Littler Lightbulb – April Employment Appellate Roundup

Fifth Circuit Affirms Judgment for Employer on Title IX and Title VII Retaliation Claims

In Lewis v. Board of Supervisors of LSU, __ F.4th __ (5th Cir. Apr. 8, 2025), a former employee of a university football department who held various positions, including recruiting and alumni relations, internally reported that the assistant coach and recruiting coordinator sexually harassed and assaulted her and others. After she was terminated from employment, she filed suit alleging, among other things, retaliation for reporting the harassment, in violation of Title IX and Title VII. In response, the university argued that the plaintiff was terminated from employment, along with about 40 others in the football program, as part of a new head coach’s initiative to reorganize the recruiting department and hire his own staff. After a six-day trial, the jury returned a verdict in favor of the university on all claims, and the plaintiff appealed.

Under both Title IX and Title VII, the Fifth Circuit stated, the plaintiff “must show a causal connection between the protected activity and the adverse action.” The plaintiff in this case failed to “put forth the strong and overwhelming evidence needed to reverse” a jury verdict, the court held. Reviewing the trial transcript, the court found there was ample evidence that the plaintiff was terminated as part of the new head coach’s effort to “clean house” and bring his own staff into the football program, and that when he made the decision to terminate the plaintiff’s employment he did not know of her internal complaints. Accordingly, the Fifth Circuit affirmed the trial court’s judgment as a matter of law.

Split Eleventh Circuit Denies Rehearing in Title IX Sex Discrimination Case

In another Title IX case, the Eleventh Circuit denied rehearing en banc of its decision in Joseph v. Board of Regents of the University System of Georgia, __F.4th __ (11th Cir. Apr. 8, 2025), holding that Title IX does not provide an implied right of action for sex discrimination in employment. Writing for the majority, Chief Judge William Pryor stated that while Title VII provides an express right of action for sex discrimination in employment, “Title IX does not provide a duplicative implied private right of action for sex discrimination against employees.” Noting that the Supreme Court has recognized an implied right of action for students who have suffered sex discrimination in violation of Title IX and created a related implied right of action for retaliation when employees complain about sex discrimination against students, the Eleventh Circuit stated that “Title VII and Title IX work together to attack the problem of sex discrimination in schools through different mechanisms.” 

In contrast, in a lengthy discussion of prior Supreme Court cases, the dissent argued that the Supreme Court has repeatedly recognized that “Congress has provided a variety of remedies, at times overlapping, to eradicate employment discrimination…. So an overlap in remedies does not provide a basis for ignoring Congress’s policy determination and depriving employees of access to Title IX.” In addition, the dissent noted, “every one of our sister circuits that has considered whether a teacher may sue under Title IX has found they may—the opposite conclusion of our Court.”¹

Sixth Circuit Examines Accrual of Claims Under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA)

Memmer v. United Wholesale Mortgage LLC, __F.4th __ (6th Cir. Apr. 18, 2025) examined the effect of the EFAA on plaintiff’s claim to have her harassment case heard in court rather than in arbitration, notwithstanding the arbitration provision in the employment agreement she signed. The EFAA allows an individual claiming sexual harassment or assault to elect judicial resolution, rather than arbitration of “any dispute or claim [of sexual harassment] that arises or accrues on or after the date of enactment of this Act.” After the district court held that the arbitration agreement was enforceable, the plaintiff appealed. 

A majority of the Sixth Circuit examined the language of the EFAA and stated that “when a dispute arises is a fact-dependent inquiry.” In this case, the Sixth Circuit found, the plaintiff’s claim “accrued before the date of enactment…because she quit her job several months before, and any injury, therefore, preceded that date.” However, the court noted, the plaintiff filed the EEOC charge, as well as her lawsuit, after the EFAA became law. Under these circumstances, the Sixth Circuit held, determining when the dispute arose is “best answered in the first instance by the district court,” particularly when the district court did not address the EFAA in its initial opinion. The court therefore reversed the judgment of the district court and remanded the case for further proceedings.

The dissent reached a different conclusion, agreeing with the district court’s enforcement of the arbitration agreement. Reviewing the legislative history, the dissent concluded that “disputes” and “claims” are the same and “arise or accrue at the same time.” Noting the congressional decision to omit “filing” language in the effective date provision of the statute, the dissent argued that all the plaintiff’s claims relate to discrimination and mistreatment while she was employed—well before the Act took effect.

Tenth Circuit Dismisses Trade Secrets Claims

In Double Eagle Alloys, Inc. v. Hooper, __F.4th __ (10th Cir. Apr. 22, 2025), the Tenth Circuit examined claims that an employee violated the Defend Trade Secrets Act (DTSA) and Oklahoma’s trade secret law when he left his employer for a competitor and took with him notes and 2,660 digital files containing financial, technical, and business information. The parties cross-moved for summary judgment, and the district court granted summary judgment to the defendant (the competitor) finding the plaintiff corporation failed to define its alleged trade secrets with sufficient particularity, and the plaintiff appealed.

On appeal, the Tenth Circuit first stated that “[t]o qualify as a trade secret, (1) the owner must have ‘taken reasonable measures to keep such information secret,’ and (2) the information must derive ‘independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information[.]’” Applying these requirements, the court focused on three categories of alleged trade secrets: specifications for various materials, pricing, and customer drawings. As to the first category, the Tenth Circuit found that the plaintiff failed to introduce evidence that its material specifications were subject to specific protection, were known only to a limited number of people, were not readily ascertainable, or were valuable because they were not widely known. In fact, the court found, the undisputed evidence revealed that the plaintiff publicly posted certain aspects of its material specification on its website. There was also no evidence describing the significance of its specifications, the time and effort required to create the specifications, the competitive advantage that these specifications afforded the plaintiff, or the uniqueness of the specifications compared to other distributors.

As to prices, the Tenth Circuit noted that “[a]s a general matter, confidential data regarding operating and pricing policies can qualify as trade secrets…. But the plaintiff must provide evidence that the pricing structure conferred some type of competitive advantage or economic value to the information’s owner.” In this case, the court found, the plaintiff failed to do so. Among other things, the plaintiff shared its prices with customers and did not prevent its customers from sharing those prices. Finally, as to customer drawings that court found the plaintiff did not own the drawings, which came from and belonged to the customers and therefore could not be the plaintiff corporation’s trade secrets. 

Based on all the evidence, the Tenth Circuit concluded the district court had properly dismissed the plaintiff corporation’s trade-secret law claims under the DTSA and state law.

Sixth Circuit Enforces Arbitration Agreement, Despite Severance of a Clause in the Agreement

The plaintiffs in Gavin v. Lady Jane’s Haircuts for Men Holding Co., LLC, __F.4th __ (6th Cir. Apr. 23, 2025)² 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.