Cheryl Burton v. Centre College of Ky.
CourtCourt of Appeals for the Sixth Circuit
Date FiledOctober 21, 2026
Docket26-5236
JudgeRichard Allen Griffin; John K. Bush; Whitney D. Hermandorfer
StatusUnpublished
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Full Opinion
NOT RECOMMENDED FOR PUBLICATION
File Name: 26a0427n.06
No. 26-5236
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Oct 21, 2026
) KELLY L. STEPHENS, Clerk
CHERYL BURTON,
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
CENTRE COLLEGE OF KENTUCKY; BARBARA ) DISTRICT OF KENTUCKY
LOMONACO; KAY DRAKE, )
) OPINION
Defendants-Appellees.
)
)
Before: GRIFFIN, BUSH, and HERMANDORFER, Circuit Judges.
GRIFFIN, Circuit Judge.
Cheryl Burton alleges that her former employer violated 42 U.S.C. § 1981 by retaliating
against her and constructively discharging her after she asked whether certain staff would have to
take implicit-bias training and raised concerns about race discrimination. The district court
concluded that § 1981 does not cover her at-will employment and thus dismissed the complaint.
We affirm, but for a different reason. Assuming § 1981 applies, Burton has not plausibly stated a
claim for either retaliation or constructive discharge.
I.
Burton, an African-American, worked for Centre College of Kentucky from 2017 to 2023
as a licensed practical nurse under an at-will employment agreement. According to Burton, from
the beginning of her employment, “she and other [African-Americans] were made to feel like
second-class citizens on the predominantly white campus.” Many African-Americans, she says,
No. 26-5236, Burton v. Centre College of Ky.
applied for positions at the school but were passed over in favor of less-qualified white applicants.
And the African-American students with whom she interacted made similar complaints about
racial discrimination. So she took to advocacy, publicly sharing her belief that Centre was racist,
supporting a student-led sit-in, and joining students in “demanding that the college make changes
to ensure” equal protection for non-white students.
By 2021, Burton had seen little improvement. As a result, she accepted another job and
told Kay Drake, the Vice President of Human Resources, that she was resigning “to escape the
culture of racism at Centre.” Pledging cultural change and a raise, Drake convinced Burton to
stay. But “change never came, and the racism persisted.”
Burton therefore continued speaking out. In August 2023, she attended Centre’s opening-
the-school-year conference, where one speaker discussed conducting “Implicit Bias Training,” a
program on subconscious racial biases and how to thwart them. Burton alleges that she “publicly
asked whether Centre’s [HR] staff would” receive such training, implying that they needed it.
One week later, Drake went looking for Burton—unusual for Drake, since “she would
normally summon an employee to come to her office if she needed to speak with them.” When
Burton saw Drake, she became anxious and fearful, especially because Drake appeared “upset and
agitated.” After entering Burton’s office, Drake angrily questioned why Burton “fe[lt] the need to
ask” if the HR staff would be taking implicit-bias training. Burton responded that it was because
Centre “does not hire many black or brown folks” and that “black people don’t feel comfortable
on campus.” When Drake said that she was unaware of any racial problems in Centre’s hiring,
Burton replied, “Well, there are issues, and I know you all know there are issues.” Drake then said
that she had only wanted to understand why Burton asked the question and left.
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This interaction left Burton in tears, anxious, worried for her job, and concerned that Drake
“could potentially take some sort of adverse action against her employment that could negatively
affect her licensure.” When Burton returned home that night, she told her husband what had
happened; he warned her “not to push the issue, or you’ll become a target.”
Later that evening, Burton texted Barbara LoMonaco, Centre’s Vice President for Student
Life, about the encounter and her concerns. And the two talked the next day. LoMonaco agreed
that Drake should not have confronted Burton as she did but told her that she had “no right to have
asked the question” about implicit-bias training at the conference. Burton asked whether it was
“only a problem because a black woman questioned a white woman’s job.” LoMonaco allegedly
retorted, “Cheryl, we can’t hire every black person that applies here.” Burton then told LoMonaco
about her husband’s warning that she would “become a target.” LoMonaco paused and responded,
“Well . . . .”
At that point, LoMonaco’s silence and lack of reassurance allegedly led Burton to feel
unsafe discussing the matter. It also led Burton to fear that Drake would retaliate against her or
that she would be pretextually fired. Ultimately, Burton decided “the only way she could protect
herself professionally was to resign.”
After resigning, Burton sued Centre, LoMonaco, and Drake, bringing retaliation and
constructive discharge claims under 42 U.S.C. § 1981. Defendants moved to dismiss. The district
court granted the motion, holding that § 1981 provides no cause of action for at-will employees in
Kentucky. Burton timely appealed.
II.
“To survive a motion to dismiss, 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.
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662, 678 (2009) (citation modified). A claim is plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. In reviewing a complaint, we accept its well-pleaded factual allegations as true and
view them in the light most favorable to the plaintiff. In re Ford Motor Co. F-150 & Ranger Truck
Fuel Econ. Mktg. & Sales Pracs. Litig., 65 F.4th 851, 859 (6th Cir. 2023) (citation modified).
We review a district court’s dismissal de novo and “can affirm on any grounds.” Gerboc
v. ContextLogic, Inc., 867 F.3d 675, 678 (6th Cir. 2017). Here, the district court dismissed both
of Burton’s claims because, in its view, a Kentucky at-will employee lacks the contractual
relationship necessary to sue under § 1981. We need not reach this issue, however, because Burton
has not plausibly alleged the necessary elements for either retaliation or constructive discharge
and, thus, fails to state a claim for relief.
A.
Beginning with her retaliation claim, Burton must allege facts showing that (1) she engaged
in a protected activity, (2) defendants knew that she was doing so, (3) defendants then took a
“materially adverse” action against her, and (4) “there was a causal connection between the
protected activity and the materially adverse action.” Boxill v. O’Grady, 935 F.3d 510, 520
(6th Cir. 2019). The parties dispute only whether defendants took a materially adverse action
against Burton.
An action is materially adverse if it could “dissuade a reasonable worker from making or
supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.53, 57
(2006). This standard reaches beyond “discriminatory actions that affect the terms and conditions
of employment.” Id. at 64. But it does not encompass every workplace indignity. Indeed, trivial
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harms cannot constitute materially adverse action, so “petty slights or minor annoyances” do not
suffice. Id. at 68.
Here, Burton’s allegations consist of the following. First, after Burton publicly asked
whether HR staff would have to take implicit-bias training, Drake came to Burton’s office and
angrily questioned her. Second, LoMonaco told Burton that she had “no right to have asked the
question,” that Centre could not “hire every black person that applies here,” and then responded
“Well . . .” after Burton relayed her husband’s worry that she would “become a target.”
But these allegations, at most, reflect minor affronts, not materially adverse actions. A
decision from one of our sister circuits illustrates why. In Billings v. Town of Grafton, an employee
complained that a town administrator repeatedly stared at her chest. 515 F.3d 39, 41 (1st Cir.
2008). After learning of her complaint, the administrator summoned the employee to his office,
closed the door, and berated her. Id. at 41–42. He accused her of trying to “embarrass and
humiliate him” by asking questions at a public meeting about an unrelated matter, and he later
criticized her in writing. Id.
The First Circuit held that this “upbraiding,” viewed individually, amounted to a “petty
slight[] or minor annoyance[]” that did not constitute a materially adverse action. Id. at 54 n.13.
By way of comparison, however, the court held that what followed after—the town reprimanding
the employee, forcing her to use personal time for a deposition, transferring her to a less prestigious
job, and threatening “further, more serious discipline”—could deter a reasonable employee from
pursuing a discrimination claim and was therefore sufficiently material. Id. at 42, 54–55.
Burton’s allegations resemble the upbraiding in Billings: Defendants’ comments here may
have expressed frustration, but they contained nothing that would dissuade a reasonable employee
from engaging in protected activity again. Burton does not allege, for example, that Centre
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reassigned her to “more arduous” work or suspended her without pay, as in Burlington Northern,
548 U.S. at 58, 71–73. Nor does she allege that she experienced an accumulating pattern of
intimidation—featuring heightened scrutiny and routine reprimands—like in Laster v. City of
Kalamazoo, 746 F.3d 714, 732 (6th Cir. 2014); see also Hubbell v. FedEx SmartPost, Inc.,
933 F.3d 558, 570 (6th Cir. 2019) (finding close surveillance, monitoring, and repeated write-ups
to be materially adverse actions). And more importantly, if two written reprimands in Taylor v.
Geithner, 703 F.3d 328, 338 (6th Cir. 2013), were not enough, neither are the two upbraidings
alleged here.
LoMonaco’s response, “Well . . .,” after Burton communicated her husband’s worry that
she would become a target does not alter this conclusion. That ambiguous, veiled intimation does
not amount to a genuine threat that typically supports materiality. Cf. Monaghan v. Worldpay US,
Inc., 955 F.3d 855, 862–63 (11th Cir. 2020) (upholding materiality when the supervisor told an
employee that she had “cut her own throat,” “would be blackballed,” and her days were numbered);
Queen v. City of Bowling Green, 956 F.3d 893, 904 (6th Cir. 2020) (upholding materiality when a
supervisor told an employee that he “should get employment elsewhere”).
Nor does context help Burton. Although some context bears on the significance of
defendants’ conduct—Drake led Human Resources, her visit was allegedly unusual, and Burton
had previously raised racial concerns—those facts do not “nudge [Burton’s] claims . . . across the
line from conceivable to plausible.” Iqbal, 556 U.S. at 680 (citation modified). No one, for
example, told Burton that another discrimination complaint would jeopardize her position or
professional standing, nor do the allegations permit us to infer as much. To the contrary, her
allegations show that Drake had been receptive to her prior complaints of racism at Centre.
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In the end, Burton’s factual allegations do not permit us to draw a “reasonable inference
that the defendant is liable for the misconduct alleged.” Ctr. for Bio-Ethical Reform, Inc. v.
Napolitano, 648 F.3d 365, 369 (6th Cir. 2011) (citation modified). She has therefore failed to state
a retaliation claim.
B.
Burton separately pleads a constructive-discharge claim.1 Constructive discharge requires
working conditions “so intolerable that a reasonable person in the employee’s position would have
felt compelled to resign.” Green v. Brennan, 578 U.S. 547, 555 (2016) (quoting Pennsylvania
State Police v. Suders, 542 U.S. 129, 141 (2004)). “[I]ntolerability is a demanding standard.”
Tchankpa v. Ascena Retail Grp., Inc., 951 F.3d 805, 814 (6th Cir. 2020). It turns on factors such
as demotion, reduced pay or responsibilities, reassignment to degrading work, and “badgering,
harassment, or humiliation.” Logan v. Denny’s Inc., 259 F.3d 558, 569 (6th Cir. 2001) (citation
modified).
The conditions Burton alleges were not objectively intolerable. Her theory again rests on
the limited exchanges with Drake and LoMonaco. But these exchanges—“limited to a few isolated
incidents”—do not amount to constructive discharge. Groening v. Glen Lake Cmty. Schs.,
884 F.3d 626, 630–31 (6th Cir. 2018). The circumstances fall well short of making a workplace
objectively intolerable. Cf. McKelvey v. Sec’y of U.S. Army, 450 F. App’x 532, 533, 535 (6th Cir.
2011) (holding a constructive discharge occurred when a disabled veteran was subjected for nine
months to repeated harassment, including being called “all fucked up,” “worthless,” and “a fucking
1
We assume, without deciding, that constructive discharge is an independent cause of
action. See Leath v. Collins, 2026 WL 228827, at *7–8 (6th Cir. Jan. 28, 2026) (declining to decide
the question while noting another unpublished case “implicitly authorized a constructive discharge
cause of action”).
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cripple”); Moore v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073, 1080–81 (6th Cir. 1999)
(holding a constructive discharge occurred where the employee endured “[d]ay after day, week
after week of isolation”).
Burton’s concern for the status of her professional licensure if she continued on at Centre
does not amount to a constructive discharge either. She relies on Smith v. LHC Grp., Inc.,
727 F. App’x 100 (6th Cir. 2018), to support this proposition. But there, the plaintiff was forced
to “choose between resignation and turning a blind eye” to fraud that endangered her license and
exposed her to prosecution. Smith, 727 F. App’x at 103–06. Burton does not allege that Centre
required her to perform work that jeopardized her license, only that she subjectively feared that
defendants might take action that would.
Instead, Burton’s allegations show that she believed she “would suffer further retaliation
by Drake” or be “fired for pretextual reasons as other black employees had been,” and therefore
“decided that the only way she could protect herself professionally was to resign” a mere day after
talking with Drake and LoMonaco. But our precedent bars a constructive discharge claim when
the “employee . . . quits . . . in apprehension that conditions may deteriorate later.” Agnew v. BASF
Corp., 286 F.3d 307, 310 (6th Cir. 2002). Put simply, an “employee is obliged not to assume the
worst, and not to jump to conclusions too fast.” Id. (citation modified).
And although a resignation is a constructive discharge when the employer “communicated
to a reasonable employee that she will be terminated,” such that “the handwriting was on the wall,”
Laster, 746 F.3d at 728 (citation modified), that did not happen here. No Centre official told
Burton, or suggested, that she would be fired or disciplined. Cf. Savel v. MetroHealth Sys.,
96 F.4th 932, 940–41, 943–44 (6th Cir. 2024) (holding a constructive discharge occurred when the
defendant denied religious exemptions from vaccination, informed the plaintiffs they could not
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appeal, and explained they would be fired if they remained unvaccinated). The only handwriting
came from Burton’s husband, and LoMonaco declining to reassure Burton that she would not be
targeted is not the same as communicating that the “axe was about to fall.” Laster, 746 F.3d at
728–29 (citation modified) (rejecting constructive discharge where “there is nothing in the record
to indicate that [the employer] actually communicated” an assumed termination to the plaintiff);
Funk v. City of Lansing, 821 F. App’x 574, 580–81 (6th Cir. 2020) (rejecting a constructive
discharge claim partially premised on a third party’s comments that led the employee to believe
he would be fired if he did not resign).
Thus, Burton has not alleged a plausible constructive discharge claim.
III.
For these reasons, we affirm the judgment of the district court.
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