In Pannek v. U.S. Bank Nat’l Ass’n, No. 25-3706, 2026 WL 2277080 (6th Cir. Aug. 7, 2026), the court, inter alia, reversed the court’s grant of summary judgment to defendant on plaintiffs’ claims of retaliation asserted under Title VII of the Civil Rights Act of 1964.
After summarizing the law, the court explained why a jury – and not the court as a matter of law – should determine whether the defendant’s proffered reason for plaintiffs’ terminations (a reduction in force) was, in fact, a pretext for unlawful retaliation.
From the decision:
At the pretext stage, Pannek and Strotman must point to “evidence that would allow a reasonable jury to find that” U.S. Bank’s “identified reason” for terminating their employment was pretext for its real retaliatory reason. An employee “can show pretext in three interrelated ways: (1) that the proffered reason had no basis in fact, (2) that the proffered reason did not actually motivate the employer’s action, or (3) that the proffered reason was insufficient to motivate the employer’s action.” These are common ways to show pretext, but they “are not the only ways.” Instead, these “categories are simply a convenient way of marshaling evidence and focusing it on the ultimate inquiry: did the employer fire the employee for the stated reason or not?” The burden of showing pretext “is not heavy, though, as summary judgment is warranted only if no reasonable juror could conclude that the employer’s offered reason was pretextual.” Put another way, an employee “does not need to prove pretext; [he] only needs to show that the question of pretext is a genuine factual dispute.”
A reasonable jury could conclude that U.S. Bank’s supposed reduction in force did not motivate its decision to terminate Pannek and Strotman.
On the one hand, evidence in the record supports U.S. Bank’s claim that Bolton fired Pannek and Strotman because he was downsizing the department. Bolton testified that soon after the reorganization, he began evaluating the CBSS Servicing Group to detect potential synergies and to consolidate some functions. And after evaluating his direct reports for several months, he found that the department could function with fewer employees. Bolton terminated Pannek and Strotman because he decided to eliminate their positions from the organization. If a jury accepts Bolton’s testimony, it could conclude that U.S. Bank fired Pannek and Strotman as part of a workforce reduction.
But on the other hand, some evidence undercuts U.S. Bank’s proffered reason. Start with the timing. Bolton learned about the ethics complaint two days after Pannek filed it. And a few days after that, Bolton “question[ed] the timing” of the complaint, asserting that Pannek filed it because he was worried about his future at U.S. Bank. Bolton also said he “wouldn’t be surprised to see [Strotman] take a similar tac[k]” and file his own ethics complaint. In the same breath, Bolton announced his plan to fire Pannek and Strotman. Coupled with other evidence, “such temporal proximity can be used as indirect evidence to support an employee’s claim of pretext.”
It also seems that the terminations were not anticipated as part of the reorganization. David Little, Bolton’s supervisor and an executive vice president at U.S. Bank, testified that he had “[n]o expectations” that any employees would be fired because of the reorganization. He explained that U.S. Bank’s vice chairman restructured the divisions to streamline the bank’s consumer side. In fact, around the time of Pannek’s and Strotman’s terminations, Bolton had open positions on his team for “risk and controls” and “risk strategy.” Bolton could not recall considering whether Pannek and Strotman were good fits for those positions.
It further seems that U.S. Bank failed to follow its process for assessing employees and determining whom to terminate during a reduction in force. U.S. Bank’s PGA form “must be completed” when multiple employees are being “considered for elimination, but not all employees in the job will be severed.” Watson, a U.S. Bank HR business partner, testified that Pannek’s and Strotman’s terminations were “subject to th[e] [PGA] process” for which U.S. Bank has “written policies or guidelines” that it must follow. On April 2, 2018, Bolton stated that he was firing Pannek and Strotman as part of a “severance exercise,” and he prepared the PGA forms later that month. And although certain parts of the PGA process needed to be completed with HR, Bolton completed the PGA exercise on his own. Thus, Bolton seemingly failed to follow U.S. Bank’s termination policy by deciding to fire Pannek and Strotman before completing the PGA process—a process U.S. Bank takes so seriously that it later fired Gemrich, in part, for failing to properly execute a PGA.
Typically, “an employer’s failure to follow self-imposed regulations or procedures” will not, on its own, suffice to show pretext. That said, an employer’s failure to follow its own policies and procedures, “while not enough on its own to establish pretext, can be considered as part of the constellation of evidence.”
U.S. Bank pushes back on Pannek and Strotman’s pretext arguments. It says that there is nothing suspicious about the timing of Pannek’s and Strotman’s terminations. U.S. Bank points to an email Bolton wrote months before Pannek filed the ethics complaint that shows he wanted to move some of Pannek’s direct reports over to Roberts. But this email shows, at most, that Bolton contemplated reshuffling duties, not terminating employees. Nor does the email mention Strotman.
U.S. Bank also claims that testimony from one of its current employees, Lydia Buster, shows that the timing of Bolton’s termination decisions had no connection to the ethics complaint. Buster testified that Pannek called his ethics complaint an “insurance policy” to keep his job. R. 42, PageID 1998. But Pannek disputes ever speaking to Buster about his ethics complaint. Whether to credit Buster’s or Pannek’s testimony is for a jury to decide. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (“Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.”).
U.S. Bank argues that Bolton’s failure to follow the PGA process is not evidence of pretext because it is a “mere guideline[ ] that managers are not required to use.” And Watson’s testimony supports this contention. Watson testified that the PGA is a “guideline,” and that she would classify Bolton’s evaluation of the CBSS Servicing Group as a PGA. But other evidence cuts against U.S. Bank’s assertion. Another HR business partner—Grey—testified that a manager completes the PGA form at the start of the reduction-in-force process and before a decision to terminate has been made. And Little, Bolton’s supervisor, testified that no one told him that a PGA of the CBSS Servicing Group was taking place.
(Cleaned up; citations omitted.)
The court concluded that a jury should decide whether U.S. Bank retaliated against Pannek and Strotman, and that while a reasonable jury could find no connection between the sexual-harassment complaint and Pannek’s and Strotman’s terminations, it could also find plaintiffs’ evidence compelling and conclude that a reduction in workforce did not actually motivate Bolton’s actions, and that when the parties present two reasonable interpretations of the evidence, the court must allow the jury to answer the ultimate question of whether the employer terminated the employee in retaliation for opposing an unlawful employment practice.