Littler Lightbulb: July Appellate Roundup

This Littler Lightbulb highlights some of the more significant employment law developments in federal courts of appeal in the last month.

• Seventh Circuit Affirms Summary Judgment to Employer in Reverse Title VII Claim

Vavra v. Honeywell Int'l, Inc., 106 F.4th 702 (7th Cir. 2024), involved a claim by a white employee that he was retaliated against in violation of Title VII and the Illinois Human Rights Act (IHRA) after refusing to attend his employer's mandatory diversity, equity and inclusion training, which he believed discriminated against white workers. The Seventh Circuit affirmed summary judgment in favor of the employer finding the employee had no basis for his belief that the training violated Title VII or the IHRA, and he failed to establish a causal connection between his objections to the training and his termination. The employee's supervisor, who had taken the training, shared with the employee that the training had featured a white victim of unconscious bias. Despite daily reminders about the mandatory training, and a meeting with his supervisor who urged him to take the training and informed him that he would be terminated if he continued to refuse to do so, the employee maintained his refusal and said he would accept the consequences. Accordingly, the court held, the company "earnestly and repeatedly sought [the employee's] compliance with the training requirement, and it was only upon his final, absolute refusal to take the training that it decided to terminate him."

• Ninth Circuit Holds Temporal Proximity Between Hostile Environment Complaint and Termination Insufficient to Support Title VII Retaliation Claim

The plaintiff in Kama v. Mayorkas, --- F.4th ---- (9th Cir. 2024), a former transportation security officer with the Transportation Security Administration (TSA), claimed he was denied Family and Medical Leave Act (FMLA) leave and was terminated in retaliation for complaining of a hostile work environment. The district court granted summary judgment for the employer and the employee appealed.

The plaintiff contended that the stated reason for his employment termination–his refusal to cooperate with the TSA's investigation of suspected criminal activity—was merely a pretext to cover up unlawful retaliation. In support of his claim, the plaintiff relied primarily on the temporal proximity between the date of his last formal EEO complaint and his termination 56 days later, asserting that this proximity alone was sufficient to establish pretext. The Ninth Circuit acknowledged that "temporal proximity alone can establish pretext 'in some cases,'" but found that it was insufficient in this case. First, the court stated, "in nearly all of the cases relied upon by Plaintiff, the protected activity and adverse action were separated by only a few days, and not by a period of time like 56 days." As to pretext, the court noted that it was undisputed that the plaintiff failed to cooperate in the investigation of suspected criminal activity, and there was a five-month gap between plaintiff's informal EEO complaint and the start of the investigation. Based on these facts, the Ninth Circuit affirmed summary judgment for the employer.

• Third Circuit Holds NCAA Athletes Can Be Considered Employees Under the FLSA

In contrast to the Ninth and Seventh Circuits, in Johnson v. National Collegiate Athletic Association, --- F.4th ---- (3d Cir. 2024), the Third Circuit held that athletes at NCAA Division I schools may be considered employees under the Fair Labor Standards Act (FLSA). Rejecting the multi-factor test applied by the district court, the Third Circuit held that college athletes may be employees under the FLSA when they "(a) perform services for another party, (b) necessarily and primarily for the [other party's] benefit...(c) under that party's control or right of control...and (d) in return for 'express' or 'implied' compensation or 'in-kind benefits.'" Ultimately, the court stated, "the touchstone remains whether the cumulative circumstances of the relationship between the athlete and college or NCAA reveal an economic reality that is that of an employee-employer relationship." Concluding that "college athletes cannot be barred as a matter of law from asserting FLSA claims simply by virtue of a 'revered tradition of amateurism' in D-I athletics," the Third Circuit referred the case back to the district court to amend its decision. For more information on this decision, see Littler's Insight.

• Seventh Circuit Affirms Summary Judgment for Employers in Racially Hostile Work Environment Retaliation Cases

In Clacks v. Kwik Trip, --- F.4th ---- (7th Cir. 2024), the Seventh Circuit addressed claims by a Black truck driver that he was subjected to a hostile work environment and wrongfully terminated in retaliation for his complaints. Rejecting plaintiff's racially hostile work environment claim, the Seventh Circuit reaffirmed prior decisions holding that an employer is only liable "when the employee shows that her employer has been negligent either in discovering or remedying the harassment." In this case, 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 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 interpreted the employee's fear of returning to work and his rejection of a severance package as a resignation. "The fact that [the employee] did not expressly refuse a return offer is irrelevant," the court stated. Concluding that the employer "reasonably interpreted [the employee's] fear of returning to work as a rejection of that offer," 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. Littler represented the employer in this case.¹

Similarly, the plaintiff in Craig v. Wrought Washer Manufacturing Inc. --- F.4th --- (7th Cir. 2024) claimed he was unlawfully terminated in retaliation for filing a racial discrimination grievance with the union and expressing his concern to the plant manager about disparate treatment of Black employees. The company investigated the employee's complaints and determined that his claims lacked merit.

A few months later the plaintiff was reprimanded for using his cell phone on the shop floor several times, in violation of company policy, following which the plaintiff told his supervisor that "what he was doing was none of his '[expletive deleted] business.'" The plaintiff was suspended without pay for two weeks and told he could return to work if he signed a "last chance agreement" stating he would abide by the company's policies. He refused, and the company terminated his employment. After the district court granted summary judgment to the company on the plaintiff's termination claim, he appealed. The central issue on appeal was whether the plant manager told the plaintiff that the agreement required him to give up his discrimination complaint, which the company could not lawfully do. Examining the documents in the case and the deposition testimony, the Seventh Circuit determined that the reason the plaintiff refused to sign the agreement was because it did not provide for back pay. Accordingly, the court affirmed summary judgment for the employer.

• Ninth Circuit Holds Ministerial Exception Exempts Buddhist Center from Application of ADA

The plaintiff in Behrend v. San Francisco Zen Center, Inc., --- F.4th ---- (9th Cir. 2024) was a work practice apprentice at a Buddhist Center, where he performed various tasks, including maintenance, kitchen, and guest services, assisting with rituals, participating in meditations and services, cleaning the temple, attending talks and classes, and performing ceremonial duties. When he was assigned to the maintenance crew, he claimed it exacerbated his PTSD symptoms and sought an accommodation, including transfer from the maintenance crew. Ultimately, the Center decided to end the employee's apprenticeship. The plaintiff filed suit in district court claiming disability discrimination under the Americans with Disabilities Act (ADA). The district court granted summary judgment to the employer based on the ministerial exception, and the plaintiff appealed, arguing that he was not a minister because he performed mostly menial work and did not have a "key role in making internal church decisions and transmitting the faith to others."

Based on U.S. Supreme Court precedent and its own prior decisions, the Ninth Circuit rejected the plaintiff's "circumscribed view of the ministerial exception... by which only those who are high up in a religious organization can qualify as ministers." Noting that the purpose of the ministerial exception is "to ensure '[t]he independence of religious institutions' in matters of faith, doctrine, and government," the court found that in his role at the Center the plaintiff helped to carry out its mission. Thus, the Ninth Circuit held that the ministerial exception applied, and affirmed summary judgment for the employer.

Footnote

1. The lawyers in the case were Jacqueline E. Kalk and Emily A. McNee.