Littler Lightbulb – March 2025 Employment Appellate Roundup

Fourth Circuit Stays Injunction Barring Enforcement of DEI Executive Orders

On March 14, 2025, the Fourth Circuit issued an order in National Association of Diversity Officers in Higher Education v. Donald Trump, No. 25-1189 (4th Cir. Mar. 14, 2025), staying the district court’s preliminary injunction barring enforcement of several provisions of the executive orders to end diversity, equity, and inclusion (DEI) programs in federal grant and contract processes. Although the order was short, all three judges on the panel issued separate opinions supporting their finding that the government met its burden to justify a stay of the district court’s injunction pending appeal. Stating that the executive orders “do not purport to establish the illegality of all efforts to advance diversity, equity or inclusion, and they should not be so understood,” Judge Harris also emphasized that “[w]hat the Orders say on their face and how they are enforced are two different things. Agency enforcement actions that go beyond the Orders’ narrow scope may well raise serious First Amendment and Due Process concerns, for the reasons cogently explained by the district court.” She added: “[M]y vote should not be understood as agreement with the Orders’ attack on efforts to promote diversity, equity, and inclusion. In my view, like Chief Judge Diaz’s, ‘people of good faith who work to promote diversity, equity, and inclusion deserve praise, not opprobrium.’” In contrast, Judge Rushing stated, “[a] judge’s opinion that DEI programs ‘deserve praise, not opprobrium’ should play absolutely no part in deciding this case.”

Based on the Fourth Circuit’s decision, the administration may enforce the DEI executive orders while the litigation plays out. 

Sixth Circuit Affirms Summary Judgment for Employer on Plaintiff’s Claim that Termination for Excessive Absenteeism Was Pretextual

Bashaw v. Majestic Care of Whitehall, LLC, __ F.4th __ (6th Cir. Mar. 5, 2025), involved a claim by an employee who worked at a nursing home for less than four months, was late eleven times and absent from work without authorization eight and a half days, which affected her work performance. Within a few months of her hiring the plaintiff raised concerns to Human Resources about patient care and complained of sexual harassment and racial insensitivity by the company’s executive director as well as a hostile work environment. In support of her allegations, the plaintiff said she made secret recordings of meetings. Human Resources investigated plaintiff’s allegations and her performance issues and concluded that her allegations against the executive director were unfounded. A week later the plaintiff was terminated for, among other things, excessive absenteeism and surreptitiously recording work conversations and meetings. She filed suit claiming retaliation under Title VII and state law. After the district court granted summary judgment for the employer, the plaintiff appealed, claiming the reasons for her termination were pretextual.

The plaintiff first argued that her termination for secret recordings of workplace meetings was pretextual because the company did not have a policy against surreptitiously recording meetings. The lack of a policy prohibiting certain conduct does not demonstrate the employer’s reason for termination was pretextual, the Sixth Circuit stated. In this case the court accepted the testimony of the company’s Human Resources vice president that the plaintiff’s secret recordings not only undermined the employer’s trust in her but also increased its risk of legal liability because confidential patient information was discussed during the meetings. Creating legal risk for the company was a valid reason for termination and was not pretextual, the court held. As to the plaintiff’s claim that her termination for absenteeism was pretextual, the plaintiff failed to provide sufficient evidence that other similarly situated employees were treated differently. Based on all these factors, the Sixth Circuit affirmed summary judgment for the employer.

Sixth Circuit Upholds Summary Judgment for Employer in ADA Accommodation Suit

The plaintiff in Smith v. Newport Utils., ____ F. 4th____ (6th Cir. Feb. 27, 2025), had worked for a utility company for decades as a bucket foreman, repairing downed powerlines during weather emergencies. After he began to suffer from seizures and had two on-the-job incidents within months of each other, the employer put him on FMLA leave, concerned that the employee’s seizures could cause a “catastrophic event” and even “get someone killed.”  After several months on leave, plaintiff’s physician reported he could return to work with restricted hours if the employer eliminated any “standby work.” Because the ability to work extended hours on short notice was essential to the plaintiff’s job, the company could not provide the requested accommodations. There were no other available positions for which the plaintiff was qualified, and the company notified the plaintiff that his employment would therefore be terminated, or he could choose to retire and keep certain employee benefits. The plaintiff chose to retire and filed suit in federal court for violation of the ADA.

The district court granted summary judgment for the company and the plaintiff appealed. Among other things, the plaintiff claimed the company did not satisfy its burden to show that he posed a direct threat of harm. Examining the medical evidence and the plaintiff’s on-the-job seizures, the Sixth Circuit concluded there was no doubt the plaintiff would pose a significant risk of harm if he continued as a bucket foreman. As to accommodations, based on the job description and the limited number employees in the plaintiff’s position, the company established that standby and overtime work were essential job functions that could not be eliminated as an accommodation, and all other available positions either required overtime and standby work or other skills that the plaintiff did not have. Lastly, although the company did not engage in the interactive process provided for by the ADA regulations, the Sixth Circuit concluded that the discussions would not have revealed a plausible reasonable accommodation that the employer could have made. Accordingly, the Sixth Circuit upheld summary judgment for the employer.

 Fourth Circuit Grants Summary Judgment to Employer in Termination of Employee Who Lied About Disability

Sigley v. ND Fairmont LLC, __ F.4th __ (4th Cir. Feb. 21, 2025), also involved an ADA claim. The plaintiff in that case was hired as a paper handler for a manufacturing company, which required employees to meet certain physical requirements such as “lifting, pushing, stooping, and standing for long periods of time.”  After being hired, the plaintiff completed a medical questionnaire and signed an informed consent stating: “giving false, incomplete, incorrect or misleading information will be cause for termination of my employment.” A month later, after returning to work following an absence, the plaintiff explained to his manager that his absence was due to back spasms he often experienced as a result of three recent back surgeries, which he had not disclosed in the medical questionnaire. The company terminated the plaintiff for misconduct in providing false, incorrect, and misleading information, despite having signed an acknowledgment that doing so was grounds for termination. Although he conceded that he lied about his back injury on the medical form, plaintiff filed suit claiming he was terminated because of his disability in violation of the ADA. After the district court granted summary judgment for the employer, the plaintiff appealed. 

On appeal the plaintiff argued that the eventual disclosure of his disability “prohibited his employer from taking adverse action against him.”  The Fourth Circuit disagreed. “[M]isconduct – even misconduct related to a disability – is not itself a disability, and an employer is free to fire an employee on that basis,” the court held. Affirming summary judgment, the court stated that the “plaintiff admits that he was dishonest, and dishonesty is misconduct worthy of termination, even if it is connected to a disability.”

 Seventh Circuit Affirms Summary Judgment in ADA Positive Drug Testing Case

Another ADA discrimination case, Hoffstead v. Ne. Ill. Reg'l Commuter R.R. Corp., __F.4th__ (7th Cir. Mar. 20, 2025), involved an employee who took prescription medication to treat attention deficit disorder, migraines, and a wrist injury. He tested positive for amphetamines, hydrocodone, and hydromorphone during a random drug test, and failed to respond to a medical review officer’s (MRO) attempts to reach him to ascertain the reasons for the positive drug test. When his superior officers reached him, he agreed to participate in a rehabilitation/education program and signed a waiver of his right to an investigation and hearing. Several days later, the employee provided the MRO and his employer with copies of the prescriptions for his medications, and the MRO revised the test results from positive to negative.

The employee filed suit claiming his employer discriminated against him in violation of the ADA by forcing him to complete a rehabilitation and education program, removing him from his position, and refusing to consider him for a similar open position. The district court granted summary judgment for the employer and the plaintiff appealed. Affirming summary judgment, the Seventh Circuit agreed with the district court that the plaintiff failed to demonstrate that his disability was the “but for” cause for the employer’s actions. Rather, the court found, it was the employee’s failure to respond to the MRO’s attempts to contact him that resulted in the report of a positive drug test and set off the chain of events about which the plaintiff complained, including the employee’s voluntary agreement to participate in the rehabilitation and education program.

Eighth Circuit Affirms Summary Judgment for Employer in Race and Gender Bias Suit

The plaintiff in Parker v. United States, __ F.4th __ (8th Cir. Feb. 28, 2025), an employee, asserted claims under Title VII for race and gender discrimination, retaliation, constructive discharge, and hostile work environment. The district court granted summary judgment to the employer on all the plaintiff’s claims. On appeal to the Eighth Circuit, the plaintiff claimed that her employer failed to train, transfer, or promote her because of her race (Black) and gender (female), but she failed to provide any evidence that she applied for or was denied a transfer, or who she claims was promoted instead of her. Although the plaintiff had “personality conflicts” with coworkers and supervisors, the court found, she was unable to demonstrate that her working conditions were so “severe or pervasive . . . to create an objectively hostile work environment,” or that any of the conduct about which she complained was based on her race or gender. Similarly, the plaintiff was unable to demonstrate that her working conditions were so intolerable that they caused her to resign. And finally, the court found, there was insufficient evidence that her employer retaliated against her for filing an EEOC complaint that was settled more than ten years earlier, due to, among other things, the lack of temporal proximity between the protected activity and any alleged adverse employment action. Accordingly, the Eighth Circuit held, the district court properly granted summary judgment for the employer.

In Another Eighth Circuit Case, the Court Upholds Summary Judgment for the Employer in Race, Disability, and Retaliation Suit

In another, similar Eighth Circuit case, Brown v. Conagra Brands, Inc., __ F.4th and __ (8th Cir. Mar. 12, 2025), the court affirmed dismissal of an employee’s race, disability, and retaliation claims after she was demoted and then terminated from employment. Agreeing with the district court, the Eighth Circuit found the plaintiff failed to allege facts to “plausibly support” her claims. As to her race discrimination claim, the plaintiff failed to identify the race of the individual who she claimed was treated differently. As to her disability discrimination claim, the court held that plaintiff’s conclusory statement that she is a “disabled individual with a record of disability” is not enough to state a disability discrimination claim without alleging “what her disability is, how she is impaired, what limitations she has, or what she was unable to do.” Finally, as to plaintiff’s retaliation claim, the court held that “temporal proximity alone does not support an inference of retaliation.” Because the plaintiff did not allege any additional facts to infer a causal connection between her complaints of discrimination and the adverse employment actions, her retaliation claim also failed.

 First Circuit Also Finds Temporal Proximity Alone Insufficient to Establish Retaliation

Quintana-Dieppa v. Dep't of the Army, __ F.4th __ (1st Cir. Feb. 25, 2025) involved claims of race, gender and age discrimination, and retaliation, by a Hispanic female employee who was involuntary reassigned to a non-supervisory position following two investigations finding her authoritative leadership style fostered a “toxic work environment.” The investigation included statements by 27 witnesses who said they had witnessed or been subjected to the plaintiff’s “disrespectful or disparaging” behavior. In support of her claims, the plaintiff attacked the validity of the investigative report, which she asserted was based on hearsay, and alleged that the reasons for her reassignment were pretextual. 

Rejecting the plaintiff’s arguments, the First Circuit stated that an employer may base its adverse actions on an investigative report because such reports are “not offered to prove that [the employee] engaged in misconduct, but rather to demonstrate that [her] superiors had reason, based on a thorough investigation, to believe that [s]he had.” In this case, the court concluded, there was no evidence that the reports were fabricated, nor did the plaintiff submit evidence contradicting the reports’ findings. The First Circuit also rejected plaintiff’s assertion that the lack of female, Hispanic employees over 40 in the decision-making process was evidence of discrimination. Absent other evidence, the court stated, this does not create an inference of discrimination.

The plaintiff’s allegations of retaliation were based on the fact that her reassignment occurred three to four months after her supervisors learned that she had filed an EEOC complaint. Rejecting this claim as well, the court stated that although close “temporal proximity may suffice for a prima facie case of retaliation,” it “does not satisfy [the plaintiff’s] ultimate burden to establish that the true explanation” for her reassignment “was retaliation for engaging in protected conduct rather than poor performance.”

For all these reasons, the First Circuit affirmed the district court’s grant of summary judgment for the employer.

Second Circuit Holds Granting Accommodation to Avoid Compliance with Vax Requirement or Testing Law Would Pose an Undue Hardship

The plaintiff in Russo v. Patchogue-Medford Sch. Dist, 129 F.4th 182 (2nd Cir. 2025), was a school psychologist who sought exemption from the school district’s policy requiring employees to either receive a COVID-19 vaccination or submit to weekly COVID-19 testing, in compliance with New York state law, claiming her religious beliefs prohibited vaccination and testing. The school district denied the plaintiff’s exemption request as well as her request to work remotely as an accommodation, asserting that compliance with the requests would cause the school district to violate the law and that her “physical presence in the District is necessary to conduct the essential functions of [her] job.”  To avoid having to comply with the policy, the plaintiff took an unpaid leave of absence and when the vaccine and testing requirement was lifted, she returned to work and sued the school district for failure to provide a reasonable accommodation in violation of Title VII.

The Second Circuit affirmed summary judgment for the employer. First, the court stated, granting “an accommodation that would require an employer to violate the law imposes an undue hardship.” As to plaintiff’s proposed remote-work accommodation, the school district satisfied its requirement of establishing undue hardship under Title VII by demonstrating that providing this accommodation would result in substantial increased costs. Thus, the court concluded, plaintiff’s claims lacked merit and summary judgment was appropriate.