Labor & Employment Law Daily Wrap Up, DISCRIMINATION—RACE—3d Cir.: Black factory manager, suspended for perceived threats, could not establish discrimination, retaliation, (Aug 14, 2026)

By Jason Albright, J.D.

He texted DSM Biomedical leadership a link to a song called “Rat in mi Kitchen.”

A Black factory manager who took a new job, after he was suspended for texting two perceived threats to an employee group chat, failed to establish race discrimination or retaliation, despite his claims that a white executive discriminated against him by doing an extra safety audit, keeping his factory on a list of sites with safety problems, and being rude. Though he alleged discriminatory acts, none of them harmed an identifiable term of his job, the court found, and he pointed to no evidence that any of them was motivated by his race (Gabriel v. DSM Biomedical, Inc., No. 25-2630 (3d Cir. Aug. 13, 2026)).

DSM Biomedical. DSM, according to the appeals court, is a European conglomerate with many divisions, including one for Health, Nutrition, and Care. One unit of the Health Division is DSM Biomedical. DSM routinely audits safety across its various sites.

Top ten. It keeps a list of the top ten sites company-wide that need safety improvements, using that list to monitor them and help them improve. The corporate Safety, Health, and Environment Department develops and proposes the top-ten list based on the number of injuries, injury rate, seriousness of incidents, and safety culture at each site. When one of the sites on the list falls within the Health Division, the Health Division President can veto the choice. In practice, however, he always followed the Safety Department’s recommendations about which sites to add or remove. In 2019, a DSM Biomedical factory in Pennsylvania was put on that list because of recurring safety problems, and the factory stayed on it through 2025.

Senior Director of Operations. In 2020, after the factory was listed for extra safety help, the employee started work as DSM Biomedical’s Senior Director of Operations. He managed the factory and was responsible for safety there. His supervisor, friend, and mentor was DSM Biomedical’s president.

Safety problems flagged. The factory had a routine corporate operational audit in 2021 and a routine peer-to-peer audit in 2022. At the start of 2023, DSM’s CEO was concerned that the factory had suffered two reportable injuries in a single month, and both had been reported late. He thus asked for another, unannounced audit in 2023, ahead of the usual cycle. The Head of the Safety Department agreed and supplied an auditor from his own team. Though the audit praised the factory’s progress, it flagged several safety problems.

Targeted by Head of Safety? The employee felt targeted by the Head of Safety, a white man. In mid-2022, the two met in person for the first and only time. The meeting was “awkward.” The factory manager alleged that the Head of Safety gave him a “weird” look, which at the time he did not believe was related to his race. In hindsight, he believed that the Head of Safety had been surprised to learn that a Black man was in charge. He reevaluated the meeting based in part on later conversations with two other Black employees and frustration that the factory remained on the top-ten list. He also considered two incidents, one at the start of 2023 and one a year later, when the Head of Safety had mistakenly criticized the factory for failing to follow a safety policy.

Investigation, “microaggressions” found. At the start of 2024, after the second incident, the president asked HR to investigate “bias against [the Factory] and in particular against [the factory manager] himself.” During that investigation, the president accused the Head of Safety of racial bias against Black employees. The investigation found that the Head of Safety had been rude and intimidating and was guilty of a few “microaggressions or un-conscious bias comments” but no “blatant racial discrimination.”

President leaves, retention bonus offered. DSM worried that these incidents could tempt the factory manager to leave, and it valued his work. So that spring, after the president announced that he was leaving for a new employer, DSM offered the factory manager a $400,000 retention bonus. He did not accept, however, believing that the bonus depended on his reconciling with the Head of Safety.

Other job offer and EEOC charge. “Matters came to a head in mid-June 2024,” according to the court. The factory manager received a formal job offer from the company that the president had just joined. Three days later, the factory manager filed an EEOC discrimination charge against DSM. He was slated to lead an important call with a major customer the following week, but he clashed with DSM Biomedical’s new interim president over that call, leading the interim president to complain to human resources about his conduct.

“Rat in mi Kitchen” and “war.” Feeling betrayed, according to the court, the employee texted the DSM Biomedical leadership a link to a song called “Rat in mi Kitchen.” Looking up the lyrics, the interim president understood them as threatening violence against the “rat,” or betrayer, and feared he was being targeted. The next day, the employee texted the team a link to a video in which the speaker declares “war” against anyone who has been “scheming” against her.

Suspension. When the company’s Health Division president heard about the messages, he decided that the employee should no longer work for DSM Biomedical. The same day as the second text, DSM Biomedical suspended him with pay pending further investigation. Though the investigation was a necessary formality, the Health Division president saw the messages as “beyond the pale,” according to the court. He had no plans to let the employee come back.

Departure and lawsuit. The same day he was suspended, the employee accepted a job offer from another employer. He then filed suit against DSM Biomedical under Title VII, alleging race discrimination by the Head of Safety and retaliation by DSM for filing his EEOC charge. The district court granted DSM summary judgment on both claims, and he appealed to the Third Circuit.

Harm. Affirming, the appeals court found that the employee pointed to four alleged acts of discrimination, but he could not show that any of them harmed an identifiable employment term. He noted DSM’s keeping his factory on the top-ten site list, the “barrage” of safety audits, the addition of another supervisor to whom he reported, and the “intense pressure” he suffered from the Head of Safety’s “bully[ing] [and] intimidati[on].” Though he argued that each of these actions caused him “some harm,” the Third Circuit noted, “he skips over Title VII’s separate requirement that they harm an identifiable term or condition of his employment.”

Here, the appeals court found no identifiable harm. There was “no evidence that his job, salary, benefits, hours, perks, prestige, opportunities, or the like were tied to getting the factory off the top-ten list.” In addition, there was not “any employment term against having a third audit within two and a half years,” and the record did not reflect that the third audit had any impact upon any employment term. Finally, “even if making [the factory manager] report to the Health Division’s Head of Operations in addition to his regular supervisor inflicted ‘some harm’ on the terms of [his] employment, his claim still fails at the next step,” the court concluded.

At bottom, the Third Circuit found, the employee’s claim rested on the “emotional harm” and “massive pressure” that he suffered working for a “bully.” “But that standard confuses his subjective harm with an objective condition of his employment.” The workplace, the court reasoned, though stressful, did not meet Title VII’s high bar for claims alleging either a hostile work environment or constructive discharge. “In requiring only some harm for an adverse-action claim,” the court noted, “Muldrow did not silently gut the high thresholds for claiming a hostile work environment or constructive discharge. Mere emotional harm and stress are not enough.”

Retaliation. The employee’s Title VII claim also failed. Though his EEOC charge was protected activity, his paid suspension could count as an adverse action following Muldrow v. City of St. Louis, State of Missouri, and his suspension ten days after filing the charge was “unusually suggestive of retaliation,” the Third Circuit found, the employer offered a legitimate, nondiscriminatory reason for suspending him: “his (perceived) threats.”

He twice sent messages to a group chat, and one member of the group, with whom he was clashing, viewed the messages as threatening. “Threats, intimidation, and defying supervisory authority all violate DSM’s code of conduct and are grounds for firing,” noted the court, and the employee’s “only rejoinder is that the Health Division President and suspension letter acknowledged the EEOC charge.” This, the court found, was too little for a jury to “reasonably … disbelieve” DSM’s explanation for the suspension.

The case is No. 25-2630.

Judge: Bibas, S.

Attorneys: Evan L. Frank (Law Offices of Alan L. Frank) for Gersen Gabriel. Aurora T. Barnes (DLA Piper) for DSM Biomedical Inc.

Companies: DSM Biomedical Inc.

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