Littler Lightbulb – August 2026 Employment Appellate Roundup

Eighth Circuit Affirms Jury Verdict for Employer on Failure to Prevent Racial Harassment Claim

After losing a race discrimination case at trial, the EEOC appealed to the Eighth Circuit on the grounds that the jury instructions did not adequately cover its theory that the employer could have prevented workplace racial harassment. In EEOC v. Sun Chem. Corp., __ F.4th __ (8th Cir. Aug. 4, 2026), the Eighth Circuit held that it did not need to decide the adequacy of the jury’s instruction on the EEOC’s theory, because no evidence existed to support such a theory.

The court reasoned that for an employer to be liable on a failure-to-prevent harassment claim based on a co-worker’s conduct, the employer must (1) have actual or constructive knowledge of “ongoing” harassment and (2) decline to take action reasonably calculated to stop the harassment. In this case, the employer knew of only one racial comment by the alleged harasser, which would not have “placed the company on notice that he was a ‘known serial harasser.’” In addition, the employer took appropriate remedial action by sending the employee a written “disciplinary action” asking him to “take a step back and begin to think about what [he was] about to say and the consequences that may follow.” The Eighth Circuit noted that, although the employer’s action could have been stronger, its actions reflected the employee’s more than three decades of service without a history of harassment. Accordingly, the Eighth Circuit affirmed the jury verdict.

Fourth Circuit Holds Employer Did Not Violate FMLA Regulations by Contacting Physician to Authenticate a Medical Certification Form

In Mook v. Hall, __ F.4th __ (4th Cir. Aug. 4, 2026), the Fourth Circuit examined FMLA regulations 29 C.F.R. § 825.305(c), which instructs employers to advise employees if they find a medical certification supporting the need for FMLA to be incomplete or insufficient, and 29 C.F.R. § 825.307(a), which allows an employer to contact the health care provider “for purposes of clarification and authentication . . . after the employer has given the employee an opportunity to cure any deficiencies as set forth in § 825.305(c).”

The case involved an employee who had filled out his own FMLA medical certification form. The supervisor’s assistant contacted the nurse who signed the form to verify the signature, and the employee admitted to his supervisor that he had filled out the form himself and offered to take another certification to the doctor’s office to be completed and signed by the doctor. The supervisor rejected the employee’s offer and instead terminated his employment for exhibiting poor judgment that cast doubt on his honesty. The employee filed suit in federal district court alleging the employer interfered with his FMLA rights by contacting the medical provider in violation of FMLA regulations and then terminating his employment. The district court denied the employer’s motion for summary judgment and the employer appealed to the Fourth Circuit. 

On appeal, the Fourth Circuit analyzed whether, at the time the claim arose in November 2021, 29 C.F.R. § 825.307(a) clearly established that an employer could not contact a certifying medical provider to authenticate an employee’s FMLA certification without first giving the employee an opportunity to cure any alleged inauthenticity. Examining the regulations as a whole, the Fourth Circuit vacated the district court’s judgment and held that the regulations did not clearly establish such a requirement. The court reasoned that the cure period referenced in the regulations pertains to “incomplete” or “insufficient” certifications, which connote a lack of essential information, and that a reasonable employer could conclude those concepts do not include questions of authenticity. Accordingly, the Fourth Circuit held that the employee was not necessarily entitled to an opportunity to cure and remanded the case to the district court.

Seventh Circuit Affirms Summary Judgment for Employer in Hostile Work Environment and Failure to Accommodate Case

The plaintiff in Golat v. Skwierawski, 184 F.4th 938 (7th Cir. Aug. 4, 2026), who was a court reporter for a state court judge in Wisconsin, filed suit in federal district court alleging she was subjected to a hostile work environment based on her gender in violation of Title VII. In support of her claim, the plaintiff alleged, among other things, that the judge told her she was a “typical woman” who nagged, and that he bragged about his anatomy and dating prowess, and had a mug decorated with images of male genitalia and the words “hung jury.” The plaintiff also alleged that her employer failed to accommodate her work restrictions, in violation of the Rehabilitation Act, after she returned from medical leave. The district court granted summary judgment for the defendants on all claims and the plaintiff appealed to the Seventh Circuit, which affirmed.

On appeal, the Seventh Circuit set forth the standard for Title VII sexually hostile environment claims in the Seventh Circuit: the alleged conduct must be “sufficiently severe or pervasive to alter the conditions of employment such that it creates an abusive working environment.” In determining the severity of the conduct, the court must consider factors such as whether the comments are perceived as threats, expressions of sexual interest or sexual advances, and whether they were directed exclusively at the plaintiff or at a group of people that simply included the plaintiff. Applying these factors, the court found that although the incidents and comments were “unprofessional, rude, and offensive,” they were neither threatening nor did plaintiff construe them as sexual advances. Moreover, some of the conduct, like the mug, were not directed at the plaintiff. As to pervasiveness, the court found that the offensive comments which occurred six times over a five-year period were too sporadic to support liability.

As to the failure to accommodate claim, the plaintiff objected to the requirement that she take full days off for one or two-hour medical appointments and use accrued paid sick leave to cover the time off. Examining the evidence, the court found the employer’s explanation that it was operationally difficult to find substitute court reporters for partial was reasonable. The court also held that requiring an employee to use their sick leave did not violate the Rehabilitation Act. 

Eleventh Circuit Affirms Dismissal of Disability Discrimination Claims

In Waller v. Bd. of Regents of the Univ. Sys., 184 F.4th 1327 (11th Cir. Aug. 10, 2026), the plaintiff, a university respiratory therapy student, filed suit claiming, among other things, disability discrimination in violation of the ADA and the Rehabilitation Act after the university disciplined and discharged him from the respiratory therapy program following an incident in which the plaintiff had engaged in conduct that endangered the health and safety of a patient. The plaintiff alleged that the university professors and program administrators, who knew he had attention deficit disorder (ADD), anxiety, and depression, made the decision to terminate him from the program because of his conditions. The federal district court dismissed the claim, and the plaintiff appealed to the Eleventh Circuit.

Assessing the facts, the Eleventh Circuit accepted the plaintiff’s allegation that university and program administrators had discussed his medical conditions with his instructors and required him to provide certification from a psychiatrist or psychologist that he could withstand the stress of caring for patients. The plaintiff also alleged that complaints by three employees at the hospital where he worked that his performance was unsatisfactory due to his ADD, anxiety, and depression were passed on to university instructors and administrators. Nevertheless, the Eleventh Circuit held, these allegations lacked any factual support for the plaintiff’s claim that he suffered an adverse action “because of” his conditions. The connection between the plaintiff’s allegations and his removal from his position were speculative, the court stated, noting that the complaint failed to “identify which individuals took which actions” because of the plaintiff’s disabilities. Affirming dismissal, the Eleventh Circuit held “the complaint does not permit a reasonable inference” that the university punished or disciplined the plaintiff because of his conditions.

Eighth Circuit Affirms Summary Judgment for the Employer on Plaintiff’s Claim that Termination in a Reduction in Force Was Pretext for Race Discrimination

The plaintiff in Tobacco v. McKennan, __ F.4th __ (8th Cir. Aug. 10, 2026), filed suit in federal district court claiming she was terminated from employment based on her race in violation of Title VII, and that the employer’s assertion that she was terminated due to a reduction in force was a pretext for discrimination. In response, the employer, a clinical research institute, claimed it needed to reduce its budget by 5% and it selected the plaintiff for termination because, in contrast to other employees whose salaries were covered by grants, the plaintiff’s salary was primarily funded by “internal money.” The district court granted summary judgment for the employer and the plaintiff appealed to the Eighth Circuit.

On appeal, the plaintiff argued, among other things, that the chief clinical research officer who selected the plaintiff for termination failed to follow the employer’s reduction in force policy and its selection criteria. Stating that employers “are free to make employment decisions based upon mistaken evaluations, personal conflicts between employees, or even unsound business practices,” the Eighth Circuit found the plaintiff failed to connect the employer’s employment decision to racial animus. The Eighth Circuit also rejected the plaintiff’s claim that she and another Native-American employee were treated differently than non-Native-American employees because the plaintiff failed to show the non-Native American employees were “similarly situated in all relevant respects—a rigorous standard at the pretext stage,” or disparate treatment. Finally, the court rejected plaintiff’s temporal proximity argument based on the close timing between her prior complaints of discrimination and her termination, explaining that “proximity alone is insufficient to establish pretext.” For all these reasons, the Eighth Circuit affirmed summary judgment for the employer.

Fourth Circuit Affirms Summary Judgment for Third-Party Recordkeeping Company on ERISA Breach of Fiduciary Duty Claims¹

Kelly v. Altria Client Servs., __ F.4th __ (4th Cir. Aug. 10, 2026) involved claims for violations of ERISA relating to the plaintiff’s efforts to liquidate and transfer funds from an employer-sponsored profit-sharing plan in anticipation of a stock market bump following the 2020 presidential election. Among other things, the plaintiff claimed that the corporate record-keeper for the plan breached its fiduciary duty by not effectuating the sale of the funds as quickly as he requested and misled him into thinking that he would have access to the funds sooner than he did. The district court granted summary judgment for the company on the breach of fiduciary duty claim and the plaintiff appealed to the Fourth Circuit.

Affirming summary judgment and awarding attorney’s fees to the record-keeping company, the Fourth Circuit held that the company was not a plan fiduciary, and that even if it were, it did not breach a duty owed to the plaintiff. The court found that the company accurately informed the plaintiff of the time it would take to liquidate the funds and complete the financial transactions requested, which occurred within the estimated timeframes. Nothing more was required.

Eighth Circuit Affirms Summary Judgment for Employer in ADA Disparate Treatment Case

In Christensen v. Union Pac. R.R. Co., __ F.4th __ (8th Cir. Aug. 11, 2026), the Eighth Circuit addressed an ADA disparate treatment claim under 42 U.S.C. § 12112(a) by a railroad conductor whose employer’s physicians denied a return to work after suffering a stroke. Although the plaintiff’s physicians had cleared him to return to work, the employer’s physicians reviewed the plaintiff’s medical records and, after several fitness-for-duty evaluations, concluded that the plaintiff “ha[d] an unacceptable risk for future seizure relating to his history of stroke and intracerebral hemorrhage.”

The district court granted summary judgment for the employer and the plaintiff appealed to the Eighth Circuit. In response to the plaintiff’s claim of disability discrimination, the employer asserted the plaintiff posed a “direct threat,” which an employer can rely on as a defense in response to ADA disparate treatment claims if the employer can establish that the employee’s disability poses “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation” based on an objectively reasonable individualized assessment in accordance with current medical evidence.

Examining the evidence, the Eighth Circuit affirmed summary judgment for the employer, finding the employer’s decision was objectively reasonable. The employer had conducted an individualized assessment based on multiple rounds of fitness-for-duty evaluations that involved comprehensive review of the plaintiff’s medical records, his condition, and his job duties, and it based its decision on the opinions of multiple physicians who relied on the most current medical knowledge and objective evidence. The court rejected the plaintiff’s argument that the medical opinions were invalid because they were based on the Federal Motor Carrier Safety Administration (FMCSA) guidance that the FMCSA had withdrawn, stating that “the law requires only that the employer rely on an ‘objectively reasonable’ opinion, rather than an opinion that is correct.”

Seventh Circuit Affirms Motion to Dismiss and Summary Judgment in Favor of Employer in Retaliation Suit

The plaintiff in Putnam v. CaramelCrisp LLC, __F.4th __ (7th Cir. Aug. 13, 2026) worked at a manufacturing company and repeatedly complained of food safety and quality control issues to management over the course of her five-year employment. In early 2019, she  sent two anonymous emails to the U.S. Food and Drug Administration (FDA) “detailing a litany of food safety violations” at the employer’s facility. Two weeks after sending the second email to the FDA, the company terminated her employment for neglecting her responsibilities.

Upon her departure, the plaintiff e-mailed work documents to herself and took a jump drive with additional information that she refused to return. The company sued her for misappropriation of trade secrets. While that lawsuit was pending, the plaintiff filed suit alleging retaliation under the Food Safety Modernization Act (FSMA), and state common law claims. The district court dismissed the state law claims and granted summary judgment to the employer on the plaintiff’s FSMA retaliation claim based on her emails to the FDA, but her retaliation claim based on complaints directly to management proceeded to trial. The jury returned a verdict in favor of the employer finding the plaintiff’s complaints were not contributing factors to any adverse action.

The plaintiff appealed to the Seventh Circuit, challenging various trial-related rulings, the dismissal of her state law claim, and the summary judgment ruling. The Seventh Circuit did not address the trial-related challenges, holding that the plaintiff’s failure to provide complete trial transcripts precluded meaningful appellate review. Similarly, the Seventh Circuit declined to address the plaintiff’s common law retaliatory discharge claim because, the court stated, “it automatically fails in light of the jury’s finding that [the plaintiff’s] termination was not motivated by her food safety reports.” 

The appellate court affirmed the district court’s summary judgment ruling on the plaintiff’s FSMA retaliation claim based on her emails to the FDA, finding there was no evidence that the employer knew of the emails, noting that the FSMA retaliation provisions require, among other things, that the employer knew that the employee engaged in protected activity and that it was a contributing factor to the adverse employment action. Emphasizing that speculation is insufficient to establish causation, the court found that in this case the plaintiff could not even identify who made the termination decision and therefore she could not establish that the decisionmaker knew about the e-mails, and that they were a contributing factor in her termination.

Eleventh Circuit Affirms Summary Judgment for Employer in Rehabilitation Act Accommodation Case

Kingsolver v. U.S. Attorney General, __F.4th __ (11th Cir. Aug. 20, 2026) involved a failure to accommodate claim under the Rehabilitation Act by an employee who suffered from depression and cardiac arrhythmia, which were exacerbated by work-related stress after she was promoted to a higher-level position. As an accommodation for these conditions, the employee requested unpaid leave, a lateral transfer to a comparable position, or other undefined help. In response, her supervisors offered her flexible use of her accrued paid leave and, because there were no comparable positions for which she was qualified, offered her a demotion instead of a lateral transfer. While waiting for a lateral position to open, the employee’s stress increased and she eventually accepted a demotion to a comparable lower-level position. The plaintiff then filed suit alleging disability discrimination and failure to accommodate in violation of the Rehabilitation Act. The federal court granted summary judgment to the employer and the plaintiff appealed to the Eleventh Circuit.

Noting that the Rehabilitation Act, which applies to the federal government, incorporates by reference substantive standards from Title I of the Americans with Disabilities Act, the Eleventh Circuit affirmed summary judgment for the employer. First, the court held, the plaintiff’s request for undefined help triggered no accommodation duty because an employer is only required to engage in the interactive process when an employee makes a specific demand. Next, the court found the plaintiff’s request for a lateral transfer to a non-existent position was unreasonable as a matter of law because it would have required the employer to create a new position or displace other employees to accommodate the plaintiff. Third, as to the plaintiff’s request for additional leave without pay, instead of using her available paid leave, the Eleventh Circuit stated that under the ADA and the Rehabilitation Act “a qualified individual with a disability is not entitled to accommodation of her choice, but only to a reasonable accommodation.” Lastly, the Eleventh Circuit rejected the plaintiff’s claim that the employer coerced her into accepting a demotion to a lower-level position. Rather, the court found the plaintiff had requested the transfer to a lower-level position, was happy when it was granted, and experienced improved symptoms after the demotion.