Mark Pannek v. U.S. Bank Nat'l Ass'n

RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 26a0224p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ┐ MARK PANNEK; THOMAS STROTMAN, │ Plaintiffs-Appellants, │ > No. 25-3706 │ v. │ │ U.S. BANK NATIONAL ASSOCIATION, │ Defendant-Appellee. │ ┘ Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 1:19-cv-00852—Jeffery P. Hopkins, District Judge. Argued: June 3, 2026 Decided and Filed: August 7, 2026 Before: BATCHELDER, GRIFFIN, and MATHIS, Circuit Judges. _________________ COUNSEL ARGUED: Joshua M. Smith, SSP LAW CO., L.P.A., Cincinnati, Ohio, for Appellants. Patricia Anderson Pryor, JACKSON LEWIS P.C., Cincinnati, Ohio, for Appellee. ON BRIEF: Joshua M. Smith, Peter A. Saba, Bailey E. Sharpe, SSP LAW CO., L.P.A., Cincinnati, Ohio, for Appellants. Patricia Anderson Pryor, Patricia K. Gavigan, JACKSON LEWIS P.C., Cincinnati, Ohio, for Appellee. MATHIS, J., delivered the opinion of the court in which GRIFFIN, J., concurred, and BATCHELDER, J., concurred except as to section III.A. BATCHELDER, J. (pp. 19–26), delivered a separate opinion concurring in part and dissenting in part.  No. 25-3706 Pannek, et al. v. U.S. Bank Nat’l Ass’n Page 2 _________________ OPINION _________________ MATHIS, Circuit Judge. This case involves several claims brought by Mark Pannek and Thomas Strotman against their former employer, U.S. Bank National Association. They allege that U.S. Bank violated Title VII of the Civil Rights Act of 1964 by retaliating against them after Pannek filed an ethics complaint against their former supervisor. They also assert that U.S. Bank violated Title VII by subjecting them to a hostile work environment through sexual harassment. Pannek further contends that U.S. Bank violated the Age Discrimination in Employment Act (ADEA) by replacing him with a younger colleague. The district court granted summary judgment to U.S. Bank on all claims. For the reasons discussed below, we affirm in part and reverse in part. I. In January 2017, U.S. Bank hired Thomas Strotman as its vice president of governance control for the Consumer Banking Default Management Group. In that role, he oversaw U.S. Bank’s risk control programs. Six months later, Strotman recruited a former colleague, Mark Pannek, to serve as U.S. Bank’s vice president of third-party risk for consumer lending services. Pannek reported to Strotman, and his responsibilities included verifying that U.S. Bank’s vendors and other business partners had controls in place to protect the bank from risks associated with regulatory compliance, data security, and other potential liabilities. In fall 2017, U.S. Bank reorganized its consumer lending division, which included Pannek and Strotman. Because of this reorganization, Pannek and Strotman began reporting to John Gemrich, U.S. Bank’s senior vice president of quality control. According to Pannek and Strotman, Gemrich shared with them explicit details about his sex life while he was their supervisor. During a team meeting in February 2018, Gemrich disagreed with Pannek about how much a third-party audit would cost the company. Gemrich suggested they place bets on which estimate would be correct, telling Pannek, “Put some money on it. Put your money where your  No. 25-3706 Pannek, et al. v. U.S. Bank Nat’l Ass’n Page 3 mouth is.” R. 35, PageID 537. When Pannek resisted, Gemrich allegedly belittled him and started clucking like a chicken. Pannek says he became worried about the potential repercussions if he did not agree to the bet. So Pannek agreed and, in the end, Gemrich was correct about the cost estimate. Pannek gave Gemrich a $150 gift card to resolve their wager. Around the same time, U.S. Bank underwent a second reorganization. U.S. Bank merged its lending and mortgage divisions to form the CBSS Servicing Group. As a result, Pannek, Strotman, and Gemrich began reporting to Bryan Bolton, U.S. Bank’s senior vice president and chief administrative officer. During this reorganization, Bolton contemplated transferring several of Pannek’s direct reports to Alyson Roberts, another employee in the CBSS Servicing Group. He also began conducting a “synergy exercise,” which largely consisted of meetings with his direct reports to discuss their teams and workflow. R. 39, PageID 1479. The goal of the exercise, according to Bolton, was to identify best practices and ensure that teams with related responsibilities approached their work in a similar fashion. He also believed that this was a chance to observe how his direct reports worked together. The last of these group meetings occurred in April 2018. The parties dispute whether the synergy exercise could result in terminations. U.S. Bank contends that Bolton evaluated the CBSS Servicing Group for duplication of functions to consolidate them so that the group could operate more efficiently. Whereas Pannek and Strotman assert that no discussions occurred about employees being recommended for termination or positions being eliminated because of the synergy exercise. Meanwhile, in March 2018, U.S. Bank held an employee training about appropriate workplace conduct. U.S. Bank requires its employees “to maintain a work atmosphere free of discrimination, harassment, intimidation and unwelcome, offensive or inappropriate conduct.” R. 40-1, PageID 1919. Its workplace respect policy prohibits employees from engaging in sexual harassment and, more broadly, any conduct that “denigrates or shows hostility or aversion” to others because of race, gender, or age, among other traits. Id. Employees can report inappropriate conduct in various ways, including by contacting U.S. Bank’s ethics hotline. After U.S. Bank receives a complaint, it will investigate the allegations and take disciplinary action as  No. 25-3706 Pannek, et al. v. U.S. Bank Nat’l Ass’n Page 4 appropriate. And, according to its policy, U.S. Bank does not tolerate retaliation against any employee who reports harassment in good faith. On March 27, after attending the workplace training, Pannek reported Gemrich for his behavior by calling the ethics hotline and submitting a complaint. Pannek’s complaint focused on the betting incident. He also claimed that Gemrich’s inappropriate behavior “created a hostile work environment.” R. 39-1, PageID 1706. Two days later, HR business partner Diane Watson contacted Bolton to discuss Pannek’s complaint. And a few days after their discussion, Bolton emailed Watson about “HR Related Concerns.” R. 49-1, PageID 2438. In the email, Bolton discussed Pannek and Strotman. He described them as “very close” and “worried about their jobs in this new organization.” Id. He also mentioned that they had been reluctant to share information with him about their operations. For these reasons, Bolton “question[ed] the timing” of the ethics complaint. Id. He believed Pannek filed it out of concern about his future at U.S. Bank. And Bolton said he “wouldn’t be surprised to see [Strotman] take a similar tac[k].” Id. Finally, Bolton signaled that he would be firing Pannek and Strotman soon and that the “leadership concerns [he] ha[d] with both of them [were] valid and mutually exclusive of any complaints filed or potentially filed.” Id. After sharing his plans to fire Pannek and Strotman, Bolton conducted a peer group analysis (PGA). According to U.S. Bank’s policy, a PGA “must be completed where there are two or more employees in the position being considered for elimination, but not all employees in the job will be severed.” Id. at 2441. Typically, a PGA is completed at the start of the reduction- in-force process and before a termination decision has been made. U.S. Bank requires that the PGA be completed so “that employees are evaluated and ranked consistently against criteria that take into account relevant skills, knowledge and experience.” Id. In the meantime, U.S. Bank assigned HR business partner Laurie Grey to investigate Pannek’s ethics complaint. During the investigation, Grey interviewed Pannek, Strotman, Gemrich, and several other employees. And in the end, her investigation substantiated Pannek’s allegations, and she concluded that Gemrich violated U.S. Bank’s workplace respect policy.  No. 25-3706 Pannek, et al. v. U.S. Bank Nat’l Ass’n Page 5 After receiving Grey’s report, U.S. Bank issued a written warning to Gemrich. It reprimanded him for demonstrating “poor judg[]ment” by “making a bet and accepting the financial reward” and “discussing his personal life with staff in a manner that made them feel uncomfortable,” including “explicit details on his dating life.” R. 39-1, PageID 1709 (citation modified). And about a year later, U.S. Bank fired Gemrich after an internal investigation revealed that, among other things, he failed to execute a PGA in accordance with U.S. Bank’s policy. On May 15, 2018, U.S. Bank terminated Pannek’s and Strotman’s employment. Bolton transferred the bulk of Pannek’s duties to Roberts and distributed his other responsibilities to employees outside the CBSS Servicing Group. Pannek and Strotman then sued U.S. Bank, alleging retaliation and hostile-work- environment claims under Title VII and Ohio law, and age discrimination under ADEA and Ohio law. The district court granted summary judgment to U.S. Bank on all claims. Pannek and Strotman appeal the dismissal of their Title VII retaliation and hostile-work-environment claims, and Pannek appeals the dismissal of his ADEA claim.1 II. We review a grant of summary judgment de novo. Boyd v. N. Biomedical Rsch., Inc., 165 F.4th 424, 431 (6th Cir. 2026). Summary judgment is proper where “the movant shows 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(a). We view the evidence and draw reasonable inferences in the light most favorable to the nonmoving party. Halasz v. Cass City Pub. Schs., 162 F.4th 724, 732 (6th Cir. 2025). 1Pannek and Strotman do not challenge the district court’s dismissal of their employment claims under Ohio law. Nor does Strotman appeal the court’s dismissal of his ADEA claim.  No. 25-3706 Pannek, et al. v. U.S. Bank Nat’l Ass’n Page 6 III. We begin with the Title VII claims.2 First, Pannek and Strotman contend that U.S. Bank retaliated against them because Pannek filed an ethics complaint against Gemrich. And second, they argue that U.S. Bank subjected them to a hostile work environment through sexual harassment. As for their retaliation claims, a factual dispute exists that a jury must resolve. But their hostile-work-environment claims fail because U.S. Bank is entitled to the Faragher/Ellerth affirmative defense to vicarious liability. A. Title VII Retaliation Claims. Title VII prohibits an employer from “discriminat[ing] against any of [its] employees . . . because he has opposed any practice made an unlawful employment practice by [Title VII], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII].” 42 U.S.C. § 2000e-3(a). Unlawful employment practices include sexual harassment. Id. § 2000e-2; Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79–80 (1998). An employee can establish a retaliation claim using direct or circumstantial evidence. Yazdian v. ConMed Endoscopic Techs., Inc., 793 F.3d 634, 644–45 (6th Cir. 2015). Here, Pannek and Strotman rely on circumstantial evidence. So we evaluate their retaliation claims under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Hamm v. Pullman SST, Inc., 167 F.4th 382, 393 (6th Cir. 2026). Under the McDonnell Douglas framework, Pannek and Strotman must first establish a prima facie case for retaliation. Id. To do so, they must show: “(1) [they] engaged in protected activity, (2) the employer knew of the exercise of the protected right, (3) an adverse employment action was subsequently taken against the[m], and (4) there was a causal connection between the protected activity and the adverse employment action.” Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 720 (6th Cir. 2008). 2Pannek’s and Strotman’s retaliation and hostile-work-environment claims are based on the same core set of facts. We thus consider them together.  No. 25-3706 Pannek, et al. v. U.S. Bank Nat’l Ass’n Page 7 If successful, the burden of production shifts to U.S. Bank. It must articulate “a legitimate, nondiscriminatory reason” for firing Pannek and Strotman. Id. If U.S. Bank satisfies its burden, then Pannek and Strotman must show that U.S. Bank’s proffered reason was “only a pretext designed to mask retaliation.” Id. “Although the burden of production shifts between the parties, the plaintiff bears the burden of persuasion through the process.” Laster v. City of Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014) (quotation omitted). U.S. Bank challenges only the causation element of the prima facie case. To prove a causal link, Pannek and Strotman must produce sufficient evidence from which one could infer that “the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013). At the prima facie stage, their burden of proof is “minimal”; all they “must do is put forth some credible evidence that enables the court to deduce that there is a causal connection between the protected activity and the retaliatory action.” Upshaw v. Ford Motor Co., 576 F.3d 576, 588 (6th Cir. 2009) (quotation omitted). U.S. Bank argues that Pannek and Strotman cannot establish a causal connection because Bolton decided to fire them weeks before Pannek filed the ethics complaint on March 27, 2018. And it contends that no evidence shows that Bolton made his decision to fire Strotman after he participated in the ethics investigation on April 19. Pannek and Strotman have met their “minimal” burden. See id. During his deposition, Bolton testified that he reached his “final determination” in April 2018 about whom he would terminate from the CBSS Servicing Group. R. 39, PageID 1501. In other words, Bolton did not make his final decision until after Pannek filed the ethics complaint against Gemrich. As for Strotman, Bolton asked Gemrich on April 20 for feedback about Strotman because Bolton was contemplating keeping him on in the interim. So contrary to U.S. Bank’s assertion, evidence exists in the record that Bolton may have decided to fire Strotman after he participated in the ethics investigation. The close temporal proximity between Bolton learning of the protected activity and his decision to terminate Pannek and Strotman could suffice to show causation. See Milczak v. Gen. Motors, LLC, 102 F.4th 772, 789 (6th Cir. 2024). But there is more. Bolton did not terminate Pannek and Strotman based on work performance. Instead, he purportedly terminated them as  No. 25-3706 Pannek, et al. v. U.S. Bank Nat’l Ass’n Page 8 part of a reorganization. But, as we discuss below, Bolton’s supervisor did not expect Bolton to terminate employees as part of the reorganization. This supports the inference that Bolton terminated Pannek and Strotman because of the ethics complaint. When viewing this evidence in the light most favorable to Pannek and Strotman, a genuine dispute of material fact exists as to whether U.S. Bank fired them in retaliation for the ethics complaint. Pannek and Strotman have thus established a prima facie case for retaliation. The dissent argues that Pannek’s and Strotman’s retaliation claims fail at the prima facie stage because they did not engage in a protected activity and, even if they did, U.S. Bank was unaware of that activity. But U.S. Bank did not make these arguments before the district court or in their briefing on appeal. So U.S. Bank has forfeited these arguments. We generally do not address arguments that a party chooses not to raise before the district court or in its appellate briefing. See Rockwood Auto Parts, Inc. v. Monroe County, 155 F.4th 557, 574 n.5 (6th Cir. 2025); Rybarczyk v. TRW, Inc., 235 F.3d 975, 984 (6th Cir. 2000). “Our forfeiture rule is justified by two main policy goals. First, the rule eases appellate review by having the district court first consider the issue. Second, the rule ensures fairness to litigants by preventing surprise issues from appearing on appeal.” Thomas M. Cooley L. Sch. v. Kurzon Strauss, LLP, 759 F.3d 522, 528 (6th Cir. 2014) (citation modified). But this rule is not jurisdictional, U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 445–48 (1993), and we may “exercise our discretion to entertain issues not raised before the district court only in exceptional cases or when application of the rule would produce a plain miscarriage of justice,” Ohio State Univ. v. Redbubble, Inc., 989 F.3d 435, 445 (6th Cir. 2021) (citation modified).3 3The dissent suggests that Pannek and Strotman have forfeited U.S. Bank’s forfeiture. But U.S. Bank did not argue in its briefing to this court that Pannek and Strotman could not satisfy the protected-activity element of their prima facie case. “Our forfeiture rules exist in part because we find it inappropriate to consider arguments raised by one party when the other party has not had the opportunity to respond to that argument.” L.C. v. United States, 83 F.4th 534, 545–46 (6th Cir. 2023) (citation modified). Thus, “[a] party that sees a forfeited argument must preemptively raise forfeiture.” Id. at 545. Before this court, U.S. Bank challenged only the causation element: “Pannek and Strotman’s prima facie case fails as a matter of law because they cannot prove a causal connection between their alleged protected activity – Pannek’s March 27, 2018 complaint about Gemrich and Strotman’s participation in the investigation on April 19, 2018 – and their terminations.” D. 27 at pp.29–30. So Pannek and Strotman had no reason to raise a forfeiture argument about the protected-activity element.  No. 25-3706 Pannek, et al. v. U.S. Bank Nat’l Ass’n Page 9 No such exceptional circumstances exist here. Cf. United States v. Chesney, 86 F.3d 564, 568 (6th Cir. 1996) (finding that exceptional circumstances existed to review an issue not raised below because a Supreme Court case that squarely addressed the issue was decided after the district court entered judgment in the case). And no miscarriage of justice will occur by us declining to make these arguments for U.S. Bank. Moreover, we “adhere to the principle of party presentation.” Margolin v. Nat’l Ass’n of Immigr. Judges, 146 S. Ct. 1285, 1288 (2026) (per curiam). Under that principle, the parties “frame the issues for decision” and we assume “the role of neutral arbiter of matters the parties present.” United States v. Sineneng-Smith, 590 U.S. 371, 375 (2020) (quotation omitted). The dissent runs afoul of the party-presentation principle by ruling on “points not argued.” United States v. Burke, 504 U.S. 229, 246 (1992) (Scalia, J., concurring in the judgment). Because Pannek and Strotman have made out a prima facie case, we move to the next steps of the McDonnell Douglas framework. U.S. Bank has identified a neutral reason for terminating Pannek’s and Strotman’s employment: a reduction in workforce. This is a legitimate, nonretaliatory reason for discharging an employee. See Pierson v. Quad/Graphics Printing Corp., 749 F.3d 530, 539 (6th Cir. 2014). So Pannek and Strotman bear the burden of showing that U.S. Bank’s reason is pretext for retaliation. 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. See Hamm, 167 F.4th at 393. 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.” Jackson v. Genesee Cnty. Rd. Comm’n, 999 F.3d 333, 350–51 (6th Cir. 2021) (citation modified). These are common ways to show pretext, but they “are not the only ways.” Miles v. S. Cent. Hum. Res. Agency, Inc., 946 F.3d 883, 888 (6th Cir. 2020). 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?” Id. (citation modified). 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  No. 25-3706 Pannek, et al. v. U.S. Bank Nat’l Ass’n Page 10 offered reason was pretextual.” George v. Youngstown State Univ., 966 F.3d 446, 462 (6th Cir. 2020). 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.” Kirilenko-Ison v. Bd. of Educ. of Danville Indep. Schs., 974 F.3d 652, 667 (6th Cir. 2020). 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. R. 49-1, PageID 2438. Bolton also said he “wouldn’t be surprised to see [Strotman] take a similar tac[k]” and file his own ethics complaint. Id. 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.” Goldblum v. Univ. of Cincinnati, 62 F.4th 244, 256 (6th Cir. 2023) (citation modified). 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. R. 48, PageID 2170. 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  No. 25-3706 Pannek, et al. v. U.S. Bank Nat’l Ass’n Page 11 terminations, Bolton had open positions on his team for “risk and controls” and “risk strategy.” R. 39, PageID 1673. 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.” R. 49-1, PageID 2441. 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. R. 49, PageID 2333. 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. R. 49-1, PageID 2440. 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. White v. Columbus Metro. Hous. Auth., 429 F.3d 232, 246 (6th Cir. 2005). 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.” Kean v. Brinker Int’l, Inc., 140 F.4th 759, 776 (6th Cir. 2025). 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.  No. 25-3706 Pannek, et al. v. U.S. Bank Nat’l Ass’n Page 12 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 (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.” D. 27 at p.40. 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. R. 49, PageID 2338. 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. In the end, a jury should decide whether U.S. Bank retaliated against Pannek and Strotman. Of course, a reasonable jury could find no connection between the sexual-harassment complaint and Pannek’s and Strotman’s terminations. But a jury could also find Pannek’s and Strotman’s evidence compelling and conclude that a reduction in workforce did not actually motivate Bolton’s actions. When the parties present “two reasonable interpretations of the evidence,” we must allow the jury to answer the ultimate question of whether the employer terminated the employee in retaliation “for opposing an unlawful employment practice.” Jackson, 999 F.3d at 351 (quotation omitted). B. Title VII Hostile-Work-Environment Claims. Title VII makes it illegal for employers to “discriminate against any individual with respect to his compensation, terms, conditions, or  No. 25-3706 Pannek, et al. v. U.S. Bank Nat’l Ass’n Page 13 privileges of employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). This prohibition includes actions that create a sex-based hostile work environment. See Vance v. Ball State Univ., 570 U.S. 421, 427 (2013); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64– 67 (1986). It also covers hostile-work-environment claims based on same-sex harassment. Oncale, 523 U.S. at 82. To establish this type of claim, employees must prove: (1) they were members of a protected class; (2) they were subjected to unwelcome sexual harassment; (3) the harassment was based on sex; (4) the harassment unreasonably interfered with their work performance by creating a hostile, offensive, or intimidating work environment; and (5) that there is a basis for employer liability. Thornton v. Fed. Express Corp., 530 F.3d 451, 455 (6th Cir. 2008). We can resolve the hostile-work-environment claims on the employer-liability element. Pannek and Strotman claim that their then-supervisor, Gemrich, sexually harassed them by making frequent inappropriate comments about women. “An employer is vicariously liable when a supervisor takes a tangible employment action.” Vance, 570 U.S. at 429 (citation modified). A tangible employment action includes “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Id. (quotation omitted). If the “supervisor’s harassment does not culminate in a tangible employment action, the employer can be vicariously liable for the supervisor’s creation of a hostile work environment if the employer is unable to establish an affirmative defense.” Id. Pannek and Strotman cannot show that Gemrich took a tangible employment action against them. Gemrich was not involved in the decision to terminate Pannek’s and Strotman’s employment. Bolton made that decision. And while Bolton solicited feedback from Gemrich about Pannek’s and Strotman’s performance, this is not a case of delegated decisionmaking. See Wyatt v. Nissan N. Am., Inc., 999 F.3d 400, 413 (6th Cir. 2021). So their discharge was not part of Gemrich’s harassment. See Williams v. Memphis Light, Gas & Water, No. 23-5616, 2024 WL 3427171, at *7 n.3 (6th Cir. July 16, 2024).  No. 25-3706 Pannek, et al. v. U.S. Bank Nat’l Ass’n Page 14 Thus, we must consider whether U.S. Bank can establish an affirmative defense to liability. An employer may assert an affirmative defense to supervisor liability under the Faragher/Ellerth framework. See Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998). To succeed with this defense, U.S. Bank must show by a preponderance of the evidence that: (1) it “exercised reasonable care to prevent and correct any harassing behavior,” and (2) Pannek and Strotman “unreasonably failed to take advantage of the preventive or corrective opportunities” that U.S. Bank provided. Wyatt, 999 F.3d at 414 (quoting Vance, 570 U.S. at 424). This defense does not apply if U.S. Bank loses on either prong. Id. Start with the first prong. We consider whether U.S. Bank “had a reasonable sexual harassment policy and whether such policy was effective in practice.” Id. (citation modified). And although no precise “formula” tells us what qualifies as a “reasonable” sexual-harassment policy, several factors assist us in our inquiry. Clark v. United Parcel Serv., Inc., 400 F.3d 341, 349 (6th Cir. 2005). A reasonable policy requires supervisors to report any instances of sexual harassment, allows employees to file formal and informal complaints, and includes a mechanism for employees to circumvent a harassing supervisor when filing a complaint. Id. An employer should also provide training about its harassment policy. Id. at 349–50. While an employer must have a sexual-harassment policy in place, the duty does not end there. The “existence and provision of a harassment policy alone are insufficient to show reasonable care to prevent and correct promptly any . . . harassing behavior.” Smith v. P.A.M. Transp., Inc., 154 F.4th 375, 394 (6th Cir. 2025) (citation modified). We need to “look[] behind the face of a policy to determine whether the policy was effective in practice in reasonably preventing and correcting any harassing behavior.” Clark, 400 F.3d at 349. An employer can meet this requirement if it has a “proven, effective mechanism for reporting and resolving” incidents of harassment. Faragher, 524 U.S. at 806. So we must review not only U.S. Bank’s sexual-harassment policy but also its implementation of that policy. U.S. Bank has a reasonable sexual-harassment policy. Its workplace respect policy prohibits sexual harassment and other inappropriate conduct. The policy defines sexual harassment and provides examples of such behavior, emphasizing that “it isn’t about intent—it’s  No. 25-3706 Pannek, et al. v. U.S. Bank Nat’l Ass’n Page 15 about the effect harassment has on others.” R. 49-1, PageID 2431. The policy also requires managers and supervisors to report any issues, including harassment. And it provides employees with several reporting options. An employee can make a verbal or written report to his manager, supervisor, or HR. He can also call U.S. Bank’s ethics line or submit a complaint online. Once an employee files a complaint, U.S. Bank will investigate and will act if it finds that a policy violation occurred. The policy also requires new employees to complete a workplace- harassment training, and managers must complete a specialized training. Employees must also participate in periodic refresher training. Still, Pannek and Strotman argue that U.S. Bank’s policy is ineffective because the investigation into Gemrich’s conduct was “inadequate.” D. 28 at p.33. The record does not support this contention. Pannek filed his complaint on March 27, 2018, and Grey’s investigation was well underway a few weeks later. During her investigation, Grey interviewed Pannek, Strotman, Gemrich, and several other employees. And while interviewing Pannek and Strotman, Grey learned that Gemrich had been making comments about his sex life during team meetings. In the end, Grey substantiated Pannek’s allegations, finding that Gemrich violated U.S. Bank’s workplace respect policy. After receiving Grey’s report, U.S. Bank issued a written warning to Gemrich. It reprimanded him for, among other things, “discussing his personal life with staff in a manner that made them feel uncomfortable” and sharing “explicit details on his dating life.” R. 39-1, PageID 1709 (citation modified). As a result of the warning, Gemrich faced several financial consequences. He became ineligible for any promotions or pay increases for 90 days. And U.S. Bank could reduce or withhold his annual bonus at its discretion. Eventually, if Gemrich failed to correct his behavior, U.S. Bank would terminate his employment. And Bolton, Gemrich’s supervisor, testified that after Gemrich received this warning, he did not make any more inappropriate sexual comments. Based on these facts, U.S. Bank “exercised reasonable care to prevent and correct promptly any [sexually] harassing behavior by its supervisor.” See Smith, 154 F.4th at 394 (citation modified). As for the second prong, we must determine whether Pannek and Strotman unreasonably failed to take advantage of any preventative or corrective measures U.S. Bank provided. See  No. 25-3706 Pannek, et al. v. U.S. Bank Nat’l Ass’n Page 16 Wyatt, 999 F.3d at 414. In evaluating an employee’s conduct, “we look at how and when [he] uses the company’s existing corrective and protective measures.” Id. at 415–16. In some situations, an employee unreasonably fails to take advantage of corrective opportunities when he waits months to report harassing behavior. Thornton, 530 F.3d at 457–58 (concluding that an employee failed to take advantage of any corrective measures because, in part, she did not report the harassment until two months after she began a leave of absence). But see Wyatt, 999 F.3d at 416 (finding that a factual dispute existed over whether an employee unreasonably failed to take advantage of corrective measures despite her two-month delay in reporting the harassment because she “was under a credible threat of retaliation” (quotation omitted)). Pannek testified that Gemrich started making inappropriate sexual comments soon after he and Strotman began reporting to him, sometime in November 2017. But Pannek waited until March 2018, about four months later, to alert U.S. Bank to Gemrich’s behavior. And Pannek’s ethics complaint focused on the betting incident. Pannek only cursorily asserted that Gemrich “created a hostile work environment,” without adding any information about Gemrich’s sexual comments. R. 49-1, PageID 2435. Later, during the investigation, Pannek told Grey that Gemrich made sexual comments during team meetings. But when Grey asked him about the specific comments, Pannek broadly referenced the “Access Hollywood tapes” and said that Gemrich used the “p-word . . . a few times.” R. 40, PageID 1833. Pannek’s roughly four-month delay in filing a complaint, coupled with his vague allegations about Gemrich’s sexual comments, show that he failed to take advantage of U.S. Bank’s corrective measures. See EEOC v. AutoZone, Inc., 692 F. App’x 280, 286 (6th Cir. 2017) (per curiam). Likewise, Strotman never took advantage of U.S. Bank’s corrective opportunities. He never reported Gemrich’s behavior. And d