Reaffirming the High Bar for Harassment and Clarifying Post‑Muldrow Adverse Actions: Commentary on Terra Wargo v. MJR Partridge Creek Digital Cinema 14

I. Introduction

The Sixth Circuit’s unpublished opinion in Terra Wargo v. MJR Partridge Creek Digital Cinema 14, No. 25‑1143 (6th Cir. Nov. 25, 2025), though “not recommended for publication,” offers a concentrated illustration of several important doctrines in employment discrimination and retaliation law under both Title VII of the Civil Rights Act of 1964 and Michigan’s Elliott‑Larsen Civil Rights Act (ELCRA).

Judge Thapar, writing for a unanimous panel, affirms summary judgment in favor of the employer on all claims: hostile‑work‑environment sexual harassment, sex discrimination (failure to promote, transfer, termination), and retaliation. The case sits at the intersection of:

• the Supreme Court’s recent refinement of “adverse employment action” in Muldrow v. City of St. Louis, 601 U.S. 346 (2024);
• the Sixth Circuit’s long‑standing “high bar” for hostile work environment claims;
• strict comparator requirements in indirect‑evidence discrimination cases; and
• procedural forfeiture principles that can independently sink retaliation claims.

The opinion underscores that:

• borderline or ambiguous interpersonal conduct, even if subjectively perceived as sexual, will often fail the objective “severe or pervasive” standard;
• lateral transfers remain difficult to litigate as adverse actions even after Muldrow, absent concrete harm;
• without truly comparable male employees who were treated better, sex discrimination claims based on disparate treatment falter at the prima facie stage; and
• retaliation claims can be lost not only on merits, but also by failure to preserve specific theories or to develop arguments (especially on causation) at the summary judgment stage.

II. Factual and Procedural Background

A. Employment history and management change

Plaintiff‑appellant Terra Wargo began working for MJR Partridge Creek Digital Cinema 14 (“Partridge Creek”) in 2015 in front‑line roles (concessions and ushering). Over time she rose to a full‑time manager position. When the theater’s general manager resigned, Wargo applied for that promotion but was passed over. Instead, the managing company, MJR Group LLC (“MJR”), transferred Paul Finnigan—already an experienced general manager at another MJR location and someone who had helped open the Partridge Creek theater—to serve as general manager there.

MJR’s vice president of operations, Joel Kincaid, offered Wargo the general manager job at Finnigan’s former theater. Wargo declined that promotion, preferring to remain at Partridge Creek.

B. Deteriorating relationship with Finnigan

Wargo quickly became dissatisfied with Finnigan’s management style. She perceived him as poor at communication and disrespectful. She told a coworker that she might seek a transfer and that, if Finnigan did not perform well, she intended to confront him and speak to his supervisor, Kincaid. She also heard, second‑hand, that Finnigan had said she would be “trouble,” which she interpreted as meaning she would be “a problem to [him] moving forward,” not as a sexual comment.

C. Text messages, invitations, and the disputed office confrontation

Finnigan began texting Wargo on her personal phone. Key incidents included:

• An invitation to meet him at a restaurant, which Wargo declined.
• A series of texts related to training on concession sales and the ordering system, including statements such as:
  • “I will teach you all I know.”
  • “I can show you everything … [i]f you let me.”
  • “You just have to trust me, and my methods.”
  • “You will learn more than you think.”
  These followed directly from his offer to “show [her] how to break down concessions sales.”
• Further invitations to get something to eat and a message saying he wanted to treat her to dinner as thanks for her help at work—which she also declined.
• An incident in which Finnigan, seeing Wargo driving near the theater, turned his car around, followed her into a nearby parking lot, and texted, “Do you secretly just live here :)[?]”
• A July 13, 2021 meeting at Wargo’s workplace (after she refused to meet at a restaurant), ostensibly to clear the air about their strained working relationship.

At the July 13 meeting, Wargo asserted that Finnigan became “angry and aggressive.” They argued about his management style—specifically his lack of “respect and communication.” Wargo claims that:

• Finnigan “slammed a piece of paper down,”
• followed her into an adjacent office when she tried to leave,
• blocked the door, and
• touched her arm for about 5–10 seconds to prevent her leaving.

She eventually got past him and left the building.

D. Internal complaint, investigation, discipline, and transfer

Following this incident, Wargo filed an internal complaint accusing Finnigan of “inappropriate behavior” and seeking his removal from the company. Kincaid investigated. The investigation concluded that:

• both Wargo and Finnigan had acted inappropriately in their conflict; but
• no sexual harassment had occurred.

Both received written warnings. Finnigan was placed on a 90‑day Performance Improvement Plan (PIP). Both were required to re‑review company policies on sexual harassment and bullying. Wargo’s written warning directed her to route future complaints from other employees directly to HR and not to discuss such complaints with coworkers.

To separate the two, MJR offered Wargo a transfer to a different MJR theater less than ten miles away, at the same pay, same benefits, and with continued managerial status but in a different department. She accepted and, by her own account, had a good relationship with her new manager.

E. Wargo’s return visit, coworker complaint, Finnigan’s resignation, and Wargo’s termination

Despite having no ongoing role at Partridge Creek, Wargo later returned to the theater and spent roughly three hours in a keyed office with former coworkers. One coworker resigned the next day and filed an internal sexual‑harassment complaint against Finnigan. Finnigan, upon learning about this new complaint, filed his own complaint seeking a transfer due to “allegations and attempts to remove” him, then ultimately resigned.

Approximately two weeks after Wargo’s multi‑hour visit and discussions with former coworkers, MJR terminated her employment. The termination notice listed three reasons:

1. Inappropriate comments about a manager;
2. Insubordination and a verbal outburst at a manager; and
3. Refusal to “follow company policy and directive provided in corrective/disciplinary action.”

Kincaid elaborated that:

• Wargo had violated unwritten policy by accessing a keyed office at a location where she no longer worked; and
• she discussed HR‑related issues with former coworkers despite being explicitly directed not to do so in her written warning.

Kincaid testified that MJR “lost faith that [Wargo] was trustworthy,” motivating the termination.

F. District court proceedings and appeal

Wargo sued, asserting:

• Sexual harassment and sex discrimination under Title VII and ELCRA; and
• Retaliation under Title VII and ELCRA.

The district court granted summary judgment to Partridge Creek/MJR on all claims and denied Wargo’s motion for reconsideration. Wargo appealed. The Sixth Circuit, reviewing summary judgment de novo and construing facts in the light most favorable to Wargo, affirmed.

III. Summary of the Sixth Circuit’s Decision

The Sixth Circuit held:

1. Hostile‑work‑environment sexual harassment: Even crediting Wargo’s subjective perception, Finnigan’s conduct did not meet the objective “severe or pervasive” standard required under Title VII and ELCRA. The interactions—occasional invitations, ambiguous training‑related messages, non‑sexual criticism, one episode of following in a car, and a single brief arm‑touching during a workplace dispute—were not frequent, not overtly sexual, and not sufficiently threatening or humiliating to create a hostile work environment for a reasonable person.
2. Quid pro quo harassment under ELCRA: Though theoretically available under Michigan law, this theory was forfeited because Wargo never raised it in the district court or in her appellate briefing.
3. Sex discrimination (failure to promote, transfer, termination):
   • No direct evidence existed that any adverse action was taken “because of” Wargo’s sex.
   • Under the McDonnell Douglas indirect‑evidence framework, Wargo failed to establish a prima facie case:
     • The lateral transfer, which preserved her pay, benefits, and managerial status, was not an adverse employment action under Muldrow because she did not show that it left her “worse off” or caused “some injury” to the terms or conditions of employment.
     • As to the denial of promotion to general manager and her termination, she could not identify any similarly situated male employees who were treated more favorably. Finnigan, with prior general manager experience (including at Partridge Creek), was not similarly situated as a comparator for the promotion decision. No male employee engaged in the same misconduct as Wargo and was treated better with respect to discipline or termination.
4. Retaliation:
   • Wargo could not invoke the “participation” clause because, at the time of her termination, there was no formal EEOC or state agency complaint in which she could have “participated.” Her later EEOC charge post‑termination and a coworker’s internal complaint did not qualify.
   • Her theory of direct evidence of retaliation—arguing that MJR admitted it fired her for discussing complaints (allegedly protected activity)—was forfeited because she failed to raise this theory until after summary judgment in a motion for reconsideration, and did not adequately brief it on appeal.
   • Under the indirect‑evidence framework, she failed to establish the causation prong of a prima facie case. She did not substantively respond to the employer’s causation arguments at summary judgment, offering only a conclusory paragraph that simply pointed back to earlier discrimination and harassment arguments that did not address retaliation causation. The panel held this amounted to forfeiture of the causation issue.

Consequently, all of Wargo’s claims failed as a matter of law, and the judgment for the employer was affirmed.

IV. Detailed Analysis

A. Hostile‑Work‑Environment Sexual Harassment

1. Legal framework

The panel applied the standard articulated in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), and further elaborated in Sixth Circuit precedent like Khalaf v. Ford Motor Co., 973 F.3d 469 (6th Cir. 2020), and Hawkins v. Anheuser‑Busch, Inc., 517 F.3d 321 (6th Cir. 2008).

To establish a hostile work environment based on sex, a plaintiff must show among other elements that:

• The harassment was because of sex; and
• The harassment was “severe or pervasive” enough to create an environment that:
  • the plaintiff subjectively perceived as abusive, and
  • a reasonable person would objectively find hostile or abusive.

For the objective prong, courts consider, in totality:

• frequency of the conduct;
• its severity;
• whether it is physically threatening or humiliating, or merely an offensive utterance; and
• whether it unreasonably interferes with the employee’s work performance.

The court also reiterated an important limitation from Hawkins: words or conduct with “sexual content or connotations” cannot by themselves necessarily create a hostile work environment; the behavior still must satisfy the severe‑or‑pervasive threshold.

These principles apply equally to ELCRA sexual harassment claims. The panel cites Wasek v. Arrow Energy Services, Inc., 682 F.3d 463 (6th Cir. 2012), for the functional equivalence of the standards in these federal and Michigan claims, at least as to hostile work environment.

2. Application to Wargo’s allegations

The key elements of Finnigan’s conduct, taken as true, were:

• Three invitations over three months to eat together or meet at a restaurant;
• Work‑related texts about training on concession sales and ordering systems, which included language like “I will teach you all I know” and “You just have to trust me, and my methods”;
• An off‑site interaction where Finnigan followed Wargo in his car to a parking lot and sent a light‑hearted text (“Do you secretly just live here :)[?]”);
• A July 13 confrontational meeting in which Finnigan was allegedly angry, blocked a door, and touched Wargo’s arm for 5–10 seconds while preventing her from leaving.

Even when the court generously assumed, for argument’s sake, that some of these communications had “sexual undertones,” the conduct fell short objectively:

• Frequency: Conduct was sporadic, not daily or relentlessly continuous.
• Severity: There were no explicit sexual propositions, no graphic sexual comments, and no repeated physical touching. The single physical contact was brief and occurred in the context of a work‑related argument.
• Threatening or humiliating character: The texts were ambiguous and largely couched in professional training terms. The car‑following incident and smiley‑face text were odd but not overtly threatening or degrading by objective standards. The physical contact involved an arm grab/blocking the exit, but again in a one‑off dispute, not as part of a pattern of sexualized conduct.
• Interference with work: The opinion does not reflect that Wargo’s work performance or ability to perform her managerial duties was demonstrably impaired by Finnigan’s behavior.

The panel repeatedly emphasizes the “high bar” for actionable hostile work environments and notes that Wargo’s experiences “pale in comparison” to cases where plaintiffs lost despite more invasive and blatantly sexual misconduct—specifically referencing:

• Clark v. United Parcel Service, Inc., 400 F.3d 341 (6th Cir. 2005); and
• Hensman v. City of Riverview, 316 F. App’x 412 (6th Cir. 2009).

Although the opinion does not recount those older fact patterns in detail, it signals that, compared to instances involving repeated sexual comments, touching, or propositions, Finnigan’s conduct does not reach that “high bar.”

Crucially, the court draws a line between:

• Wargo’s subjective interpretation of Finnigan’s actions as sexual or harassing; and
• the legally required objective assessment of how a reasonable person in her position would view those same actions.

Relying on Harris and subsequent cases, the court rejects the notion that a plaintiff’s subjective experience alone can establish liability. Even accepting Wargo’s subjective discomfort, a reasonable person would not find her workplace “hostile or abusive” on these facts.

3. Relevance of ELCRA quid pro quo harassment

The court briefly notes that Michigan’s ELCRA permits “quid pro quo” harassment claims, citing Chambers v. Trettco, Inc., 614 N.W.2d 910 (Mich. 2000), which define that theory as involving employment decisions based on the employee’s response to unwelcome sexual conduct. But Wargo never pleaded or argued a quid pro quo theory in the district court or on appeal; she focused solely on hostile environment, discrimination, and retaliation. Under Bose v. Bea, 947 F.3d 983 (6th Cir. 2020), the panel treats that theory as forfeited.

This part of the opinion highlights an important lesson: even when state law offers potentially broader avenues of relief than federal law, those theories must be explicitly articulated and preserved from the outset; they will not be implied or constructed by the court on appeal.

B. Sex Discrimination: Promotion, Transfer, and Termination

1. Direct evidence: none

Both under Title VII and ELCRA, a plaintiff may prove discrimination with direct or indirect evidence. The panel cites Vincent v. Brewer Co., 514 F.3d 489 (6th Cir. 2007), and Hazle v. Ford Motor Co., 628 N.W.2d 515 (Mich. 2001), noting that direct evidence must “require[] the conclusion” that an adverse action was taken at least in part because of the plaintiff’s sex.

Here, no such evidence existed:

• No manager or decision‑maker made statements referencing Wargo’s sex in connection with the promotion decision, her transfer, or her termination.
• There were no documents, emails, or policy statements reflecting gender bias.

Accordingly, the case proceeded under the indirect‑evidence burden‑shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which the Sixth Circuit applies to both Title VII and ELCRA, as reflected in Hayes v. Clariant Plastics & Coatings USA, Inc., 144 F.4th 850 (6th Cir. 2025), and Hazle.

2. McDonnell Douglas framework and prima facie case

Under this framework:

1. The plaintiff must first establish a prima facie case of discrimination.
2. The burden then shifts to the employer to articulate a legitimate, non‑discriminatory reason for the adverse action.
3. If the employer does so, the burden shifts back to the plaintiff to show that these reasons are a pretext for discrimination.

The panel never reaches steps two and three because it concludes Wargo fails at step one. To make out a prima facie case of sex discrimination based on disparate treatment, Wargo had to show (as framed in Hayes):

1. She is a woman (a protected class member);
2. She suffered an “adverse employment action”;
3. She was qualified for her position; and
4. She was replaced by a male or treated less favorably than a similarly situated male employee.

Only the second and fourth elements were seriously contested.

3. The lateral transfer and the impact of Muldrow

Wargo argued that her transfer to another theater was an adverse employment action. Traditionally, many circuits required a “materially adverse change” in the terms or conditions of employment—for example, a significant pay cut, a demotion, loss of responsibilities, or severe schedule changes—to constitute an adverse action.

In Muldrow v. City of St. Louis, however, the Supreme Court clarified that a transfer can qualify if it results in “some injury respecting [the employee’s] employment terms or conditions” and “left her worse off.” The Sixth Circuit applies this new, slightly more plaintiff‑friendly standard here:

• Wargo’s transfer was lateral—same pay, same benefits, and continued managerial rank.
• She simply moved to a different department and theater location (less than ten miles away).
• She testified she got along well with her new manager and did not describe any disadvantage resulting from the transfer.

Under Muldrow, even a lateral move can be actionable if it harms the employee in some concrete way (e.g., worse schedule, diminished responsibilities of significance, loss of advancement opportunities). But because Wargo did not identify any real harm or disadvantage, the panel finds that the transfer did not leave her worse off and therefore was not an adverse employment action.

This is a key doctrinal point: Muldrow lowered the threshold from “materially adverse change” to “some injury,” but that standard still requires the plaintiff to point to an actual negative impact on employment conditions. Mere dissatisfaction with a reassignment or preference for a prior location is insufficient.

4. Denial of promotion and termination as adverse actions

By contrast, the panel recognizes that:

• Not being selected for the general manager position at Partridge Creek, and
• Being terminated

are classic adverse employment actions under any standard. Nevertheless, the prima facie case still fails because Wargo cannot satisfy the “similarly situated comparator” requirement.

5. Comparator analysis

To show disparate treatment, Wargo needed to identify male employees “similarly situated in all relevant aspects of their employment,” as formulated in Hayes and Mitchell v. Toledo Hospital, 964 F.2d 577 (6th Cir. 1992). Specifically:

• For the promotion decision, the comparator needed to be a male applicant similarly qualified (similar responsibilities, experience, performance) who was treated more favorably (promoted instead of her).
• For the termination, the comparator needed to be a male employee who engaged in the same or similar misconduct (inappropriate comments about supervisors, insubordination, violation of HR directives by discussing confidential complaints) but was not terminated or disciplined as harshly.

The only male comparator Wargo seriously advanced was Finnigan. The panel rejects him as a valid comparator for both adverse actions:

• For the promotion:
  • Finnigan had prior general manager experience at another MJR theater.
  • He had helped open the Partridge Creek location, giving him a distinct operational background.
  • Wargo had not previously served as general manager anywhere.
  These differences in job history and duties made them dissimilar in the “relevant aspects” for a promotion decision.
• For the termination:
  • MJR terminated Wargo for making inappropriate comments about a manager, insubordination, and disobeying a specific directive from a disciplinary warning (not to discuss complaints with coworkers, plus access issues at a location where she no longer worked).
  • Finnigan did not engage in that same combination of misconduct after being warned. Although he was disciplined with a PIP for his role in the July 13 incident, the decision to terminate Wargo later was premised on distinct conduct and policy violations.
  Because Finnigan did not do “the same conduct” yet receive more favorable treatment, he could not serve as a comparator.

Without any valid male comparator, the fourth element of the prima facie case fails. The court therefore does not proceed to whether MJR’s stated reasons were pretextual.

C. Retaliation under Title VII and ELCRA

1. Protected activity: participation vs. opposition

Both Title VII (42 U.S.C. § 2000e‑3(a)) and ELCRA (Mich. Comp. Laws § 37.2701(a)) prohibit employers from retaliating against employees for:

• Participating in an investigation, proceeding, or hearing under Title VII or ELCRA; or
• Opposing a practice made unlawful by those statutes (for example, complaining internally about discrimination or harassment).

The panel relies heavily on Jackson v. Genesee County Road Commission, 999 F.3d 333 (6th Cir. 2021), to structure its retaliation analysis, as well as Abbott v. Crown Motor Co., 348 F.3d 537 (6th Cir. 2003), for the participation clause.

a. Participation clause

The court finds the participation clause inapplicable because:

• Wargo did not file a formal charge of discrimination with the EEOC until months after her termination.
• Her coworker’s complaint against Finnigan was purely internal; there is no indication that it alleged violations of Title VII or state civil rights law, and no administrative or judicial proceeding had commenced based on it.

Thus, at the time of her termination, Wargo was not “participating” in any formal Title VII or ELCRA process.

b. Opposition clause and direct‑evidence theory

Wargo’s main theory was that she was punished for opposing sexual harassment—both by filing her own internal complaint and by assisting a coworker in filing hers. She argued that the employer effectively admitted retaliation by stating that one basis for termination was her failure to follow a “directive” not to discuss complaints about other employees with coworkers.

The panel treats this “direct evidence” theory as forfeited because:

• Wargo did not plead or argue this theory in her complaint;
• She did not advance it in her opposition to summary judgment, despite knowing the stated reasons for her termination; and
• She raised it for the first time in a motion for reconsideration, which the district court dismissed under Sixth Circuit precedent (citing Brumley v. United Parcel Service, Inc., 909 F.3d 834 (6th Cir. 2018)).

On appeal, Wargo’s briefing did not meaningfully challenge the district court’s denial of reconsideration. Under Sommer v. Davis, 317 F.3d 686 (6th Cir. 2003), issues not argued in the briefs—even if technically listed—are deemed forfeited. The panel accordingly declines to consider this late‑raised direct‑evidence theory.

2. Indirect‑evidence retaliation and causation

Absent direct evidence, Wargo needed to establish a prima facie case of retaliation by showing:

1. She engaged in protected activity (here, internal complaints arguably opposing unlawful harassment);
2. MJR knew of that protected activity;
3. MJR thereafter took a materially adverse action against her (termination); and
4. There was a causal connection between the protected activity and the adverse action.

The panel does not dwell on elements (1)–(3); instead, it resolves the case on element (4): causation.

The employer argued at summary judgment that Wargo could not show that any protected activity caused her termination. In response, Wargo devoted less than a page to retaliation in her brief below. That brief:

• Listed communications she had made to management; and
• Concluded, without analysis, that she was “retaliated against as shown by the arguments in the preceding section” of her response.

However, the preceding section addressed only harassment and discrimination, not retaliation causation. There was no discussion of:

• Temporal proximity between protected activity and termination;
• Differential treatment compared to coworkers who did not complain;
• Any statements or pattern linking complaints to discipline; or
• Evidence undermining MJR’s stated reasons as pretext for retaliation.

Relying on Cockrun v. Berrien County, 101 F.4th 416 (6th Cir. 2024), the panel characterizes this as a “perfunctory” argument lacking the “effort at developed argumentation” required to preserve an issue. As such, Wargo forfeited the causation issue, and her retaliation claim fails at the prima facie stage.

D. Procedural Forfeiture and Appellate Practice Lessons

Throughout the opinion, the Sixth Circuit emphasizes not only substantive employment law standards but also procedural rigor:

• Forfeiture of unraised theories: The court relies on cases such as Bridgeport Music, Inc. v. WM Music Corp., 508 F.3d 394 (6th Cir. 2007), and Michigan Bell Telephone Co. v. Strand, 305 F.3d 580 (6th Cir. 2002), to reiterate that arguments not raised in district court cannot be advanced for the first time on appeal.
• Forfeiture by inadequate briefing: Even if an issue is technically mentioned, a mere “drive‑by” paragraph with no substantive legal development can be forfeited, as in Cockrun.
• Reconsideration motions are not vehicles to introduce new theories that could have been raised earlier. The panel endorses the district court’s reliance on Brumley and Sommer to reject Wargo’s late‑emerging direct‑evidence theory.

The consequence is that several potentially colorable or at least arguable aspects of Wargo’s case—most notably, her contention that she was punished for discussing complaints—never receive full merits analysis because they were not properly preserved.

V. Complex Concepts Simplified

This opinion touches on numerous technical doctrines. The following simplified explanations may help clarify them.

1. Hostile work environment

A hostile work environment exists when:

• There is unwelcome conduct (words, actions, physical contact);
• It is based on a protected characteristic (e.g., sex); and
• It is severe or pervasive enough that:
  • The employee personally finds it abusive; and
  • A reasonable person in the employee’s shoes would agree that the environment is hostile or abusive.

One or two isolated events usually are not enough unless extremely serious (e.g., physical assault). The court looks at the whole picture: frequency, severity, whether it is humiliating or threatening, and the effect on work.

2. Quid pro quo sexual harassment (ELCRA)

Under Michigan’s ELCRA, quid pro quo harassment occurs if:

• An employee is subjected to unwelcome sexual conduct or advances; and
• The employer explicitly or implicitly makes employment decisions (hiring, firing, promotion, pay) based on the employee’s response (submitting to or rejecting that conduct).

For example, “Sleep with me or you’ll be demoted” is classic quid pro quo harassment. ELCRA explicitly recognizes this theory; Title VII addresses it as a form of discrimination, but here, the panel simply notes the theory was not preserved.

3. Adverse employment action (post‑Muldrow)

An adverse employment action is an employer decision that harms the employee’s job in some concrete way. After Muldrow, a plaintiff does not need to show an “ultimate” action like firing or demotion, but must show:

• Some injury to the terms, conditions, or privileges of employment; and
• That the change left the employee worse off in a real, job‑related sense.

Examples typically include:

• Reduction in pay or benefits;
• Significant loss of responsibilities or prestige;
• Unwanted transfers that meaningfully damage opportunities or conditions (worse schedule, longer commute, undesirable tasks).

A pure lateral transfer, without evidence of worsened conditions, usually is not enough.

4. “Similarly situated” comparators

To show disparate treatment based on sex, a plaintiff often must point to a comparator—a coworker of a different sex who:

• Had a similar job;
• Reported to the same or similar decision‑makers;
• Engaged in comparable conduct (same rules violated, similar job performance issues); but
• Was treated more favorably (e.g., not fired, not demoted).

Minor differences in job duties or history are tolerated, but the key facts must line up in the “relevant aspects.” A higher‑ranking, more experienced manager is typically not “similarly situated” to a less experienced employee applying for a promotion.

5. Protected activity: participation vs opposition

• Participation: Involves taking part in a formal legal process under Title VII/ELCRA—such as filing an EEOC charge, answering questions in an EEOC investigation, or testifying in a discrimination suit.
• Opposition: Involves complaining about discrimination or harassment—internally (to HR, or a supervisor) or externally (to a government agency)—even if no formal case has begun yet, as long as the employee has a reasonable, good‑faith belief that the conduct is unlawful.

Employers may not retaliate against employees for either type of protected activity.

6. Prima facie case and pretext (McDonnell Douglas framework)

When there is no direct evidence of discrimination or retaliation, courts use a three‑step analysis:

1. The employee must show initial facts (prima facie case) raising an inference of discrimination/retaliation.
2. The employer must then produce a legitimate reason for the challenged action (e.g., performance, policy violation).
3. The employee must then show that the stated reason is a pretext—typically by proving it is false, incomplete, inconsistently applied, or otherwise suspicious.

If the employee cannot clear the very first step (prima facie case), the court never reaches the employer’s reasons or the question of pretext.

7. Forfeiture vs. waiver

Although the opinion does not dwell on the distinction, in practice:

• Forfeiture is the failure to timely assert a right or argument; courts often treat it as a basis to decline review.
• Waiver is the intentional relinquishment of a known right.

In this opinion, “forfeited” claims are those Wargo either did not raise at all below, or raised only in a cursory manner, or raised too late (e.g., in a reconsideration motion). Appellate courts generally will not rescue such undeveloped or belated arguments.

VI. Impact and Practical Implications

A. Doctrinal impact (despite non‑precedential status)

This opinion is unpublished and designated as “not recommended for publication,” which means it is technically non‑precedential in the Sixth Circuit. Nonetheless, it:

• Provides a concrete example of how the Sixth Circuit is applying Muldrow to lateral transfers, reinforcing that plaintiffs still must show a real, job‑related disadvantage;
• Reaffirms the circuit’s strict approach to the “severe or pervasive” requirement for hostile work environment claims, especially where the alleged conduct is sporadic and only ambiguously sexual;
• Underscores demanding comparator standards for indirect‑evidence discrimination claims under both Title VII and ELCRA;
• Demonstrates the judiciary’s increasing insistence on full and timely development of retaliation theories (participation vs opposition, direct vs indirect evidence, causation) at the summary judgment stage.

B. For employees and plaintiffs’ counsel

• Document specific harms from transfers: After Muldrow, lateral transfers can potentially be adverse actions, but plaintiffs must marshal evidence of concrete negative effects (worse schedule, diminished responsibilities, stalled promotion prospects).
• Be explicit about legal theories: If relying on ELCRA’s quid pro quo harassment or particular theories of retaliation (e.g., discipline for discussing complaints), those theories must be clearly pled and argued early, not saved for reconsideration.
• Develop causation evidence in retaliation claims: Temporal proximity, patterns of hostile treatment after complaints, sudden enforcement of policies, and comparative treatment of non‑complaining employees are all potential evidence. Simply asserting “I complained, then I was fired” without more will generally be insufficient.
• Choose comparators carefully: A valid comparator must closely resemble the plaintiff in role, supervisory chain, and misconduct. Senior managers or employees with substantially different histories will rarely qualify.

C. For employers and defense counsel

• Consistent enforcement of policies (e.g., confidentiality about HR matters, access to secured areas) can support legitimate, non‑discriminatory reasons for disciplinary decisions.
• Prompt, documented internal investigations of complaints, resulting in proportionate discipline (even if not as severe as termination), can demonstrate good‑faith responses to alleged harassment.
• Clear written warnings and directives (such as instructions not to discuss HR matters with coworkers) may be key evidence if employees later violate them and allege retaliation. However, these must be applied in a way that does not itself anti‑retaliation protections (this tension is why plaintiffs must carefully frame such arguments).

D. For courts and legal doctrine

This opinion exemplifies a broader trend: courts are increasingly using procedural doctrines (forfeiture, waiver, inadequate briefing) as gatekeeping devices in complex employment cases. Even where facts might support deeper exploration, failure to preserve or develop arguments can itself dictate outcomes.

VII. Conclusion

Terra Wargo v. MJR Partridge Creek Digital Cinema 14 reinforces several key principles in modern employment discrimination and retaliation law within the Sixth Circuit:

• The “high bar” for hostile work environment claims remains firmly in place; sporadic, ambiguous, or non‑explicitly sexual conduct, even if subjectively distressing, often will not suffice.
• Post‑Muldrow, a lateral transfer must still leave an employee “worse off” in some concrete respect to qualify as an adverse action.
• Indirect‑evidence discrimination claims continue to depend heavily on carefully chosen, truly comparable male employees.
• Retaliation claims require not only proof of protected activity and adverse action, but also a well‑developed theory of causation; failure to brief this adequately can forfeit the claim entirely.
• Procedural discipline—raising all viable theories at the right time and fully briefing them—can be as outcome‑determinative as substantive law in complex employment disputes.

While unpublished, this decision offers a clear, structured application of Title VII and ELCRA principles to a fact pattern that will be familiar to many employment lawyers: interpersonal conflict masquerading as harassment claims, lateral transfers following internal complaints, and discipline tied to alleged breaches of internal HR protocols. It serves both as doctrinal guidance and as a cautionary tale about the importance of precise legal framing and procedural preservation in civil rights litigation.