Rejecting Transfers Dooms Employee’s Harassment Claim

Takeaway: Employers do not automatically bear liability for hostile work environments created by their employees. 

A plaintiff may lose a harassment claim if the employer tries to address their complaint and the plaintiff will not accept a reasonable proposed solution, such as a transfer.

The plaintiff worked in construction and had several jobs in and around Detroit. He obtained certification as a gunite nozzleman, operating equipment that sprayed concrete onto surfaces. In the summer of 2020, he began working for Pullman SST Inc. By October, he had begun gunite work on its project at Michigan Central Station.

According to the plaintiff, after he told a co-worker at Michigan Central Station that he was bisexual, a superintendent and crew members repeatedly harassed him using anti-gay slurs and crew members told him that he looked like a gay man who had been brutally murdered in Michigan. Other co-workers allegedly asked him if he was going to make out with a co-worker. 

Checklist: EEOC Rescinded Its Harassment Guidance: What to Do Now

In February 2021, the plaintiff told a Pullman construction manager that co-workers called him a gay epithet and referred to him by the name of a gay murder victim. He mentioned no names to the manager, who promised to talk with the crew members.

According to the plaintiff, the abuse continued. In early April, the superintendent allegedly asked him a derogatory question and called him a derogatory name. On April 29, the superintendent ran into the plaintiff, who was searching for supplies, asked him where he was going, and began yelling at him. The plaintiff had already been suffering from anxiety attacks and said he had to go home and was sick. The superintendent allegedly used a gay epithet in ordering him to leave. The plaintiff never returned to the worksite.

That day, the plaintiff formally complained about the harassment to Pullman's HR department. A senior HR manager promptly investigated and interviewed the plaintiff, who described the gay epithets and references to a murdered gay man, and other insults. He did not reveal his sexual orientation or disclose other comments by co-workers.

Sample Policy: Nondiscrimination/Anti-Harassment Policy and Complaint Procedure

The HR manager interviewed nine Pullman employees concerning the complaint. These interviews generally contradicted the plaintiff’s claims. The superintendent emphatically denied using derogatory names. A few co-workers remembered discussing the murder of a gay man but not comparing the plaintiff to him. They denied calling him names and several claimed that he did not want to work and had had outbursts.

Nevertheless, Pullman took preventative measures. It issued a written warning to the superintendent for using inappropriate language, required field supervisors to attend anti-harassment training, and required employees to reread and re-sign the anti-harassment policy.

On May 3, the HR manager and the construction manager spoke with the plaintiff. The plaintiff said he would never work at Michigan Central Station again, and Pullman agreed to reassign him to another work site. The plaintiff submitted a doctor's note seeking medical leave until May 10 due to anxiety and panic attacks. He later extended the leave until May 17 and then until May 24.

While on leave, the construction manager called the plaintiff several times about possible reassignments. At first, the manager proposed Toledo or Cincinnati work sites. The plaintiff lived in Michigan and suggested that that was too far to travel. The manager also offered a local project starting the following week, a caulking job, and an overhead demo project. The plaintiff declined all three due to medical leave, fear of heights, and shoulder pain from overhead work.

The plaintiff notified the construction manager that his doctor cleared him to return to work on May 24. He did not respond, and several days later the plaintiff texted the HR manager and asked if he still had a job. She replied that he had declined several jobs for one reason or another and that Pullman considered his refusal to accept work to be a voluntary resignation.

The plaintiff sued Pullman under Title VII of the Civil Rights Act of 1964 and Michigan law. He alleged that Pullman subjected him to a hostile work environment based on his sexual orientation and hence his sex, and that Pullman fired him in retaliation for his complaint. The district court granted summary judgment to Pullman on both claims, and the plaintiff appealed to the 6th U.S. Circuit Court of Appeals.

On appeal, the 6th Circuit questioned whether the plaintiff could pursue a Title VII sexual harassment claim on the basis of being bisexual. Assuming that he could, the court analyzed whether the plaintiff had presented sufficient evidence to ascribe liability to his employer.

In reviewing the facts, the 6th Circuit determined that the plaintiff could not ascribe liability to Pullman because it acted reasonably based on what it knew, and because the plaintiff refused several transfer offers. It found that Pullman had no notice of any anti-gay harassment until May 2021, at which time it tried to move the plaintiff to another location. Because the plaintiff would not accept several opportunities to transfer, he could not establish that Pullman was liable.

The court thus upheld the dismissal of the case at summary judgment.

Hamm v. Pullman SST Inc., 6th Cir., No. 25-1617 (Feb. 12, 2026).

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.