Appellate

We have handled appeals involving some of the nation’s most influential labor and employment laws. 
 

A Snapshot of Recent Appellate Cases Where Littler Made a Difference

Arbitration

Arbitration agreements have remained highly important for employers as a means of resolving workplace concerns and avoiding expensive and time-consuming litigation, especially class, collective, and other representative actions that too often have bet-the-company stakes. Littler has been particularly successful in enforcing arbitration agreements and has had a number of wins in appellate courts, including before the U.S. Supreme Court.

Viking River Cruises, Inc. v. Moriana, 142 S. Ct. 1906 (2022)

Littler represented Viking River Cruises in a recent U.S. Supreme Court case that constitutes a significant win for California employers seeking to enforce arbitration agreements of an employee’s individual claims under California’s Private Attorneys General Act (PAGA). PAGA authorizes class-like representative actions by any “aggrieved employee . . . on behalf of himself or herself and other current or former employees” to obtain civil penalties. Under previous law, PAGA actions could only be maintained in court on behalf of the State of California, and PAGA waivers and/or requirements that employees pursue individual PAGA actions in arbitration were held to be invalid. In Viking River Cruises, the U.S. Supreme Court overruled long-standing California Supreme Court precedent holding that PAGA claims could not be split into arbitrable “individual” claims and non-arbitrable “representative” claims. Analyzing the Federal Arbitration Act (FAA) and PAGA, the Court held that the FAA preempts the California law and, as a result, plaintiff’s individual PAGA claim was arbitrable. Most significantly, the Court also held that “PAGA provides no mechanism to enable a court to adjudicate non-individual PAGA claims once an individual claim has been committed to a separate proceeding.” Accordingly, the Court dismissed the non-individual representative claims on behalf of other employees.

Gavin v. Lady Jane’s Haircuts for Men Holding Co., LLC, 135 F.4th 461 (6th Cir. 2025) 

The plaintiffs in Gavin v. Lady Jane’s Haircuts for Men Holding Co., LLC, 135 F.4th 461 (6th Cir. 2025) were hairdressers who filed a class action in federal court claiming their employer underpaid them by misclassifying them as independent contractors rather than employees. They argued that the arbitration clause in the independent contractor agreement they signed was unenforceable due to a cost-shifting provision in the arbitration clause. Applying the severability provision in the contract, the district court severed the cost-shifting provision, enforced the rest of the arbitration clause, and granted the employer’s motion to dismiss.

The plaintiffs appealed to the Sixth Circuit, which asked, “May we sever the cost-shifting segment from the arbitration clause and enforce the rest of it?” In response, the court stated: “[W]hen the arbitration agreement at issue includes a severability provision…courts should not lightly conclude that a particular provision of an arbitration agreement taints the entire agreement.” Applying that principle, the court rejected the plaintiffs’ argument that the court must sever not only the cost-shifting clause, but also the entire arbitration section, noting that severability clauses were designed “to save more and cut less from an agreement.” Examining what it termed the straightforward language of the severability provision in the contract in the context of the entire agreement, the court concluded that “the parties here did not agree to waive the entire arbitration agreement or any part of it. Instead, a distinct requirement within that agreement has been held invalid.” Accordingly, the Sixth Circuit affirmed the district court’s dismissal of the lawsuit.

Wallace v. Grubhub Holdings, Inc., 970 F.3d 798 (7th Cir. 2020)

In a significant decision, the Seventh Circuit Court of Appeals interpreted a provision of the Federal Arbitration Act (FAA) that exempts from arbitration “workers engaged in foreign or interstate commerce.” Littler represented Grubhub, an online and mobile food ordering platform, in a consolidated appeal affirming two district court decisions enforcing an arbitration agreement signed by delivery drivers who claimed they should be exempt under the FAA because the food they delivered had moved across state lines. Distinguishing this case from those involving “last mile” drivers who drove an intrastate leg of an interstate route, the Seventh Circuit held in a published decision that, to fall within the exemption, “the workers must be connected not simply to the goods, but to the act of moving those goods across state or national borders.” The court also rejected the delivery drivers’ petition for an en banc rehearing.

Edwards v. Doordash, Inc., 888 F.3d 738 (5th Cir. 2018)

Littler successfully defeated class certification and then on appeal succeeded in affirming its dismissal of this putative collective action in favor of compelling arbitration. Distinguishing the case from other cases certifying collective actions prior to determining arbitrability, the Fifth Circuit Court of Appeals held in a published decision that the district court properly decided the arbitrability question before deciding class certification because, among other things, Doordash, Inc. “promptly moved to compel the sole plaintiff to arbitrate his claims” prior to the presence of additional opt-in plaintiffs. The Fifth Circuit also decided the arbitration agreement was enforceable despite numerous arguments against enforceability raised by the plaintiff.

Chamber of Commerce v. Bonta, No. 20-15291 (9th Cir. 2023)

In a significant win for California employers, the Ninth Circuit Court of Appeals, in Chamber of Commerce v. Bonta affirmed a district court injunction striking down California Assembly Bill 51 (“AB 51”) as preempted by the Federal Arbitration Act (FAA), after nearly three years of legal challenges. As a result, California employers may continue to implement mandatory employment arbitration agreements for employee claims for unpaid wages, discrimination, and numerous other causes of action under the Labor Code and the Fair Employment and Housing Act (FEHA).

Americans with Disabilities Act (ADA)

Challenges to employers by employees claiming they were discriminated against because of a disability or not provided a reasonable accommodation of their disability generally involve consideration of many moving parts including the business requirements of the employer, the qualifications of the employee and the reasonableness of the employee’s demands. Littler’s in-depth analysis of these factors has resulted in significant wins in a number of ADA appellate cases, including those summarized below.

Tchankpa v. Ascena Retail Group, Inc., 951 F.3d 805 (6th Cir. 2020)

The Sixth Circuit Court of Appeals affirmed summary judgment Littler had obtained for its client in a significant published decision analyzing the standard for reasonable accommodations under the Americans with Disabilities Act (ADA). Applying the Sixth Circuit’s multi-part test for evaluating reasonable accommodation claims, the court rejected the plaintiff’s claim that the employer violated the ADA when it denied his request for an accommodation to work from home three days per week because of an injured shoulder. The Sixth Circuit emphasized that the plaintiff bears the burden of establishing that the requested accommodation is reasonable, and the court emphasized that an accommodation is reasonable only if it addresses “a key obstacle preventing [the employee] from performing a necessary function of [his job.]” In this case the court found that the plaintiff failed to establish how working from home three days per week would enable him to perform his job, which was to transport laptops. The plaintiff also failed to provide medical evidence tying his work-from-home request to his injured shoulder.

Clark v. Champion National Security, Inc., 952 F.3d 570 (5th Cir. 2020) 

The Fifth Circuit Court of Appeals set forth the standards for proving disability discrimination under the ADA in a decision analyzing circumstances where the employee was fired for sleeping at his desk, allegedly caused by a diabetes-related condition. Namely, the Fifth Circuit held, the employee may either present direct evidence of discrimination or prove: (1) that the employee has a disability; (2) was qualified for the job; and (3) was subject to an adverse employment action on account of the employee’s disability. First, Littler argued, and the circuit court agreed, that the employer’s generalized knowledge of the plaintiff’s medical condition was insufficient to infer direct evidence of discrimination. Next, Littler focused on whether the plaintiff was qualified for his job and successfully convinced the court that maintaining alertness was a basic element of his job as a Human Resources Manager. Accordingly, the court affirmed summary judgment for the company and denied plaintiff’s motion for rehearing en banc.

Mueck v. La Grange Acquisitions, 75 F.4th 469 (5th Cir. 2023)

Termination of an alcoholic employee for missing shifts did not violate the ADA, the Fifth Circuit Court of Appeals held in Mueck v. La Grange Acquisitions. Although the Fifth Circuit found the district court erred in granting summary judgment to the employer on the issue of whether the plaintiff’s alcoholism was a disability under the ADA, the appellate court nevertheless upheld the district court’s finding that the plaintiff failed to provide evidence he was discriminated against because of his disability. Rather, the court held the employer provided a legitimate, non-discriminatory reason for the plaintiff’s termination: the conflict between his court-ordered substance abuse classes and his shift schedule.

The Fifth Circuit also agreed with the district court that the plaintiff failed to request an accommodation for his disability, which would have triggered the required interactive process under the ADA. Rather, the plaintiff’s discussions with his supervisor focused on the legal consequences of his most recent driving while intoxicated (DWI) charge and the court-ordered participation in a substance abuse program that interfered with his work schedule. Based on these findings, the court also affirmed summary judgment for the employer on the plaintiff’s ADA failure-to-accommodate claim.

Brigham v. Frontier Airlines, Inc., No. 21-1335 (10th Cir. Jan. 24, 2023)

Providing a reasonable accommodation under the Americans with Disabilities Act (ADA) does not require an employer to violate a collective bargaining agreement the Tenth Circuit recently held in Brigham v. Frontier Airlines, Inc. The appellant in the case was a flight attendant who was a recovering alcoholic. She asked to be excused from the airline’s bidding system for flight schedules or to be reassigned to light duty in the general office to void overnight layovers because she claimed they tempted her to drink. However, the airline’s collective bargaining agreement (CBA) with the flight attendants’ union, required use of the flight schedule bidding system to determine a flight schedule, and reassignment to the general office was only available to employee’s injured on-the-job, and as such the appellant was not eligible for reassignment. Accordingly, the airlines rejected her requests. Unable to bypass the bidding system or move to the General Office, the flight attendant violated airline policy and the CBA by missing too many assigned flights and the airlines terminated her employment.

The flight attendant sued, and the District Court for the District of Colorado granted summary judgment to the airline. The Tenth Circuit affirmed citing the Supreme Court’s decision in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 79 (1977) that “the duty to accommodate doesn’t require an employer to take steps inconsistent with a collective bargaining agreement.” As in Hardison, the court pointed out that “the requested accommodation [of bypassing the CBA’s bidding system] would have disrupted the legitimate expectations of other employees relying on the collective bargaining agreement.” It also found that no “vacancy” existed in the General Office—which could have triggered the reassignment obligation under the ADA—because the airline had limited temporary General Office positions only to employees injured on-the-job, as was its right under Duvall v. Georgia-Pacific Consumer Products, L.P., 607 F.3d 1255 (10th Cir. 2010). The court also rejected the employee’s argument that the airline violated the ADA by failing to engage in the interactive process. Citing cases from other circuits the court held that “the failure to engage in the interactive process is not independently actionable under the Act.”

Class Actions

As employment class and collective actions continue to proliferate, a threshold issue is certification of a class of employees. Littler has been particularly effective in marshalling the factual and legal arguments necessary to defeat class certification at both the lower court and appellate levels saving clients from the time, disruption, and costs involved in the extensive litigation of these types of cases.

Bowerman v. Field Asset Services, Inc., 39 F.4th 652 (9th Cir. 2022) 

This putative misclassification class action not only resulted in a significant win for Littler’s client but also established and affirmed significant legal principles regarding class certification. Specifically, the Ninth Circuit Court of Appeals analyzed the standards for certification of a class action under Federal Rule 23, reversing the district court’s certification decision and decertifying the class. In discussing the predominance of common issues required for class certification, the Ninth Circuit emphasized the distinction between: (i) individual differences in calculating the amount of damages, which would not defeat class certification when common issues otherwise predominate; and (ii) the inability of plaintiffs to show that the whole class suffered damages traceable to the defendant’s conduct, which defeated class certification in this case. Ultimately, in addition to decertifying the class in this published decision, the Ninth Circuit reversed final judgment in favor of eleven class members and partial summary judgment on liability as to all class members, and vacated an award of more than $5 million in attorney fees to plaintiffs’ counsel.

Vallone v. CJS Solutions Group, LLC d/b/a HCI Group, 9 F.4th 861 (8th Cir. 2021)

In a significant published decision on a threshold jurisdictional issue, the Eighth Circuit Court of Appeals denied certification to employees of Littler’s client, a Florida-based technology company, who neither lived nor worked in Minnesota and sought compensation for time spent commuting to and from worksites around the country. Based on Littler’s arguments, the Eighth Circuit Court of Appeals became one of the first appellate courts to apply the U.S. Supreme Court’s decision in Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017), to a Fair Labor Standards Act (FLSA) collective action. Upholding the district court’s denial of certification, the appellate court held that only workers with a connection to the forum state may join an FLSA collective action. Quoting Bristol-Myers, the Eight Circuit Court of Appeals stated it does not have jurisdiction “to entertain claims involving no in-state injury and no injury to residents of the forum State.”

Discrimination

Littler’s experience with all aspects of discrimination law, including age, disability, gender, race, national original, religion, as well as its experience with issues related to sexual harassment, has helped in its support of clients and defense of discrimination lawsuits at both the district and appellate court levels.

Brady v. Walmart Stores East I, LP, (8th Cir. 2025)

After she was not selected for a position as a retail store daytime support manager, the plaintiff in Brady v. Walmart Stores East I, LP, 144 F.4th 1047 (8th Cir. 2025) sued her employer for sex discrimination in violation of Title VII. The district court granted summary judgment for the employer and the plaintiff appealed.

First, the Eighth Circuit considered and rejected the plaintiff’s claim that a supervisor’s remark that the male employee selected for the position “was sick” and “had a family to support” was direct evidence of discrimination. The comment, the court stated “was facially and contextually neutral as to sex. On its face, the comment neither related to [the plaintiff] nor ‘to the abilities of female applicants’ to perform in the support manager role.” Next, the Eighth Circuit found that the plaintiff could not create an inference of sex discrimination under the McDonnell Douglas framework because she could not establish that she met the minimum qualifications for the position she sought: “The record is clear that the position to which she applied had specific qualifications that she did not meet.” In contrast, the male employee who was selected for the position, the court found, was qualified for the position because he was already working as a nighttime support manager, which met the specific qualifications required for the position. Based on the plaintiff’s failure to establish either direct evidence of sex discrimination or an inference of unlawful discrimination, the Eighth Circuit affirmed summary judgment for the employer.

Clacks v. Kwik Trip, 108 F.4th 950 (7th Cir. 2024)

In Clacks v. Kwik Trip, a Black truck driver claimed he was subjected to a hostile work environment and wrongfully terminated in retaliation for his complaints. Rejecting the hostile work environment claim, the court found the employer was initially not put on notice of racial harassment and, when it was, it promptly investigated and terminated the employees involved.

As to the plaintiff’s wrongful termination claim, the court found that the employer offered the employee the option of returning to work in his original position or to a different position. When the employee stated he was afraid to return to work, the company offered him a severance package, which he declined. The company reasonably interpreted the employee’s fear of returning to work and his rejection of a severance package as a resignation, the court found. Accordingly, the court held that “[the employee] cannot meet his burden to show that [the company] was motivated to retaliate against him due to his harassment complaints,” and affirmed summary judgment for the employer.

Cocuzzo v. Trader Joe's East Inc., 121 F.4th 924 (1st Cir. 2024)

After the employer terminated the approximately 70-year-old plaintiff in Cocuzzo v. Trader Joe's East. Inc. for buying beer for her underage grandson at the store where she worked, she filed suit for age discrimination in violation of the ADEA. The First Circuit found the employer articulated a legitimate, nondiscriminatory reason for its decision to terminate the employee — her knowing purchase of alcohol for an underage person in violation of the store’s alcohol policy — and rejected the plaintiff’s claim that the company’s reason for her termination was pretext. The plaintiff also failed to identify similarly situated younger employees who were treated differently. Concluding that the plaintiff “failed to identify any minimally sufficient evidence to support a finding of pretext or discriminatory animus,” the First Circuit affirmed summary judgment for the employer.

Price v. Valvoline, 88 F.4th 1062 (5th Cir. 2023)

The plaintiff in Price v. Valvoline filed suit in federal court, alleging he was subjected to a hostile work environment and that his race (Black), not his violations of the company’s attendance policy, was the real reason for his termination. Analyzing the plaintiff’s discrimination claim, the Fifth Circuit concurred with the district court that there was no direct evidence of discrimination and added that even if there had been evidence that race factored into the termination decision, plaintiff’s claim would still have failed because the employer had established by a preponderance of evidence that the same decision would have been made regardless of the plaintiff’s race. In this regard, the court noted that the plaintiff understood the company’s attendance policy and the progressive discipline imposed for violations, which he characterized as “pretty straightforward.” Having “repeatedly found that violation of a company’s attendance policy is a valid, non-discriminatory reason for termination,” the court affirmed summary judgment for the employer. The court also affirmed summary judgment on the plaintiff’s hostile work environment claim, finding that one stray remark and two isolated comments by two different individuals were not “extremely serious” or sufficiently severe.

Sameh Said v. Mayo Clinic, No 21-3881 (8th Cir. 2022)

Affirming summary judgment in favor of Littler’s client, the Eighth Circuit Court of Appeals rejected a surgeon’s claim of disparate treatment based on his race (African American), religion (Muslim), and national origin (Egyptian). The plaintiff, who was recommended for termination for sexual harassment and unwelcome romantic advances, resigned prior to his termination and claimed that the medical center had given preferable treatment to another physician who was white, Canadian, and an Atheist. The plaintiff claimed this other physician had a conflict of interest due to his relationship with a medical device manufacturer, as well as poor reviews for abrasive and disrespectful communications and angry outbursts. Notably, the court found the two were not appropriate comparators emphasizing that, absent a finding of intentional discrimination (not present in this case), the court was not vested with “the authority to sit as [a] super-personnel department reviewing the wisdom or fairness of the business judgments made by employers….”

National Labor Relations Act (NLRA)

A hallmark of its practice is Littler’s long-standing and extensive experience in all aspects of labor law. The knowledge baked into our DNA has enabled Littler lawyers to obtain significant wins for unionized employers and develop the law at the appellate level to be more favorable to employers.

Pittsburgh Mailers Union Local 22 v. PG Publishing Co., 30 F.4th 184 (3d Cir. 2022)

In a significant win for its client and other unionized employers, Littler succeeded in changing the law in the Third Circuit Court of Appeals by convincing the appellate court to overrule prior Third Circuit precedent and affirm summary judgment for its client, holding that an arbitration provision in a collective bargaining agreement (CBA) did not survive the expiration of the CBA. The Third Circuit cited U.S. Supreme Court precedent applying contract interpretation principles to retiree healthcare benefits clauses in expired union contracts and held that if a specific provision of a CBA does not have its own durational clause, the general duration of the CBA applies. More specifically, the court stated: “[Arbitration provisions are contractual provisions that are not required by the NLRA [National Labor Relations Act] to continue in effect during the negotiation of a new CBA.” Thus, the Third Circuit upheld the district court decision finding that the arbitration provision in the expired union contract, which had no separate durational provision, was also expired and therefore the employer could not be compelled to arbitrate the employees’ grievances.

Trade Secrets

In an increasingly competitive business environment, protecting trade secrets is important for employers. Littler’s ability to move swiftly against employees and competitors who misappropriate trade secrets not only provides restitution for our clients, but also discourages future misdeeds.

Quantlab Technologies, Limited (BVI) v. Kuharsky, 696 F. App’x 682 (5th Cir. 2017)

Following a jury trial, the Fifth Circuit Court of Appeals upheld the district court’s judgment as a matter of law in the company’s claim for misappropriation of trade secrets by former employees who started a competing business following their separation from employment. In a significant win for Littler’s client, the Fifth Circuit upheld an award of $12.2 million to the company and an injunction prohibiting the former employees from participating in a competing business for a period of two years.

Whistleblowing and Retaliation

Littler has succeeded in defeating all types of whistleblowing retaliation cases, including those under the False Claims Act, sometime referred to as the Whistleblower Act. Analyzing and framing the facts and the issues based on the applicable standard of review has enabled Littler to affirm summary judgment on appeal in these types of cases.

Crosbie v. Highmark Inc., 47 F.4th 140 (3d Cir. 2022)

In a precedential decision, the Third Circuit Court of Appeals affirmed summary judgment in favor of Littler’s client in a whistleblower retaliation suit under the False Claims Act. “Whistleblowing does not insulate an employee from being fired for misconduct,” the Third Circuit stated, noting that the employee’s complaint of possible fraud by some doctors in the health insurance company’s network of doctors occurred more than a year before his termination for harassment of a co-worker. The court found that the employee’s allegations that the investigation into his misconduct was not sufficiently thorough or that the manager to whom he complained about the potential fraud was one of the people interviewed in the harassment investigation were insufficient to show pretext. As to the investigation, the employee failed to show that it “was so thoroughly flawed that a jury could find it unbelievable.” In rejecting the employee’s claim that the manager to whom he complained about potential fraud used the harassment investigation interview to retaliate against him, the Third Circuit pointed out that there was no evidence that the manager’s discussion with the investigator influenced the investigation or the decision to terminate the employee’s employment. “Speculation is no substitute for evidence,” the court powerfully concluded.