Sixth Circuit: Party Presentation and Forfeiture Limit Sua Sponte Defeat of Title VII Retaliation; RIF “Pretext” Can Reach a Jury

1. Introduction

In Mark Pannek; Thomas Strotman v. U.S. Bank National Association (6th Cir. Aug. 7, 2026), two former executives (Mark Pannek and Thomas Strotman) sued their employer, U.S. Bank National Association, alleging (i) Title VII retaliation after Pannek made an ethics complaint about their supervisor John Gemrich, (ii) Title VII hostile work environment based on sexual harassment (same-sex, allegedly via explicit sexual commentary), and (iii) as to Pannek, ADEA age discrimination (asserted “replacement” by a younger colleague). The district court granted summary judgment to U.S. Bank on all claims.

The Sixth Circuit affirmed dismissal of the hostile-work-environment and ADEA claims, but reversed on the Title VII retaliation claims, holding that a jury could reasonably find the “reduction in force” explanation pretextual. A notable feature of the majority’s reasoning is its reliance on forfeiture and the party-presentation principle: because the employer challenged only causation in the prima facie case, the court refused to affirm on alternative prima facie grounds (protected activity/knowledge) that the employer did not properly present.

2. Summary of the Opinion

  • Retaliation (Title VII): Reversed. Plaintiffs met their “minimal” prima facie burden on causation, and there was a genuine factual dispute on pretext despite U.S. Bank’s stated reason (department downsizing/RIF).
  • Hostile work environment (Title VII): Affirmed for U.S. Bank. Even assuming harassment, the bank established the Faragher/Ellerth affirmative defense (reasonable policy + reasonable corrective action; employees’ unreasonable failure to timely and specifically use reporting mechanisms).
  • Age discrimination (ADEA): Affirmed for U.S. Bank. Redistribution of duties to an existing employee is not “replacement” under circuit law; in a RIF setting, plaintiff offered no additional evidence suggesting age-based targeting.

3. Analysis

3.1 Precedents Cited

A. Standards of review and summary judgment

  • Boyd v. N. Biomedical Rsch., Inc. and Fed. R. Civ. P. 56(a) anchor de novo review and the “no genuine dispute” standard; Halasz v. Cass City Pub. Schs. supplies the requirement to view facts and inferences in the nonmovant’s favor. These principles matter because the panel framed the retaliation question as one for a jury where competing inferences were reasonable.
  • Anderson v. Liberty Lobby, Inc. is invoked to emphasize that credibility contests (e.g., whether Pannek called the ethics complaint an “insurance policy”) are for the jury, not the court at summary judgment.

B. Retaliation framework and causation

  • McDonnell Douglas Corp. v. Green provides the burden-shifting structure for circumstantial-evidence retaliation claims, as applied through Hamm v. Pullman SST, Inc..
  • Niswander v. Cincinnati Ins. Co. supplies the prima facie elements (protected activity, knowledge, adverse action, causal connection).
  • Univ. of Tex. Sw. Med. Ctr. v. Nassar supplies the “but-for” causation requirement for Title VII retaliation. Importantly, the court distinguished the prima facie stage from the ultimate merits: the prima facie burden is “minimal” under Upshaw v. Ford Motor Co..
  • Milczak v. Gen. Motors, LLC is cited for the proposition that close temporal proximity can support causation.

C. Pretext and proof structure

  • Laster v. City of Kalamazoo reiterates that the burden of persuasion remains with the plaintiff.
  • Jackson v. Genesee Cnty. Rd. Comm'n, Miles v. S. Cent. Hum. Res. Agency, Inc., George v. Youngstown State Univ., and Kirilenko-Ison v. Bd. of Educ. of Danville Indep. Schs. collectively frame pretext as a holistic, jury-suitable question when evidence could support competing narratives, and emphasize that a plaintiff need only create a genuine dispute.
  • Pierson v. Quad/Graphics Printing Corp. supports that a reduction in workforce can be a legitimate nonretaliatory explanation, shifting the fight to pretext.
  • Goldblum v. Univ. of Cincinnati supports using temporal proximity as indirect evidence of pretext when combined with other proof.
  • White v. Columbus Metro. Hous. Auth. and Kean v. Brinker Int'l, Inc. guide the “policy deviation” discussion: failure to follow procedures is often insufficient alone, but can contribute to a “constellation of evidence” of pretext.

D. Forfeiture and party presentation on appeal

  • The majority refused to consider alternative prima facie defects (protected activity/knowledge) because U.S. Bank did not raise them properly. It relied on Rockwood Auto Parts, Inc. v. Monroe County and Rybarczyk v. TRW, Inc. (forfeiture generally), Thomas M. Cooley L. Sch. v. Kurzon Strauss, LLP (policies underlying forfeiture), U.S. Nat'l Bank of Or. v. Indep. Ins. Agents of Am., Inc. (forfeiture is not jurisdictional), and Ohio State Univ. v. Redbubble, Inc. plus United States v. Chesney (rare exceptions).
  • The opinion foregrounds the party-presentation principle using Margolin v. Nat'l Ass'n of Immigr. Judges and United States v. Sineneng-Smith, cautioning against courts deciding “points not argued,” echoing United States v. Burke (Scalia concurrence).
  • The majority also addressed “forfeiture of forfeiture,” relying on L.C. v. United States to explain why a party need not preemptively argue forfeiture against an argument the opponent never made in its appellate briefing.

E. Hostile work environment and employer liability

  • Meritor Sav. Bank, FSB v. Vinson and Vance v. Ball State Univ. anchor the concept that Title VII covers hostile work environments and define the supervisor-liability framework (tangible employment action vs. affirmative defense).
  • Oncale v. Sundowner Offshore Servs., Inc. confirms same-sex harassment is actionable when “because of sex.”
  • Thornton v. Fed. Express Corp. supplies the elements of a hostile-work-environment claim.
  • For the “tangible employment action” and “delegated decisionmaking” issues, the court relied on Wyatt v. Nissan N. Am., Inc. and distinguished Williams v. Memphis Light, Gas & Water.
  • For the affirmative defense, the court applied Faragher v. City of Boca Raton and Burlington Indus., Inc. v. Ellerth; for what makes a reasonable policy and practice, it used Clark v. United Parcel Serv., Inc. and Smith v. P.A.M. Transp., Inc..
  • For “unreasonable failure to use corrective opportunities,” the court relied on Thornton v. Fed. Express Corp., contrasted with Wyatt v. Nissan N. Am., Inc. (credible threat of retaliation can change the analysis), and cited EEOC v. AutoZone, Inc. in finding that delayed/vague reporting can satisfy the employer’s second prong.

F. ADEA “replacement” and RIF modification

  • Hayes v. Clariant Plastics & Coatings USA, Inc. and McNeal v. City of Blue Ash supply the McDonnell Douglas structure and ADEA prima facie elements.
  • Grosjean v. First Energy Corp. defines “replacement” and excludes mere accretion/redistribution of duties to existing employees.
  • Lilley v. BTM Corp. and Geiger v. Tower Auto. support that in RIF cases the fourth element is modified: plaintiff must offer additional evidence suggesting impermissible selection (direct, circumstantial, or statistical).

3.2 Legal Reasoning

A. Retaliation: why the claim survives summary judgment

The panel’s retaliation analysis is driven by two themes: (1) the plaintiff-friendly “minimal” prima facie burden on causation, and (2) the pretext inquiry as a fact question where the record supports competing inferences.

  • Prima facie causation: The court credited evidence that Bolton’s “final determination” was made in April—after the March 27 ethics complaint—and that he sought input about Strotman in April, permitting an inference that the decision crystallized after protected activity. Temporal proximity helped, but the court also considered contextual evidence (e.g., testimony that Bolton’s supervisor had “no expectations” of terminations from the reorganization).
  • Forfeiture/party presentation constraint: The majority refused to entertain alternative prima facie defects (protected activity/knowledge) because U.S. Bank did not raise them in the relevant way on appeal. This is a practical, appellate-governance holding: the panel framed it as adherence to the adversarial model, not merely waiver technicalities.
  • Pretext: Although a RIF is a legitimate reason, a jury could find it did not actually motivate the terminations based on: (i) Bolton’s email “question[ing] the timing” and linking the complaint to job insecurity while simultaneously signaling imminent terminations; (ii) evidence that terminations were not anticipated as part of the reorganization (Little’s testimony); (iii) evidence of irregularities in the Peer Group Analysis (PGA) process—Bolton deciding first and documenting later, and completing what should involve HR “on his own.” The court treated policy deviation as supportive but not standalone proof of pretext, consistent with White v. Columbus Metro. Hous. Auth. and Kean v. Brinker Int'l, Inc..

B. Hostile work environment: why the bank avoids vicarious liability

The panel did not definitively resolve whether the alleged sexual commentary met all hostility elements. Instead, it decided the claim on employer liability: no tangible employment action by the harassing supervisor, plus the employer established the Faragher/Ellerth defense.

  • No tangible employment action by Gemrich: Bolton—not Gemrich—made the termination decision, and soliciting performance feedback was not treated as “delegated decisionmaking.”
  • Reasonable care (prong one): U.S. Bank had a policy prohibiting harassment, multiple reporting avenues (including an ethics line), training, investigation, and corrective action. The investigation substantiated wrongdoing; discipline included a written warning and material consequences; harassment stopped thereafter.
  • Unreasonable failure to use corrective opportunities (prong two): Pannek waited about four months and made an initial report centered on the betting incident, referencing “hostile work environment” without meaningful detail about sexual comments; Strotman never reported and provided limited detail during investigation. The court held this satisfied the employer’s second prong.

C. ADEA: why Pannek’s age claim fails

The ADEA claim turned on whether Pannek was “replaced.” The court applied Grosjean v. First Energy Corp.: if an existing employee absorbs duties “in addition to other duties,” or duties are redistributed among existing staff, that is not replacement. Because this looked like a workforce reduction, the court applied Geiger v. Tower Auto.’s modified fourth element and found no additional evidence of age targeting.

3.3 Impact

A. Retaliation litigation and appellate practice

  • Appellate constraint as substantive consequence: The opinion signals that defendants who brief only one prima facie element on appeal risk losing on arguments the appellate court will not supply. The majority’s explicit reliance on Margolin v. Nat'l Ass'n of Immigr. Judges and United States v. Sineneng-Smith elevates party presentation from etiquette to an outcome-determinative discipline.
  • RIF pretext evidence: The decision underscores that RIF rationales are not summary-judgment safe harbors. Emails “question[ing] the timing,” testimony that leaders did not expect terminations, open positions that were not meaningfully considered, and post-hoc or irregular scoring processes (like the PGA) can collectively create a triable pretext issue.

B. Hostile environment compliance

  • The opinion reinforces a compliance roadmap: robust policy + accessible reporting channels + training + timely investigation + meaningful discipline can satisfy prong one.
  • It also warns employees (and plaintiffs’ counsel) that delayed or nonspecific reporting may enable the employer’s prong-two showing, especially absent evidence of credible threats of retaliation of the type discussed in Wyatt v. Nissan N. Am., Inc..

C. ADEA “replacement” in reorganizations

  • The holding continues the Sixth Circuit’s restrictive concept of “replacement” in RIF contexts: plaintiffs must be prepared to prove more than that a younger colleague absorbed many of their responsibilities. Absent hiring/reassignment to fill the specific role—or additional evidence of age targeting—summary judgment is likely.

4. Complex Concepts Simplified

  • McDonnell Douglas burden shifting: A three-step method for circumstantial discrimination/retaliation claims: (1) employee shows a minimal “prima facie” case; (2) employer gives a legitimate reason; (3) employee shows that reason may be pretext.
  • “But-for” causation (retaliation): Under Univ. of Tex. Sw. Med. Ctr. v. Nassar, retaliation must be a necessary cause of the adverse action. At the prima facie stage, however, the Sixth Circuit still treats the plaintiff’s burden as minimal under Upshaw v. Ford Motor Co..
  • Pretext: Evidence that the stated reason is not the real reason—shown by factual falsity, lack of actual motivation, insufficiency, or other circumstances suggesting the explanation is a cover story.
  • Faragher/Ellerth defense: When a supervisor harasses but no tangible employment action results, the employer can avoid liability by proving (1) reasonable prevention/correction and (2) the employee unreasonably failed to use the employer’s corrective options.
  • Tangible employment action: A significant job-status change (e.g., firing). If the harassing supervisor is not the decisionmaker and did not effectively control the decision, the “tangible action” hook for automatic vicarious liability may fail.
  • RIF and “replacement” (ADEA): If duties are spread among existing employees, that is generally not “replacement.” In RIF cases, the plaintiff must also offer extra evidence suggesting discriminatory selection.
  • Forfeiture and party presentation: Appellate courts generally decide issues the parties actually argue. If a party fails to raise an argument, it may be treated as forfeited, and the court typically will not decide the case on that unraised ground.

5. Conclusion

Pannek delivers two core takeaways. First, on retaliation, the Sixth Circuit held that where the employer frames the appellate dispute narrowly, the court will not supply alternative prima facie defects, and a “RIF” explanation can be sent to a jury when timing, leadership communications, and process irregularities plausibly suggest pretext. Second, on hostile work environment, the decision reinforces that an employer with a functioning policy, prompt investigation, and corrective action may prevail under Faragher v. City of Boca Raton and Burlington Indus., Inc. v. Ellerth, especially when employees delay or provide only vague reports. Finally, on ADEA, the court reaffirmed that duty-redistribution in reorganizations is not “replacement” and that RIF plaintiffs must bring additional evidence of age-based targeting.