Where is the line drawn between protected conduct and fireable insubordination? In Stewart v. GES Recycling South Carolina, LLC, No. 24-1523 (4th Cir. Aug. 13, 2026), the Fourth Circuit tackled this exact issue when an employee used explicit language while simultaneously raising a discrimination complaint.
So What Happened?
In Stewart, the plaintiff, an African American driver and employee at a recycling plant, alleged that he was subjected to repeated and severe conduct at work. The plaintiff claimed that, during his employment, he was subjected to racial slurs and harassing behavior from other employees. Circumstances escalated when the plant manager allegedly engaged in racially offensive behavior and gestures toward the plaintiff. When confronted, the exchange became heated, resulting in the plaintiff using explicit profanity while simultaneously raising complaints of racial discrimination and a lack of advancement opportunities.
The plaintiff was suspended that same day and subsequently terminated just days later, after memorializing his complaints in a written statement detailing the discriminatory conduct he claimed to have experienced. The plaintiff testified that he was told by the employer that he was terminated because of “the way [he] talked” to the plant manager. During the litigation, however, the employer explained that the termination was the direct result of belligerent and insubordinate conduct that it characterized as threatening and intimidating in nature. The defendant moved for summary judgment to dismiss all three of plaintiff’s § 1981 claims for a hostile work environment, race discrimination, and retaliatory discharge.
So, was the U.S. District Court convinced by the employer’s argument on summary judgment? The answer is yes. The U.S. District Court for the District of South Carolina granted summary judgment to the employer, holding that no reasonable jury could find that retaliation was the but-for cause of the termination given the plaintiff’s inappropriate outburst toward his manager.
The Fourth Circuit’s Ruling: Loud Outburst or Evolving Excuse?
The Fourth Circuit disagreed, vacated the District Court’s summary judgment ruling, and remanded the case.
Under the McDonnell Douglas burden-shifting framework, the Court found that two factual issues central to the case required a jury’s determination. While the employer characterized the incident as involving physical intimidation and threatening behavior, the plaintiff described it as a purely verbal dispute. Evidence that profane language was widespread and tolerated in this particular workplace called into question whether the plaintiff’s conduct was sufficiently serious enough to warrant termination, presenting a triable issue of fact regarding workplace culture. The employer’s explanation for the termination also created a separate factual problem. According to the plaintiff, the reason communicated to him at the time of his termination centered on the manner in which he spoke to his supervisor. However, the employer described the conduct in broader terms, including as threatening and intimidating. The majority concluded that a jury was entitled to consider that distinction in evaluating whether the employer’s stated reason for termination was genuine or whether retaliation played a role in the decision.
Importantly, the majority did not decide whether retaliation actually occurred, but rather concluded that the evidence presented factual questions that should be resolved by a jury. Dissenting, Judge Quattlebaum took a different view, emphasizing that the focus should remain on whether the employer honestly believed that the conduct in question was insubordinate, rather than whether it met some specific threshold of physical intimidation. Under that view, profanity directed at a supervisor and conduct causing a workplace disruption such as this could be considered inherently insubordinate as a matter of law
The Practical Punchline for Defense Counsel
The takeaway for employers is not that insubordination must be tolerated. Rather, it’s the consistency that matters. Conduct that might ordinarily support discipline becomes more complicated when it occurs during the same conversation in which an employee raises a discrimination complaint, particularly where similar conduct has historically gone undisciplined in the workplace.
From a litigation standpoint, Stewart offers a stark lesson in record preservation and appellate practice. On appeal, the plaintiff attempted to assert a "cat’s paw" theory to impute the supervisor’s retaliatory animus to the ultimate decisionmaker. Because the plaintiff failed to properly raise and develop this argument before the district court, the Fourth Circuit refused to consider it, illustrating that plaintiffs' counsel must explicitly plead and brief every potential imputation theory during initial summary judgment filings.
For defense attorneys, the ruling demonstrates the evidentiary hurdles inherent in the McDonnell Douglas framework when workplace culture contradicts written policy. Establishing a legitimate, non-retaliatory justification on paper is rarely enough if custom and practice suggest otherwise. When opposing summary judgment, plaintiffs do not need to disprove that the misconduct occurred; showing inconsistent enforcement across the broader workforce is sufficient to create a genuine dispute of material fact for the jury. Furthermore, the more a defendant's stated justification evolves between initial termination and litigation briefing, the easier it becomes for plaintiff's counsel to argue that the later explanation is a pretextual effort to strengthen a questionable decision.
Finally, when counseling clients during pre-litigation, counsel should advise uncoupling the misconduct review from the discrimination grievance. Allowing a misconduct investigation to eclipse an underlying complaint provides a plaintiff with strong ammunition to argue that the employer's response was retaliatory on its face. Ultimately, Stewart serves as a reminder that when alleged misconduct and protected activity occur simultaneously, contemporaneous documentation, consistency, and a complete investigation determine whether an employer can resolve a case as a matter of law or whether a jury gets to decide why the employee was really terminated.