NOT RECOMMENDED FOR PUBLICATION File Name: 24a0146n.06
No. 23-5736
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Mar 27, 2024 ) KELLY L. STEPHENS, Clerk BRET WEHRLY, ) Plaintiff - Appellant, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE EASTERN DISTRICT OF ALLSTATE INSURANCE COMPANY, ) KENTUCKY Defendant - Appellee. ) ) OPINION
Before: BOGGS, McKEAGUE, and LARSEN, Circuit Judges.
BOGGS, Circuit Judge. In this employment-discrimination case, appellant, Bret Wehrly,
filed a wrongful-termination suit claiming 1) religious discrimination, in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”) and the Kentucky
Civil Rights Act, KRS 344.010 et seq. (“KCRA”); 2) a religiously hostile workplace environment,
in violation of Title VII and the KCRA; and 3) retaliation, in violation of Title VII and the KCRA.
The district court granted the motion of Wehrly’s employer, Allstate Insurance Company, to
dismiss Wehrly’s claims of religious discrimination, a hostile work environment, and certain time-
barred retaliation claims, and subsequently granted Allstate’s motion for summary judgment on
Wehrly’s remaining retaliation claims. Wehrly timely appealed both judgments. For the reasons
set forth below, we affirm the district court. No. 23-5736, Wehrly v Allstate Ins. Co.
I. Factual Background
Wehrly, a Field Sales Leader (“FSL”), was employed by Allstate from 1984 until May
2018, when he was terminated for poor performance reviews and failure to meet performance
goals. On March 3, 2015, Allstate published a video on a company blog entitled “Love Has No
Labels.” Wehrly made multiple comments on the blog, the majority of which quoted Biblical
scripture and discussed God, Jesus, and their ideas of love. On June 10, 2015, Allstate made a
blog post entitled “Allstate starts movement to join hands in support of LGBT message.” Wehrly
again made multiple comments, including “It is clear . . . that the Bible condemns homosexuality
as an immoral and unnatural sin . . . Leviticus 18:22 identifies homosexual sex as an abomination,
a detestable sin.”
Wehrly alleges that shortly thereafter his boss, Territorial Sales Leader (TSL) Eric
Harvey, contacted him at the request of Allstate management to ensure Wehrly did not post
further comments on the blog. He also alleges that in a November 2015 meeting, Harvey warned
Wehrly that his leadership skills would be marked insufficient1 in his 2015 final performance
review “because of [his] blog post on the LGBT website.” According to Wehrly, Harvey also
told him “not to make waves” and to “stay off blogs and that kind of thing.” The complaint does
not allege that Harvey mentioned Wehrly’s religion or religious views during this meeting and
or that anyone else from Allstate ever mentioned the blog comments or his religious beliefs during
his employment.
1 Allstate rates job performance in four categories: “better than expected performance,” “expected performance,” “insufficient performance,” and “unacceptable.” The parties sometimes use the term “inconsistent instead of “insufficient.” To avoid confusion, we use the term “insufficient” as that label is used more frequently in the complaint. -2- No. 23-5736, Wehrly v Allstate Ins. Co.
When Wehrly received his 2015 annual performance review in February 2016, he learned
that Allstate had rated his performance “insufficient” in most of the leadership categories and in
overall business goals. The review stated that Wehrly could be defensive and unapproachable.2
Wehrly’s overall business ranking for 2015 was 18 of 26 among regional peers. In March and
April 2016, Wehrly sent emails complaining that he disagreed with the 2015 performance rating
and that he was being persecuted for his outspoken religious beliefs.
In May 2016, during a regional marketing meeting, Wehrly and several other employees
had a loud disagreement and Wehrly was escorted to his car. Organizers of the meeting filed a
workplace violence complaint against Wehrly, which resulted in a one-month suspension with pay
while human resources investigated the incident. In June, Wehrly was reinstated, but received an
“unacceptable behavior notification” letter for “acting inappropriately” and making statements
that “caused all of the leaders in the room to be concerned about the physical meeting environment
and their safety.” Allstate stated that Wehrly’s words, tone, and body language were “beyond
unacceptable,” and that “[u]nprofessional behavior, such as making inappropriate and/or
unprofessional comments, or engaging in intimidating behaviors, or refusing to follow
management direction in the course of [his] job responsibilities with Allstate will not be tolerated.”
Wehrly disputed that he ever conducted himself in an unprofessional manner and again reiterated
that he believed the primary motivations of all involved were discriminatory.
2 Similar ratings and comments were made in his 2013 and 2014 final performance reviews—he “can become overly emotional” and “defensive.” In 2013, Wehrly received “insufficient” ratings in overall business goals, overall success factors, and overall performance. Wehrly filed a complaint alleging that Harvey had threatened him, was age biased, intentionally appointed poor agents in Wehrly’s market, and failed to provide recruiting support. His complaint was investigated and dismissed. In 2014, Wehrly received an overall “expected” performance rating, but his ability to “act like an owner” and “focus on customers” received insufficient ratings. -3- No. 23-5736, Wehrly v Allstate Ins. Co.
In February 2017, a regional human-resources manager and Wehrly’s new supervisor,
TSL Dallas Owen, informed Wehrly that his 2016 performance evaluation had been rated
“unacceptable” in multiple performance areas. Wehrly also received a “60-Day Letter” requiring
him, in order to avoid termination, to meet certain performance goals by April, which he did. In
October 2017, Wehrly asked TSL Owen for a hearing to address his harassment and retaliation
claims, but his request was apparently denied. In February 2018, Wehrly received his 2017
performance evaluation, which gave him an “insufficient” rating for both leadership skills and
overall performance. For the next few months, Wehrly continued to fail to meet his performance
target goals and Allstate fired him in May 2018.
II. Procedural History
Wehrly filed suit against Allstate claiming: (1) religious discrimination under Title VII
and the KCRA, (2) a religiously hostile workplace environment, in violation of Title VII and the
KCRA, and (3) retaliation, in violation of Title VII and the KCRA. Allstate filed a partial motion
to dismiss aimed primarily at counts (1) and (2), which the district court granted (“dismissal
opinion”). The court held that Wehrly failed to allege sufficient facts that Allstate had
discriminated against him because of his Christian faith and failed to allege any discriminatory
harassment on the basis of his religion or that his workplace was permeated with such behavior.
The court also dismissed a portion of his count (3) Title VII and KCRA retaliation claims as time
barred. After discovery, Allstate filed for summary judgment on Wehrly’s two remaining
claims—Title VII retaliation claims for acts that occurred on or after December 14, 2017, and
KCRA retaliation claims for acts that occurred on or after May 19, 2016. On July 18, 2023, the
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district court granted Allstate’s motion for summary judgment (“second opinion”). Wehrly timely
filed this appeal, challenging both district court opinions and orders.
III. Discussion
Wehrly makes two arguments on appeal: 1) that the district court erred in dismissing his
hostile-work-environment claims because it wrongly excluded certain evidence as time barred
under Title VII and the KCRA, and 2) that he had submitted sufficient evidence that his retaliation
claim should have been submitted to a jury and not decided on summary judgment.
A. Motion to Dismiss
We review a district court’s decision to grant a motion to dismiss under Fed. R. Civ. P.
12(b)(6) de novo. Linden v. City of Southfield, 75 F.4th 597, 601 (6th Cir. 2023). To survive a
motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ibid. Twombly and
Iqbal require a plaintiff to “plead facts sufficient to show that her claim has substantive
plausibility.” Johnson v. City of Shelby, 574, U.S. 10, 12 (2014). “We must construe the complaint
in the light most favorable to the plaintiff and accept all allegations as true.” Keys v. Humana, Inc.,
684 F.3d 605, 608 (6th Cir. 2012). But that tenet is inapplicable to legal conclusions couched as
factual allegations. Papasan v. Allain, 478 U.S. 265, 286 (1986).
-5- No. 23-5736, Wehrly v Allstate Ins. Co.
1. Claim of Religious Discrimination
To succeed on a Title VII religious-discrimination claim, an employee must allege
sufficient facts to allow a court to draw a reasonable inference that the employer discriminated
against an employee with respect to his compensation, terms, conditions, or privileges of
employment, because of his religion. Iqbal, 556 U.S. at 678–79; 42 U.S.C. § 2000e-2(a)(1). To
show that termination was because of his religion, the plaintiff “must show that it was the religious
aspect of [his] [conduct] that motivated [his] employer’s actions.” Pedreira v. Kentucky Baptist
Homes for Children, Inc., 579 F.3d 722, 728 (6th Cir. 2009) (second alteration in original) (quoting
Hall v. Baptist Mem’l Health Care Corp., 215 F.3d 618, 627 (6th Cir. 2000)).
The district court dismissed Wehrly’s religious-discrimination claim on the ground that he
failed to meet the plausibility standard that would allow the court to draw a reasonable inference
that Allstate discriminated against him because of his religion. On appeal, Wehrly does not
challenge the district court’s dismissal of his religious-discrimination claim for failure to state a
claim. “[I]ssues not raised in appellate briefs are deemed waived.” United States v. Archibald, 589
F.3d 289, 298 n.7 (6th Cir. 2009). By failing to challenge the dismissal of his religious-
discrimination claim, Wehrly has waived this claim on appeal. White Oak Prop. Dev., LLC v.
Washington Township, 606 F.3d 842, 854 (6th Cir. 2010).
2. Claim of Hostile Work Environment
To bring a cause of action under Title VII for a hostile work environment, Wehrly must
show that: 1) he was a member of a protected class; 2) he was subjected to unwelcome harassment;
3) that harassment was based on his protected-class status; (4) the harassment created a hostile
work environment; and (5) employer liability. Wyatt v. Nissan N. Am., Inc., 999 F.3d 400, 411 (6th
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Cir. 2021). A hostile work environment exists when “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.” Smith v.
Rock-Tenn Servs., Inc., 813 F.3d 298, 309 (6th Cir. 2016) (quotation omitted). We must consider
the totality of the circumstances and look at the frequency and severity of the discriminatory
conduct; “whether it [was] physically threatening or humiliating, or a mere offensive utterance;
and whether it unreasonably interfere[d] with an employee’s performance.” Ibid. (cleaned up). The
conduct must be so severe or pervasive that it “alters the conditions of the victim’s employment”
and creates “an environment that a reasonable person would find hostile or abusive.” Harris v.
Forklift Sys., 510 U.S. 17, 21 (1993)
The district court held that Wehrly’s allegations were insufficient to meet his pleading
burden, as he failed to allege any discriminatory harassment on the basis of his religion.
According to Wehrly’s complaint, his comments on Allstate’s LGBT blog post were allowed to
stay up, and Allstate never took any specific, overt disciplinary action against him because of his
comments—he was simply told not to post any further comments on the blog. The district court
held that while Wehrly did allege that he received an insufficient leadership rating in retaliation
for his comments, he did not allege a single instance of discriminatory intimidation, ridicule, or
insult based on his religion, or that the workplace was permeated with such behavior. The district
court dismissed his Title VII and KCRA hostile-work-environment claims.
On appeal, Wehrly’s sole challenge to the dismissal order is that the district court erred in
not considering all the discriminatory acts alleged in his complaint for a hostile work environment.
Wehrly argues that the court wrongly limited its review of his hostile-work-environment claims
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by not considering Allstate’s actions under Title VII that occurred before December 14, 2017, and
actions under the KCRA that occurred before May 19, 2016.3 But this argument is premised on a
basic misunderstanding of the district court’s order.
The district court did consider all the facts alleged in the complaint including Wehrly’s
2015 blog comment and the 2015 performance review and did not apply the statute of limitations
when it ruled on Wehrly’s hostile-work-environment claim. The district court only addressed
statute-of-limitations issues that had been raised by Allstate in response to Wehrly’s retaliation
claims, not his hostile-work-environment claims.
Wehrly does not challenge any other aspect of the hostile-work-environment ruling, failing
to address the court’s dismissal for failure to state a claim, and he has effectively waived the issue
on appeal. White Oak Prop. Dev, 606 F.3d at 854. Even if he had not waived the issue, based on
our review of the record and taking the facts in the light most favorable to Wehrly, we agree with
the district court that Wehrly failed to plead facts that plausibly establish a hostile work
environment based on his religion.
B. Summary Judgment
The district court granted Allstate’s motion for summary judgment on Wehrly’s
remaining claims for retaliation under Title VII for acts that occurred on or after December 14,
2017, and retaliation under the KCRA for acts that occurred on or after May 19, 2016. We review
3 The calculation of these two dates is not in question. In Kentucky, Title VII claims dual-filed with the EEOC and KCHR—like Wehrly’s—must be filed within 300 days of the alleged unlawful employment practice. Amini v. Oberlin Coll., 259 F.3d 493, 498 (6th Cir. 2001). KCRA claims are governed by a five-year statute of limitations. Ammerman v. Bd. of Educ., 30 S.W.3d 793, 798 (Ky. 2000) (citing KRS 413.120(2)). -8- No. 23-5736, Wehrly v Allstate Ins. Co.
the district court’s summary-judgment decision de novo. SHH Holdings, LLC v. Allied World
Specialty Ins. Co., 65 F.4th 830, 836 (6th Cir.2023). Summary judgment is appropriate where
materials in the record show that “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56. We must “determine
whether the evidence presents a sufficient disagreement to require submission to a jury or whether
it is so one-sided that one party must prevail as a matter of law.” Parrett v. Am. Ship Bldg. Co.,
990 F.2d 854, 858 (6th Cir. 1993) (citation omitted). In so deciding, we view the factual evidence
and draw all reasonable inferences in favor of the non-moving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986) A mere scintilla of evidence is insufficient; there must be evidence
on which the jury could reasonably find for the non-movant. B.F. Goodrich Co. v. U.S. Filter
Corp., 245 F.3d 587, 592 (6th Cir. 2001).
1. Prima Facie Case of Retaliation
Wehrly’s federal Title VII and state KCRA retaliation claims are both evaluated under the
federal standard. Montell v. Diversified Clinical Servs., Inc., 757 F.3d 497, 504 (6th Cir. 2014).
Since Wehrly is attempting to prove retaliation through circumstantial evidence, his claims are
evaluated using the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.
792, 801–05 (1973). Under that framework, Wehrly must show 1) that he engaged in a protected
activity, 2) that Allstate knew of his protected conduct, 3) that Allstate took an adverse
employment action against him after his protected conduct, and 4) that there was a causal
connection between the exercise of Wehrly’s protected right and the adverse action. Montell, 757
F.3d at 504 (citing Hamilton v. General Elec. Co., 556 F.3d 428, 435 (6th Cir. 2009)). If Wehrly
makes out this prima facie case, the burden shifts to Allstate to produce a legitimate, non-
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retaliatory reason for its action. If Allstate does so, the burden shifts back to Wehrly to provide
evidence that a reasonable jury could conclude that Allstate’s reason was pretextual. Ibid.
The district court held that Wehrly met his burden of establishing all four elements of a
prima facie claim of retaliation. On appeal, Allstate argues that Wehrly failed to establish a causal
connection between his protected activity and his termination. To prove causation, Wehrly must
show that his protected activity was a “but for” cause of the employer's adverse action against him,
“meaning the adverse action would not have occurred absent the employer's desire to retaliate.”
George v. Youngstown State Univ., 966 F.3d 446, 459 (6th Cir. 2020) (citing Univ. of Tex. Sw.
Med. Ctr. v. Nassar, 570 U.S. 338, 352, 360 (2013)). In finding a causal connection, the district
court pointed to the fact that after Wehrly had worked for Allstate for nearly three decades, and he
was fired just a few years after his anti-LGBT blog posts and meeting with his manager who
cautioned against making further similar comments. Further, Wehrly complained of discriminatory
treatment for his vocal Christian views, and Wehrly made repeated claims of religious
discrimination between his 2015 blog post and his termination in May 2018. Wehrly first
complained of religious discrimination in his written response to his 2015 performance review. He
renewed those written complaints in response to his 2016 and 2017 performance reviews and
through an HR complaint he filed in March 2018. The district court held that this was enough
evidence to meet the causal-connection element of a prima facie retaliation claim. In response,
Allstate’s argues that Wehrly had similar performance reviews both before and after 2015.
Although this may be true, it does not go to the sufficiency of the evidence but to the merits of
Wehrly’s argument.
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2. Pretext
The district court held, and Wehrly does not dispute on appeal, that Allstate presented a
legitimate, non-retaliatory reason for terminating his employment—the failure to achieve
measurable performance goals. See Abdulnour v. Campbell Soup Supply Co., LLC, 502 F.3d 496,
502 (6th Cir. 2007); Strickland v. City of Detroit, 995 F.3d 495, 512 (6th Cir. 2021). And the
district court held that Wehrly did not provide sufficient evidence to raise a genuine issue of
material fact that Allstate’s reason was pretextual. Pretext can be established by showing that the
employer’s proffered reasons 1) had no basis in fact, 2) did not actually motivate the employer's
action, or 3) were insufficient to motivate the employer's action. Chen v. Dow Chem. Co., 580 F.3d
394, 400 (6th Cir. 2009).
On appeal, Wehrly fails to identify record evidence to show that Allstate’s decision to fire
him was pretextual. Wehrly merely asserts that he had been a long-time employee, had met or
exceeded employee expectations for twenty of twenty-nine years and that after he “posted a
Christian article on the company blog in response to the company’s LGBT positions,” his
“supervisors began a calculated offensive in retaliation against him.” [Appellee Brief at 14] He
states that he received his first unacceptable notifications for behavior and performance issues in
2015 and argues that he was tasked with unreasonable performance goals and subjected to overly
aggressive meetings with supervisors and that his yearly bonuses were subjected to “fines” because
of his insufficient performance ratings.
But Wehrly’s assertion is contrary to the record. He fails to address evidence that he had
been underperforming dating back to 2013, years before the 2015 blog incident and his 2018
termination. He does not grapple with the district court’s conclusion that “[t]he evidence
- 11 - No. 23-5736, Wehrly v Allstate Ins. Co.
overwhelmingly show[ed] that Wehrly had been underperforming for years before his
termination.” Further, as the district court noted, Wehrly points to no evidence to dispute Allstate’s
performance-rating calculations. This includes that, after the blog posts, “Wehrly’s business
ranking for the 2015 period was 18 of 26 amongst his regional peers,” and that at the time of his
termination, Wehrly’s “various production levels were at either the lowest or next to lowest levels
as compared to his peers in the region.” And even discounting the 2015 evaluation, there is no
evidence that Allstate’s performance evaluations for the preceding or succeeding years were based
on anything other than Wehrly’s performance.4 In fact, as the district court noted, the 2015
performance review was not the first time Wehrly had complained of unfair and inequitable
treatment—he had done so previously in 2014. But that complaint was not tied to any alleged
religious discrimination, a point that the district court believed “undercut[] Wehrly’s argument that
Allstate’s reasons [the many examples of underperformance] were merely” a pretext for religious
discrimination. Wehrly does not confront this reason on appeal. In short, Wehrly fails to show that
the district court erred by finding that no genuine issue of material fact remained as to whether
Allstate’s actions were pretextual.
Accordingly, we AFFIRM the district court.
4 The 2015 performance review and subsequent loss of bonus money from that negative performance review do not constitute adverse actions for Wehrly’s retaliation claims because the district court concluded that the relevant statutes of limitations limited those claims for acts that occurred on or after December 14, 2017, for the Title VII claim, and for acts that occurred on or after May 19, 2016, for the KCRA claim. - 12 -