Russell v. Driscoll

• Court: Court of Appeals for the Tenth Circuit
• Decided: November 5, 2025
• Docket: 24-3187
• Status: Published

Opinion

Appellate Case: 24-3187 Document: 36-1 Date Filed: 11/05/2025 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS November 5, 2025 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

PAUL D. RUSSELL,

Plaintiff - Appellant,

v. No. 24-3187

DANIEL DRISCOLL, Secretary of the Army,

Defendant - Appellee. _________________________________

Appeal from the United States District Court for the District of Kansas (D.C. No. 5:22-CV-04035-DDC) _________________________________

Submitted on the briefs: *

Peter Charles Rombold, Hoover, Schermerhorn, Edwards, Pinaire & Rombold, Junction City, Kansas, for Plaintiff-Appellant.

Duston J. Slinkard, Acting United States Attorney, and Michelle A. Jacobs, Assistant United States Attorney, Office of the United States Attorney for the District of Kansas, Topeka, Kansas, for Defendant-Appellee. _________________________________

Before TYMKOVICH, BALDOCK, and PHILLIPS, Circuit Judges. _________________________________

TYMKOVICH, Circuit Judge.

After examining the briefs and appellate record, this panel has determined *

unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Appellate Case: 24-3187 Document: 36-1 Date Filed: 11/05/2025 Page: 2

_________________________________

Paul D. Russell brought a Title VII discrimination claim against his employer,

the United States Army, alleging his female supervisor treated him and other men in

her division with antagonism and contempt, thus creating a hostile work environment

based on gender. The district court granted summary judgment against Russell, and

he now appeals. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I. FACTUAL BACKGROUND & PROCEDURAL HISTORY 1

During the timeframe relevant to this lawsuit, Russell was a civilian Army

employee working at the Irwin Army Community Hospital, Fort Riley, Kansas.

Russell worked in the hospital’s medical logistics division. He was acting chief of

that division from May 2017 to November 2018, when Major Tamara Tran was

appointed division chief.

Tran quickly began taking steps that—according to a later investigation—were

motivated by gender bias. On one occasion, she held gender-segregated meetings,

assigned the men and women of her division different books to read, and commented

on the relative lack of women in supervisory positions. She also seemed to allow

women to meet with her without a prior appointment but usually required men to

make an appointment.

1 We derive our factual narrative from the district court’s summary judgment order. The district court stated that its narrative came from “facts [that] are stipulated, uncontroverted, or, where controverted, are [presented] in the light most favorable to [Russell].” Aplee. Suppl. App. at 12. As we will discuss below, Russell believes the district court’s narrative was underinclusive, but he does not argue it was inaccurate as far as it goes. 2 Appellate Case: 24-3187 Document: 36-1 Date Filed: 11/05/2025 Page: 3

Russell felt singled out by Tran. She brushed off his assistance when

transitioning into the division chief role; at least once, she publicly criticized some of

the decisions he made during his time as acting chief; she required him to change his

e-mail signature from “Chief of Logistics Readiness” to “Readiness Manager”; she

removed him from an e-mail distribution list meant for leadership; she copied four

other employees on an e-mail to him about a personal financial matter (which Russell

perceived as an attempt to embarrass him); and, in anticipation of her maternity

leave, she tried to appoint a non-supervisory female employee as acting chief (a role

Russell believed should have gone to him). 2

Eight months into Tran’s tenure, and after receiving complaints from logistics

division employees about both Tran and Russell, Tran’s supervisor ordered an

internal investigation. As foreshadowed above, the investigation concluded Tran was

discriminating on the basis of gender in violation of the Army’s equal-opportunity

policy. The investigation cleared Russell of wrongdoing.

The final investigation report issued in July 2019. After pursuing internal

administrative remedies, Russell filed this lawsuit claiming Tran had created a hostile

working environment in violation of Title VII.

Following discovery, the Army moved for summary judgment against Russell.

As relevant here, the district court agreed with the Army’s argument that Tran’s

gender-biased actions were not sufficiently severe or pervasive to meet the legal

2 Tran’s supervisor did not approve Tran’s choice and did not select Russell either, but instead selected a male Army officer to be Tran’s temporary replacement. 3 Appellate Case: 24-3187 Document: 36-1 Date Filed: 11/05/2025 Page: 4

standard for a hostile work environment. The court therefore entered final judgment

in the Army’s favor, leading to this appeal.

II. ANALYSIS

“We engage in de novo review of the district court’s summary-judgment

ruling, applying the same standard that applied in district court.” Greer v. City of

Wichita, 943 F.3d 1320, 1323 (10th Cir. 2019). Russell attacks the district court’s

disposition on two fronts. First, he says the district court’s hostile-environment

standard was too high in light of a recent Supreme Court decision. Second, he claims

the district court did not make all reasonable inferences in his favor. See id. (“[T]he

district court must view the evidence and all reasonable inferences favorably to [the

non-moving party].”). We will address these arguments in turn.

A. Effect of the Supreme Court’s Muldrow Decision

Russell first argues the district court’s standard for what constitutes a hostile

work environment was too high in light of Muldrow v. City of St. Louis, 601 U.S. 346

(2024), which interpreted Title VII. We disagree with Russell’s reading of Muldrow.

Title VII prohibits “discriminat[ion] against any individual with respect to his

compensation, terms, conditions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).

There are two major types of discrimination a plaintiff can allege under this

authority: “discrete discriminatory acts and hostile work environment claims.” Nat’l

R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002) (Morgan). Stated briefly,

a discrete-act claim asserts that a specific employment decision (e.g., discharge,

4 Appellate Case: 24-3187 Document: 36-1 Date Filed: 11/05/2025 Page: 5

forced resignation, or denial of tenure) violates Title VII. See id. at 111–12. In

contrast, a hostile-environment claim asserts that a series of smaller actions—

including ones that would not violate Title VII if analyzed discretely—add up to

create an environment that is itself a deprivation of the terms, conditions, or

privileges of employment. See id. at 115–16.

Muldrow was a case about a discrete discriminatory act. The plaintiff had

worked for years in the city police department’s “specialized Intelligence Division.”

601 U.S. at 350. There, she enjoyed significant perks and prestige. See id. But a

new division commander came in and replaced the plaintiff with a male officer. Id.

at 351. The department reassigned the plaintiff to be a supervisor of a patrol

division. Id. Her rank and pay remained the same but she lost the perks and prestige

of her previous position. Id.

The plaintiff sued under Title VII, claiming her transfer from the Intelligence

Division to a patrol division was a sex-motivated decision that deprived her of the

“‘terms [or] conditions’ of her employment.” Id. (brackets in original) (quoting

§ 2000e-2(a)(1)). She lost at the district and circuit levels, however, in light of

circuit authority requiring her “to show that her transfer effected a significant change

in working conditions producing material employment disadvantage.” Id. at 352

(emphasis added) (internal quotation marks omitted). The Supreme Court 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.” Id. at 353. And the Supreme Court ruled that Title

5 Appellate Case: 24-3187 Document: 36-1 Date Filed: 11/05/2025 Page: 6

VII imposes no such heightened threshold. Id. “[The 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.” Id. at 359. Moreover, the

plaintiff’s allegations “[met] that test with room to spare,” even though her

post-transfer “rank and pay remained the same.” Id.

Russell claims Muldrow lowered the bar for hostile-environment claims just as

it did for discrete-act claims. He seems to understand that the Supreme Court defines

a hostile-environment claim as one where “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,” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (emphasis added)

(citation and internal quotation marks omitted). But he says that “Muldrow abrogates

Tenth Circuit and Supreme Court precedent which previously required that the harm

complained of must be pervavise [sic] or severe.” Aplt. Opening Br. at 10 (emphasis

added).

Russell’s claim that the Supreme Court must have meant to abrogate its own

hostile-environment cases through Muldrow’s discrete-act analysis is essentially

self-defeating, at least at this level of the federal court system. “If a precedent of

[the Supreme] Court has direct application in a case, yet appears to rest on reasons

rejected in some other line of decisions, the Court of Appeals should follow the case

which directly controls, leaving to [the Supreme] Court the prerogative of overruling

its own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S.

6 Appellate Case: 24-3187 Document: 36-1 Date Filed: 11/05/2025 Page: 7

477, 484 (1989). Thus, even assuming Russell is right about Muldrow’s effect, the

Supreme Court has instructed us to continue following its earlier decisions until it

says otherwise.

In any event, we do not believe the Supreme Court’s hostile-environment

decisions “rest on reasons rejected in [Muldrow],” id. “Hostile environment claims

are different in kind from discrete acts. Their very nature involves repeated conduct

. . . over a series of days or perhaps years and, in direct contrast to discrete acts, a

single act of harassment may not be actionable on its own.” Morgan, 536 U.S.

at 115. Indeed, 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.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)

(brackets and internal quotation marks omitted). If that standard is met, the hostile

environment is itself the unlawful “discriminat[ion] against [the victim] with respect

to . . . terms, conditions, or privileges of employment.” § 2000e-2(a)(1); see also

Morgan, 536 U.S. at 117 (“[T]he entire hostile work environment encompasses a

single unlawful employment practice . . . .”).

In short, an inquiry into the severity or pervasiveness of the complained-of

conduct is integral to determining whether any actionable Title VII injury occurred.

Stated differently, if Muldrow implicitly abrogated the severity/pervasiveness

analysis for a hostile-environment claim (as Russell contends), then Muldrow

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abrogated the hostile-environment claim. But the Supreme Court has made clear that

the severity/pervasiveness inquiry is “crucial” for “prevent[ing] Title VII from

expanding into a general civility code.” Oncale v. Sundowner Offshore Servs., Inc.,

523 U.S. 75, 81 (1998).

The Fourth Circuit, in an unpublished decision, reached essentially the same

conclusion about Muldrow as we reach here, although its analysis is brief and it is

unclear if Muldrow’s effect on hostile-environment claims was actually a contested

issue in that case. See Hansley v. DeJoy, No. 23-1426, 2024 WL 4947275, at *2

(4th Cir. Dec. 3, 2024). The Fifth Circuit, also in an unpublished decision, rejected

an argument that Muldrow applies to hostile-environment claims, but its reasoning

appears to rest as much on the plaintiff’s failure to develop the argument as it does on

the underlying substance. See Dike v. Columbia Hosp. Corp. of Bay Area,

No. 24-40058, 2025 WL 315126, at *5 n.25 (5th Cir. Jan. 28, 2025).

The only circuit-level decision we have located stating that Muldrow applies to

hostile-environment claims just as it does to discrete-act claims is McNeal v. City of

Blue Ash, 117 F.4th 887, 904 (6th Cir. 2024). Similar to the Fourth Circuit’s Hansley

decision, it is unclear if Muldrow’s effect on hostile-environment claims was a

contested issue in McNeal. In any event, McNeal holds that, following Muldrow, a

hostile-environment plaintiff need not “show ‘significant’ harm.” 117 F.4th at 904

(quoting Muldrow, 601 U.S. at 355). Rather, the usual inquiry into “whether a

hostile-work environment was severe or pervasive enough to violate Title VII”

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should now be interpreted to mean “whether it left an employee ‘worse off respecting

employment terms or conditions.’” Id. (quoting Muldrow, 601 U.S. at 355).

We disagree with the Sixth Circuit’s analysis. It seems circular to ask

“whether [the hostile work environment] left an employee ‘worse off respecting

employment terms or conditions,’” id. By definition, a legally actionable “hostile”

work environment is one so bad it “alter[s] the conditions of the victim’s

employment.” Meritor, 477 U.S. at 67 (brackets and internal quotation marks

omitted). 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.

For all these reasons, we reject Russell’s argument that the district court erred

when it did not apply Muldrow to his hostile-environment claim.

B. Summary Judgment Inferences from the Internal Investigation Report

The Army’s internal investigation report states that Tran “created a hostile

work environment,” Aplt. App. vol. 4 at 505, or a “toxic work environment,” id.

at 510. Discussing these findings, the district court noted the report never

“assesse[d] the severity or pervasiveness of [the] hostile work environment—an

analysis required by the governing law,” and therefore “the court [could not] adopt,

whole hog, the conclusions of the internal investigation.” Aplee. Suppl. App. at 47

n.9. Russell “acknowledges that the [district court] was correct in this regard,” but

he says the district court was still “required to give the findings of the investigation

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due weight and to grant [him] all reasonable inferences which could be made from

those findings.” Aplt. Opening Br. at 11.

We conclude this argument is waived for lack of development. Russell simply

declares, without citation to authority, that the district court had a duty to treat the

internal investigation report—both its factual and legal conclusions—as evidence to

be weighed in the summary judgment balance like all other evidence. This may or

may not be correct, but it is not self-evidently correct, and we have no duty to find

support for the argument ourselves. See, e.g., Eateries, Inc. v. J.R. Simplot Co.,

346 F.3d 1225, 1232 (10th Cir. 2003) (“A party forfeits an issue it does not support

with legal authority or argument.” (internal quotation marks omitted)). We therefore

do not address this argument further.

III. CONCLUSION

We affirm the district court’s judgment.