture—applied to religious discrimination.
Federal Rules and Statutes: Fed. R. Civ. P. 56(a) and 56(f)(2) (summary judgment standards and sua sponte authority); 42 U.S.C. § 2000e-2(a)(1) (Title VII); Mich. Comp. Laws §§ 37.2202(1)(a), 37.2701(a) (ELCRA discrimination and retaliation); 28 U.S.C. § 1291 (appellate jurisdiction).
Ames v. Ohio Dep’t of Youth Servs., 605 U.S. 303 (2025) (Thomas, J., concurring): Cited to note that even under a “genuine dispute” lens on the ultimate motivation question, the outcome would be the same—though the panel applied McDonnell Douglas, this concurrence did not alter the governing framework.

Legal Reasoning

The court tracked the standard three-step McDonnell Douglas analysis but decided the case at step three. It was unnecessary to resolve whether Broadnax met the prima facie “qualification” prong (complicated here by admitted resume falsification) because Rhombus articulated legitimate performance-based reasons, and Broadnax could not create a triable issue of pretext.

Rhombus’s record included a termination letter and corroborating materials documenting repeated policy violations and interpersonal issues: unauthorized discipline; termination of a subordinate in direct contravention of HR instructions; aggressive and bullying conduct; a confrontational interaction over a female employee’s attire; and what HR deemed fabricated allegations about colleagues. Multiple witness depositions supported these incidents. Such performance-based reasons are legitimate and nondiscriminatory.

On pretext, the court assessed whether a reasonable jury could conclude the asserted reasons were false, did not actually motivate the decision, or were insufficient to motivate the decision:

No basis in fact: Broadnax attacked the thoroughness and timing of the employer’s documentation but offered no evidence that the incidents “never happened,” as required by Pelcha. Critiquing recordkeeping is not the same as proving falsity.
Did not actually motivate: Broadnax proffered a coworker’s declaration reciting beliefs that the company treated Black employees worse and held bias against Black managers. The court deemed such generalized assertions insufficient under Smith and Grizzell to show that the stated performance reasons were a smokescreen.
Insufficient to motivate: The array of incidents—including direct insubordination of HR directives and multiple employee complaints—easily clears this threshold. Nothing in the record suggested the reasons were trivial or non-terminable as a matter of employer policy.

Additional arguments failed procedurally. The hearsay challenge to the incident chart was forfeited as underdeveloped, and in any event failed because the material could be presented at trial as a business record—thus properly considered at summary judgment. The religious-discrimination claim was forfeited for lack of briefing.

For retaliation under ELCRA, the court applied the same framework and emphasized that pretext analysis is identical to Title VII. Even assuming protected activity (a complaint to HR about a coworker’s use of the term “colored”), the employer carried the day on pretext. The performance issues—many occurring after the HR complaint—broke any causal inference and, more centrally, went unrebutted under the pretext standard.

The court also affirmed the district court’s sua sponte summary judgment on the hostile-work-environment claim. While the Sixth Circuit has “discouraged” sua sponte grants, Rule 56(f)(2) permits them after notice and a reasonable opportunity to respond. The standard of review is abuse of discretion, and reversal requires showing both lack of notice and prejudice. Even assuming a lack of notice, Broadnax did not identify any additional evidence or arguments he would have presented; he thus failed to demonstrate prejudice. He also forfeited merits arguments by raising them, if at all, only in reply.

Impact and Practical Implications

Although unpublished and non-precedential, the opinion offers clear, practice-focused guidance that will influence litigation strategy in the Sixth Circuit and beyond:

Pretext demands specifics: Plaintiffs must marshal concrete, admissible evidence that the events did not occur, that decisionmakers did not rely on them, or that they were insufficient to motivate the action. Generalized declarations, atmospheric allegations, or attacks on documentation practices are rarely enough.
Documentation still matters—just not the way plaintiffs might think: Employers’ incident summaries and chronologies can be considered at summary judgment if the contents would be admissible at trial (e.g., as business records). Plaintiffs should focus on admissibility and substance, not form or timing alone.
Same pretext showing sinks retaliation: Where discrimination and retaliation claims rise or fall together, failure to show pretext for one typically defeats the other—especially when the employer’s performance narrative encompasses post-complaint conduct.
Forfeiture and briefing discipline: Failure to brief issues (e.g., religious discrimination) or to develop arguments (e.g., hearsay objections) leads to forfeiture. Counsel should also avoid raising new arguments in reply.
Sua sponte summary judgment is resilient on appeal absent prejudice: To overturn a Rule 56(f)(2) grant, an appellant must do more than protest lack of notice; he must identify the additional evidence or arguments that would have been presented with notice and show how they could change the outcome.
Resume fraud and after-acquired evidence: The panel did not rely on resume falsification to decide the case (and did not address after-acquired evidence doctrine). Still, the facts underscore a practical point: even when “qualifications” are disputed or tainted by later-discovered falsity, pretext remains the critical battleground for summary judgment.
The “Ames” concurrence as signpost, not a substitute: The court noted that its result would be the same even under a more direct “genuine dispute about ultimate motivation” lens. For now, McDonnell Douglas remains the Sixth Circuit’s organizing framework, with pretext as the decisive step.

Complex Concepts Simplified

McDonnell Douglas burden-shifting: A three-step framework for circumstantial evidence cases. Step 1: Plaintiff makes a prima facie case (protected class, adverse action, qualified, and different treatment or replacement by someone outside the class). Step 2: Employer articulates a legitimate, non-discriminatory reason. Step 3: Plaintiff proves pretext—showing the employer’s reason is false, not the real reason, or insufficient to motivate the action.
Pretext: Evidence that an employer’s stated reason is a cover for discrimination or retaliation. It must be concrete and probative—speculation, beliefs, or vague assertions of bias are not enough.
ELCRA vs. Title VII: Michigan’s ELCRA generally mirrors Title VII for discrimination and retaliation analyses; Sixth Circuit cases treat pretext analysis as identical under both.
Summary judgment and “significant probative evidence”: A case can be decided without a trial when there is no genuine dispute of material fact. The nonmovant must present evidence strong enough that a reasonable jury could find in their favor, not mere conjecture or speculation.
Hearsay and business records at summary judgment: Courts can consider evidence at summary judgment if it can be presented in an admissible form at trial. Employer incident logs can often fit the business-records exception to hearsay if supported by proper foundation.
Rule 56(f)(2) sua sponte summary judgment: A court can grant summary judgment on grounds not raised by a party, after notice and a reasonable time to respond. On appeal, an appellant must show prejudice by identifying the additional arguments or evidence he would have offered with notice.
Hostile work environment (“severe or pervasive”): To be actionable, the workplace must be permeated with discriminatory intimidation, ridicule, and insult that is severe or pervasive enough to alter the conditions of employment. Isolated or non-severe incidents generally do not suffice.
Forfeiture vs. waiver: Forfeiture occurs when a party fails to timely raise or develop an argument; courts often refuse to consider such issues. Waiver is the intentional relinquishment of a known right. Appellate courts routinely apply forfeiture to inadequately briefed issues.

Conclusion

Broadnax v. Rhombus Energy Solutions is a clear reaffirmation of the Sixth Circuit’s rigorous evidentiary demands at the pretext stage and a pragmatic application of Rule 56(f)(2). The court’s message is twofold. First, when employers present a documented, plausible performance narrative, plaintiffs must counter with specific, admissible, and probative evidence that the narrative is false or not the real reason—generalized workplace grievances or thinly developed objections will not do. Second, procedural challenges to sua sponte summary judgment must demonstrate concrete prejudice by identifying the evidence or arguments that would have been supplied with notice.

While unpublished, the opinion offers potent guidance. For employers, it underscores the value of contemporaneous documentation, clear HR directives, and structured disciplinary processes that fit within the business-records framework. For employees and their counsel, it illustrates the importance of building a factual record aimed squarely at pretext—developing comparator evidence, undermining key factual assertions with competent testimony, and comprehensively briefing evidentiary objections. In the Sixth Circuit, as this case shows, pretext remains the fulcrum on which discrimination and retaliation claims often turn, and Rule 56(f)(2) remains a viable tool—resistant to reversal absent a concrete showing of prejudice.