Title VII Pretext Requires Probative Evidence Beyond “Sabotage” Narratives; Retaliation Must Be Exhausted in the Administrative Charge

I. Introduction

In Wendy Davis v. Univ. of Toledo (6th Cir. Jan. 22, 2026) (unpublished), the Sixth Circuit affirmed summary judgment for the University of Toledo on Wendy F. Davis’s Title VII race-discrimination and retaliation claims.

Davis, a Black executive who rose to Chief Human Resource Officer (CHRO), alleged the University terminated her under a pretextual “performance” rationale—claiming her supervisor (Matt Schroeder, the Executive Vice President for Finance) withheld resources and rejected proposals to set her up to fail. She also claimed retaliation for speaking about racial issues in hiring.

The key issues on appeal were (1) whether Davis produced sufficient evidence of pretext under the McDonnell Douglas circumstantial-evidence framework, including by using a purported comparator (David Cutri, a White department head who received a performance improvement plan rather than termination), and (2) whether Davis exhausted her Title VII retaliation claim through her Ohio Civil Rights Commission (OCRC) charge.

II. Summary of the Opinion

The Sixth Circuit held that Davis failed to create a genuine dispute of material fact on pretext. The record showed significant HR performance breakdowns (I-9/IRCA compliance deficiencies, a botched collective bargaining agreement process, FMLA compliance weaknesses, medical-center hiring delays, and high HR leadership turnover with complaints about Davis’s management). The court rejected Davis’s “sabotage” theory as unsupported speculation and held her comparator argument failed because Cutri’s issues were not of similar severity or duration and because University policy did not require progressive discipline or a PIP before termination.

On retaliation, the court affirmed dismissal for failure to exhaust because Davis’s OCRC charge alleged discrimination but did not mention retaliation. A later position statement referencing protected activity did not salvage exhaustion on the theory Davis advanced on appeal.

III. Analysis

A. Precedents Cited

  • Walden v. Gen. Elec. Int'l, Inc., 119 F.4th 1049 (6th Cir. 2024): Cited for de novo review of summary judgment and the requirement that the nonmovant present “significant probative evidence,” not conjecture. The panel used Walden to frame the evidentiary burden Davis had to meet at the pretext stage.
  • Patterson v. Kent State Univ., 155 F.4th 635 (6th Cir. 2025): Used for summary judgment principles (no speculation) and for the elements of the prima facie case under McDonnell Douglas. It also supported affirmance “on any grounds supported by the record and raised below.”
  • Tennial v. United Parcel Serv., Inc., 840 F.3d 292 (6th Cir. 2016): Cited to distinguish direct from circumstantial evidence and to support using comparator evidence in the pretext inquiry—while still requiring comparators be truly comparable.
  • McNeal v. City of Blue Ash, 117 F.4th 887 (6th Cir. 2024) and McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973): The framework governing circumstantial Title VII cases; here, the dispute was exclusively about the third step—pretext.
  • Chen v. Dow Chem. Co., 580 F.3d 394 (6th Cir. 2009): Provided the canonical “three paths” to prove pretext: no basis in fact, did not actually motivate, or insufficient to motivate. The panel treated Davis’s arguments as fitting the second and third paths and relied on Chen to reject a narrative that conflicts with a record of sustained performance problems.
  • Tingle v. Arbors at Hilliard, 692 F.3d 523 (6th Cir. 2012): Used to emphasize that pretext analysis is ultimately about whether the employer “made up” its reason, not merely whether the employee disputes the employer’s assessment.
  • Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078 (6th Cir. 1994): Invoked to reject reliance on the prima facie case alone at the pretext stage absent evidence directly challenging the employer’s stated reason.
  • Griffin v. Finkbeiner, 689 F.3d 584 (6th Cir. 2012) and Johnson v. Interstate Brands Corp., 351 F. App'x 36 (6th Cir. 2009): Cited in the opinion’s footnote to explain why “other employees were treated differently” arguments must be logically tied to the plaintiff’s termination and supported by more than bare assertions.
  • EEOC v. Ford Motor Co., 1996 WL 557800 (6th Cir. Sept. 30, 1996): Cited for the proposition that an agency “cause determination” has “practically zero” evidentiary value because the court can evaluate the underlying evidence itself.
  • Bashaw v. Majestic Care of Whitehall, LLC, 130 F.4th 542 (6th Cir. 2025) and Goldblum v. Univ. of Cincinnati, 62 F.4th 244 (6th Cir. 2023): Provided the “similar in all relevant respects” comparator requirement, including same supervisor/standards and similar misconduct. The panel used these cases to hold that differences in seriousness and trajectory of performance issues defeat comparator status.
  • Gunn v. Senior Servs. of N. Ky., 632 F. App'x 839 (6th Cir. 2015): Used by analogy to show why improved performance after discipline can meaningfully distinguish a comparator from a plaintiff with continuing deficits.
  • White v. Columbus Metro. Hous. Auth., 429 F.3d 232 (6th Cir. 2005): Cited for the rule that an employer’s failure to follow self-imposed procedures is “generally insufficient” to establish pretext—especially where policies are discretionary.
  • Laster v. City of Kalamazoo, 746 F.3d 714 (6th Cir. 2014): Provided the prima facie elements of Title VII retaliation.
  • Younis v. Pinnacle Airlines, Inc., 610 F.3d 359 (6th Cir. 2010) and Abeita v. TransAmerica Mailings, Inc., 159 F.3d 246 (6th Cir. 1998): Central to the exhaustion analysis: plaintiffs generally cannot sue on claims not included in the administrative charge, and retaliation is not implied where the charge narrative does not mention it.
  • Davis v. Sodexho, Cumberland Coll. Cafeteria, 157 F.3d 460 (6th Cir. 1998): Supplied the “reasonably expected to grow out of” standard for the permissible scope of a judicial complaint relative to the charge. The panel applied it narrowly, finding Davis’s charge narrative did not tee up retaliation.
  • Hayes v. Clariant Plastics & Coatings USA, Inc., 144 F.4th 850 (6th Cir. 2025): Cited to note (without resolving) whether a post-charge letter can amend a charge for exhaustion purposes, signaling skepticism.
  • Krstovska v. Staunton Fin., Inc., 2025 WL 1524456 (E.D. Mich. May 27, 2025) and Tobias v. Terex, USA Inc., 2022 WL 3686423 (E.D. Mich. Aug. 25, 2022): Cited as district-court authority emphasizing that the charge itself is the “guiding document” for expected investigatory scope.
  • McPherson v. Kelsey, 125 F.3d 989 (6th Cir. 1997): Used to find forfeiture where an argument is only perfunctorily raised on appeal.

B. Legal Reasoning

1. The court kept the pretext inquiry anchored to evidence—not narrative

Because the parties agreed on (i) a prima facie case and (ii) a legitimate, nondiscriminatory reason (performance), the appeal turned entirely on whether Davis produced evidence from which a jury could find that the stated reason was pretextual. The panel emphasized summary judgment discipline: under Walden v. Gen. Elec. Int'l, Inc. and Patterson v. Kent State Univ., conjecture about sabotage does not create a genuine issue of material fact.

2. “Withholding resources” and “rejecting ideas” did not show the reason “did not actually motivate” termination

Davis framed pretext as institutional sabotage—budget constraints and proposal rejections allegedly engineered to produce failure. The panel rejected this as lacking evidentiary support and as inconsistent with record facts showing multi-year budget pressure and no targeted deprivation. It also treated the “we later adopted her I-9 vendor idea” point as beside the core question: the employer’s stated reason was broad failure in core HR functions, not the quality of one proposal.

The opinion’s core move was to contrast a “forest” of operational breakdowns (IRCA/I-9 exposure, CBA cost miscalculation and renegotiation problems, FMLA audit vulnerabilities, medical-center recruitment delays, and turnover/morale problems) against a “trees” theory focused on disputed managerial choices and resource requests. In effect, the court treated the cumulative performance record as making “poor performance” the only explanation supported by the record—echoing Chen v. Dow Chem. Co..

3. Comparator evidence failed because similarity requires comparable misconduct and trajectory

Davis argued that David Cutri, a White department head reporting to Schroeder, received a reprimand and PIP rather than termination—implying her termination was too harsh to be genuine. The panel accepted similarity in role/supervision but rejected similarity in conduct and severity: Cutri’s department failed a single assessment and improved quickly on the PIP, while Davis faced multiple serious deficiencies across the HR portfolio. Under Bashaw v. Majestic Care of Whitehall, LLC and Goldblum v. Univ. of Cincinnati, that mismatch defeats comparator status.

4. No inference from the absence of a PIP where policy is discretionary

Davis attempted to convert the difference in discipline into a “policy deviation” argument. The panel responded in two steps. First, under White v. Columbus Metro. Hous. Auth., even failure to follow self-imposed procedures is usually not enough for pretext. Second, the record showed there was no mandatory progressive discipline policy for at-will employees like Davis: the University retained “sole discretion” to terminate. Thus, there was no policy violation to support pretext.

5. Retaliation was barred by exhaustion because the charge narrative did not mention it

The court treated exhaustion as a notice-and-process requirement: the employer must have notice, and the agency must have the first opportunity to investigate and conciliate. Under Younis v. Pinnacle Airlines, Inc. and Abeita v. TransAmerica Mailings, Inc., retaliation is not exhausted where the charge narrative describes discrimination (budget cuts, sabotage, scrutiny) but does not allege protected activity and reprisal.

Davis pointed to a later position statement referencing her documentation of discriminatory hiring deficiencies. The panel noted that the Sixth Circuit has not definitively decided whether such a post-charge submission can amend the charge, citing Hayes v. Clariant Plastics & Coatings USA, Inc., and observed district-court authority rejecting amendment-by-responsive-documents (e.g., Krstovska v. Staunton Fin., Inc.; Tobias v. Terex, USA Inc.). But the decisive appellate point was narrower: Davis did not develop an argument on appeal that her later submission amended the charge, and the “reasonably expected to grow out of” theory failed because nothing in the charge would prompt an investigation into retaliation.

C. Impact

  • Pretext demands probative proof, not workplace “sabotage” storytelling: The opinion reinforces that, once an employer points to concrete performance deficiencies, a plaintiff must produce evidence that the stated rationale was fabricated or not truly driving the decision, not merely evidence of disagreements over resources, priorities, or managerial choices.
  • Comparator rigor remains high at the pretext stage: Even where a comparator shares the same supervisor and department-head status, differences in the number, seriousness, and persistence of deficiencies (and improvement after discipline) can defeat “similar in all relevant respects.”
  • Progressive discipline arguments are weak where policies are discretionary: Employers with discretionary discipline policies reduce exposure to “you didn’t PIP me” theories, particularly for at-will executives.
  • Exhaustion remains a frequent dispositive defense for retaliation: The decision underscores that plaintiffs should explicitly allege retaliation in the charge narrative when they intend to litigate it, rather than assume it will be inferred from a discrimination allegation. It also signals continued skepticism that post-charge submissions can expand the lawsuit’s scope.
  • Agency cause determinations have limited litigation leverage: By reiterating the low evidentiary value of cause determinations (EEOC v. Ford Motor Co.), the opinion discourages treating agency findings as a substitute for record evidence at summary judgment.

IV. Complex Concepts Simplified

  • Summary judgment: A case can be decided without trial when no reasonable jury could find for the nonmoving party based on admissible evidence (not speculation).
  • McDonnell Douglas framework: A burden-shifting method for circumstantial discrimination cases: (1) plaintiff’s prima facie case; (2) employer’s legitimate reason; (3) plaintiff’s proof the reason is pretext.
  • Pretext: Not “the employer was unfair” or “the employer was wrong,” but that the stated reason is not the true reason—i.e., it was made up to mask discrimination.
  • Comparator: Another employee used to infer discrimination; they must be similar in relevant ways and must have engaged in similar misconduct without similar discipline.
  • Exhaustion of administrative remedies: Before suing under Title VII, the plaintiff must present the claim to the EEOC/state agency in a charge so the employer has notice and the agency can investigate.
  • “Reasonably expected to grow out of” the charge: Courts may allow claims not explicitly named in the charge only if the facts alleged would naturally lead an agency to investigate them.

V. Conclusion

Wendy Davis v. Univ. of Toledo affirms a pragmatic Sixth Circuit approach to Title VII summary judgment: where the record shows multiple, concrete performance breakdowns, a plaintiff’s pretext showing must be anchored in probative evidence that the stated reason is false—not in generalized claims of sabotage, disagreement with management decisions, or reliance on a loosely comparable employee who improved under a PIP. Separately, the decision reiterates that Title VII retaliation claims are often lost at the threshold when not clearly presented in the administrative charge narrative, preserving exhaustion as a potent defense.