Labor & Employment Law Daily Wrap Up, DISCRIMINATION—SEX—10th Cir.: Court did not err in declining to apply Muldrow to army employee’s hostile environment claim, (Nov 6, 2025)

By Kathleen Kapusta, J.D.

“To say that Muldrow changed this for hostile-environment claims is essentially to say that Muldrow gutted the very thing that distinguishes hostile-environment claims from discrete-act claims.”

Disagreeing with the Sixth Circuit’s interpretation of Muldrow—that a hostile work environment plaintiff need not show “significant harm”—and rejecting an employee’s contention that Muldrow lowered the bar for hostile work environment claims just as it did for discrete-act claims, the Tenth Circuit explained that by “definition, a legally actionable ‘hostile’ work environment is one so bad it ‘alter[s] the conditions of the victim’s employment.’” Accordingly, the court affirmed summary judgment against the civilian army employee’s Title VII sex-based hostile work environment claim (Russell v. Driscoll, No. 24-3187 (10th Cir. Nov. 5, 2025)).

Alleged conduct. The employee was acting chief of an army hospital’s medical logistics division from May 2017 to November 2018 when a female major was appointed division chief. According to the employee, the major held gender-segregated meetings, assigned men and women of her division different books to read, commented on the relative lack of women in supervisory positions, and seemed to allow women to meet with her without a prior appointment while frequently requiring men to make an appointment.

The employee also claimed that the major refused his help when transitioning into the division chief role; publicly criticized some of the decisions he made during his tenure as acting chief; required him to change his email signature from “Chief of Logistics Readiness” to “Readiness Manager”; removed him from a leadership email distribution list; copied others on an email to him about a personal financial matter that he believed was meant to embarrass him; and, in anticipation of her maternity leave, tried to appoint a nonsupervisory female employee as acting chief instead of him.

Investigation and lawsuit. After receiving complaints about both the major and the employee, the major’s supervisor commenced an investigation which found that the major was engaged in gender-based discrimination. The investigation also cleared the employee, who then sued claiming the major had created a hostile work environment in violation of Title VII. Granting summary judgment against his claim, the district court held that the major’s gender-biased actions were not sufficiently severe or pervasive to meet the legal standard for a hostile work environment claim.

Muldrow. On appeal, the employee argued that the district court’s standard for what constitutes a hostile work environment was too high in light of the Supreme Court’s 2024 Muldrow v. City of St. Louis decision. But Muldrow, the Tenth Circuit pointed out, was a case about a discrete discriminatory act. In that case, the Supreme Court, which had granted certiorari “to resolve a Circuit split over whether an employee challenging a transfer under Title VII must meet a heightened threshold of harm—be it dubbed significant, serious, or something similar,” found Title VII imposes no such heightened threshold. Rather, a plaintiff “need show only some injury respecting her employment terms or conditions. The transfer must have left her worse off, but need not have left her significantly so.”

Abrogated? In contending that Muldrow lowered the bar for hostile-environment claims just as it did for discrete-act claims, the employee argued that it abrogated Tenth Circuit and Supreme Court precedent, which had required that the harm complained of be severe or pervasive. Disagreeing that the Supreme Court’s hostile-environment decisions “rest on reasons rejected in [Muldrow],” the appeals court explained that hostile environment claims differ from discrete acts as they involve repeated conduct over a series of days or months or even years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own.

Indeed, said the court, “precisely because ‘not all workplace conduct that may be described as harassment affects a term, condition, or privilege of employment within the meaning of Title VII,’ the complained-of conduct ‘must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’” Further, the court reasoned, “if Muldrow implicitly abrogated the severity/pervasiveness analysis for a hostile-environment claim (as [the employee] contends), then Muldrow abrogated the hostile work environment claim.” Instead, explained the Tenth Circuit, citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998), the Supreme Court has made it clear that the severe or pervasive inquiry is crucial for “prevent[ing] Title VII from expanding into a general civility code.”

Other circuit court decisions. Surveying decisions from its sister circuits, the court noted that the Fourth Circuit, in an unpublished opinion, reached essentially the same conclusion although the Tenth Circuit found it unclear if Muldrow’s effect on hostile-environment claims was actually a contested issue in that case. And while the Fifth Circuit, also in an unpublished decision, rejected an argument that Muldrow applies to hostile-environment claims, its reasoning, said the court, “appears to rest as much on the plaintiff’s failure to develop the argument as it does on the underlying substance.”

Sixth Circuit. The Sixth Circuit, however, in McNeal v. City of Blue Ash, held that, following Muldrow, a hostile-environment plaintiff need not “show ‘significant’ harm.” Rather, the usual inquiry into “whether a hostile-work environment was severe or pervasive enough to violate Title VII” should now be interpreted to mean “whether it left an employee ‘worse off respecting employment terms or conditions.’”

Disagreeing with the Sixth Circuit, the Tenth Circuit explained that by definition, “a legally actionable ‘hostile’ work environment is one so bad it ‘alter[s] the conditions of the victim’s employment.’” “To say that Muldrow changed this for hostile-environment claims,” the court continued, “is essentially to say that Muldrow gutted the very thing that distinguishes hostile-environment claims from discrete-act claims.” Accordingly, the court found the district court did not err in not applying Muldrow to the employee’s claim.

The case is No. 24-3187.

Judge: Tymkovich, T.

Attorneys: Peter Charles Rombold (Hoover, Schermerhorn, Edwards, Pinaire & Rombold) for Paul D. Russell. Duston J. Slinkard, Office of the U.S. Attorney, for Daniel Driscoll.

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