Labor & Employment Law Daily Wrap Up, DISCRIMINATION—10th Cir.: Gay Walmart employee, subjected to repeated slurs, revives hostile work environment claim, (Jul 14, 2026)

By Todd Harrison, J.D.

Discrete, independently actionable discriminatory acts can form part of hostile work environment claims.

Reversing a district court’s grant of summary judgment against the hostile work environment claim asserted by a former Walmart employee, the Tenth Circuit, in a matter of first impression, determined that discrete, independently actionable discriminatory acts can support a hostile work environment claim, and the district court had erred in relying on a “steady barrage” of discriminatory comments formulation in its grant of summary judgment. The appellate court did, however, affirm the grant of summary judgment against the employee’s claims for disparate treatment, retaliation, and constructive discharge (Sharpe-Miller v. Walmart, Inc., No. 24-2055 (10th Cir. July 13, 2026)).

Slurs, offensive comments. The plaintiff in this case is a gay man who began working for Walmart in 2017. At one point, an assistant store manager had asked him if a man he had seen him shopping with was the employee’s partner. The employee said that the man was not his partner, to which the assistant manager responded, “[G]ood—if homosexuals got any more rights, th[en] we might as well legalize pedophilia and bestiality.”

Another coworker asked the employee “if he was afraid to break a nail” while they were breaking down a pallet, while others used the “F-word” on a regular basis. When the employee transferred to another team, his new supervisor joked about his “cat walk,” that is his tendency to walk in a purportedly feminine manner.

In the summer of 2019, the employee applied for and receive a promotion to a supervisory position. Two minor twin brothers reported that he would make limp-wrist gestures towards them when he walked by.

One day, the employee saw a drawing on a markerboard in the break room depicting a person with the “F-word” written in big capital letters across the forehead. The drawing was allowed to remain up for at least a couple of hours. When the employee spoke with a supervisor about the drawing, she seemed to shrug it off, stating “boys will be boys” before erasing it from the board.

Demotion. As the supervisor of his team, the employee sometimes “butted heads” with the store manager over the belief that his team was being overworked. Eventually, the employee was pulled into an office, informed his work was not satisfactory, and that he could either accept a demotion or face termination. The employee was demoted.

Two weeks later, the employee was informed that he was under investigation for alleged sexual harassment of the two minor twin brothers he had previously supervised. The employee denied the allegations, submitting a written statement stating as such, and never heard anything more with regard to the allegation.

Temporary termination. In April 2021, the employee was summoned for jury duty. He noted his anticipated absence in Walmart’s attendance system and took the day off from work. When he returned for his next scheduled shift, his supervisor informed him that he had been terminated. When the employee protested, he was reinstated. The termination did not cause the employee to work any days without pay. Shortly thereafter, the employee resigned.

Lawsuit. Subsequently, the employee filed this lawsuit, asserting claims for disparate treatment based on his demotion and temporary termination, retaliation, a hostile work environment, and constructive discharge.

Granting Walmart’s motion for summary judgment against all claims, the district court found the employee had failed to establish a prima facie case for discrimination and, even if he had, he could not demonstrate that Walmart’s stated reasons for its adverse employment actions were pretextual. The court also concluded that the employee’s work environment was not severe enough to be intolerable, and rejected his retaliation claim on the basis that he had failed to show he engaged in protected activity.

As to the employee’s claim for a hostile work environment, the district court disregarded many of the discriminatory acts that the employee testified to on various grounds, finding, among other things, that the employee failed to show that he suffered a “steady barrage” of offensive comments that a reasonable person would find hostile or abusive. This appeal followed.

Disparate treatment. First, the court addressed the employee’s claims for disparate treatment based on his demotion and temporary termination. The court affirmed the grant of summary judgment against these claims because the demotion claim was time-barred and found the employee had waived his appellate challenge to the dismissal of his termination-based claim.

With regard to the employee’s demotion-based claim, the court noted that if Walmart were challenging the claim as a hostile work environment claim, a different result might occur based on cumulative discriminatory acts. However, Walmart did not argue that the hostile work environment claim itself was time-barred. It focused its argument on the independent, disparate-treatment claim, and federal and state statutes of limitations started to run for this discrete act on the day that it occurred, sometime in October 2020. Because this claim was filed in 2022, the court found that it was statutorily barred.

Turning to the employee’s disparate treatment claim based on his temporary termination, the court found that he had waived his challenge by not addressing one of the grounds on which the district court disposed of his claim—whether his termination, which was promptly reversed, was an adverse action at all.

Retaliation. Next, the court addressed the employee’s claim for retaliation, finding the employee failed to show that he engaged in a protected activity and affirming the district court’s grant of summary judgment against this claim. The court rejected his argument that his complaint about his team being overworked concerned conduct prohibited by Title VII, and found his written response to the sexual harassment investigation did not involve a communication asserting discriminatory animus.

Hostile work environment. Directing its attention to the employee’s hostile work environment claim, the Tenth Circuit disagreed with the district court’s assessment of several instances of alleged discrimination and with its statement of the hostile work environment standard, finding the employee had provided enough evidence of anti-gay discrimination to support this claim.

Discriminatory acts. The employee argued that the district court disregarded or discounted various instances of sexual-orientation harassment. The court here agreed. The district court had accepted Walmart’s argument that the comments directed towards the employee, such as his “cat walk” or asking “if he was afraid to break a nail” were unrelated to his sexual orientation. However, the court explained that on a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmovant. “Here that means interpreting plausibly homophobic comments as homophobic,” said the court.

Unidentified speakers. As to the district court’s disregarding several alleged comments because the employee did not identify the speaker, the court here noted that it was unclear whether the district court viewed identifying the speaker of each comment as a legal requirement or a factor undermining the employee’s credibility. “Either would be error,” said the court, explaining that the employee’s inability to name individual speakers behind the comments was fair game for testing his memory or credibility on cross-examination, but that was a matter that would have to wait for trial.

Other comments. Somewhat relatedly, the district court stated that “Plaintiff admitted that several of these derogatory comments were not directed at him.” The court did not explicitly state whether that merely affected the severity of those comments or whether they were excluded from its analysis. The Tenth Circuit explained that discriminatory comments directed at a plaintiff may increase their severity, but discrimination directed at others is still relevant to a hostile work environment analysis. Such comments can still impact the work environment, observed the court, stating that “It is reasonable to infer that a gay man would suffer when his coworkers deride gay men generally or use gayness as an insult.”

Work performance. In addition, the district court stated that the comments and incidents in question did not appear to affect the employee’s work performance. The Tenth Circuit noted that interference with work performance can be a relevant factor in the hostile work environment analysis, but this factor is far from dispositive.

Discrete acts. Lastly, the Tenth Circuit disagreed with the district court’s conclusion that “discrete acts” such as the employee’s demotion should be excluded from the hostile work environment analysis. Although the district court appeared to be correct that the question of whether discrete, independently actionable discriminatory acts was a matter of first impression in the circuit, the Tenth Circuit found that the district court erred in answering that question in the negative.

Finding the Supreme Court’s opinion in Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), to be instructive, the Tenth Circuit noted that although the Court’s primary focus was the operation of the statute of limitations in the Title VII context, it had least suggested that each discriminatory act in a hostile work environment—whether or not amounting to a discrete, independently actionable discriminatory act—can constitute an element of a hostile work environment claim.

Specifically, Morgan analyzed when the statute of limitations for discrete-act and hostile work environment claims expires, and in doing so the Court contrasted discrete-act claims from hostile work environment claims. The Court stated that “[i]n determining whether an actionable hostile work environment claim exists, we look to ‘all the circumstances.’”

This totality-of-the-circumstances approach to hostile work environment claims at least suggests that the Court recognizes that each discriminatory act in a hostile work environment—regardless of whether it amounts to a discrete, independently actionable discriminatory act—can constitute a substantive part of a hostile work environment claim, said the Tenth Circuit.

Green. This suggestion was further expounded on in Green v. Brennan, 578 U.S. 547 (2016), wherein the Court described Morgan as having held that “a hostilework-environment claim is a single ‘unlawful employment practice’ that includes every act composing that claim, whether those acts are independently actionable or not.” Id. at 557 (emphasis added).

According to the Tenth Circuit, this language provides significant support for the view that “the Supreme Court has effectively held that discrete, independently actionable discriminatory acts can be part of a hostile-work-environment claim.” The court went on to note that several other circuits have reached similar conclusions.

Contributing to a hostile work environment. Even if the court were addressing the question on a blank slate, it noted that it would struggle to reach a different answer. It explained that the bedrock hostile work environment test is whether a workplace is so permeated with discriminatory intimidation that it is severe enough to alter the conditions of employment.

“If an employer engages in discrete, independently actionable conduct, such as demoting an employee, as a means of discriminatory ridicule or insult, that necessarily would contribute to a polluted, hostile work environment, just like discriminatory slurs and slights that, standing alone, may not be independently actionable,” said the court.

In sum, the court found that the district court’s order contained several errors that caused it to improperly discount or disregard alleged instances of discrimination relevant to whether a rational jury could find a hostile work environment.

“Steady barrage.” Further, the Tenth Circuit found the district court had legally erred insofar as it required the employee to demonstrate a “steady barrage” of discriminatory comments to prevail on his hostile work environment claim. The court admitted that several of its opinions could be read as suggesting that a hostile work environment requires a “steady barrage” of offensive comments. However, it noted that it “never intended to divert our gaze from the foundational legal test that the Supreme Court has articulated: that is, whether “the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult,’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’”

“Adopting a strict, literal construction of the “steady barrage” language and treating it as a uniform, frequency requirement—irrespective of the unique circumstances of particular cases—would be at odds with that foundational legal test,” said the court.

Supporting evidence. Directing its attention back to the case at hand, the Tenth Circuit found there was sufficient evidence to support a hostile work environment claim. The employee testified to multiple highly offensive homophobic incidents along with facially neutral incidents that could bolster his claim in context.

Employer knowledge. The district court also erred in concluding that because the employee did not report much of the conduct he experienced to management, he had not established that the employer should have been aware of the offensive conduct. The Tenth Circuit explained that multiple supervisors actively contributed to the hostile work environment, which was sufficient for a reasonable jury to conclude that Walmart knew or should have known of the hostile work environment.

Constructive discharge. Finally, the Tenth Circuit affirmed the district court’s grant of summary judgment against the employee’s constructive-discharge claim, finding that although the employee had shown he was subjected to repeated homophobic words and gestures by coworkers and supervisors, he had not shown that a reasonable employee would have been prevented from doing his or her job by these discriminatory words and gestures and left with no choice but to quit.

The case is No. 24-2055.

Judge: Holmes, J.

Attorneys: Derek V. Garcia (New Mexico Legal Aid) for Jerry Sharpe-Miller. Clara Burns (Kemp Smith) for Walmart, Inc.

Companies: Walmart, Inc.

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