Littler Lightbulb – July 2026 Employment Appellate Roundup

Seventh Circuit Affirms Summary Judgment for the Employer on Title VII Transgender Discrimination and Retaliation Claims

The plaintiff in Brown v. Chicago Transit Authority, 179 F.4th 577 (7th Cir. June 24, 2026), a bus driver who is transgender, was denied FMLA leave for back pain for failure to provide the employer’s third-party FMLA administrator the required medical opinion from a specialist jointly approved by the employee and the employer. The plaintiff nonetheless reported to his work location that he was out for FMLA leave 24 times. When the falsification was discovered, the plaintiff’s supervisor discharged him from employment. He filed suit alleging transgender discrimination and retaliation under Title VII. The district court granted summary judgment to the employer and the plaintiff appealed to the Seventh Circuit.

Affirming summary judgment for the employer, the Seventh Circuit first addressed the plaintiff’s claim that other bus operators accused of FMLA reporting violations were not discharged, finding that the plaintiff failed to provide the critical information required for a jury to find the individuals he identified were valid comparators. Next, the Seventh Circuit rejected the plaintiff’s claim that the employer’s reason for firing him was a pretext for discrimination because he failed to provide evidence that the employer’s reasoning was disingenuous which, the court held, was required to support pretext.

As to the plaintiff’s claim that he was retaliated against because of his advocacy for transgender employees, the Seventh Circuit stated, “Ultimately…the inquiry comes down to one question: ‘Does the record contain sufficient evidence to permit a reasonable fact finder to conclude that retaliatory motive caused’ the materially adverse action?’” Answering this question, the court found there was no nexus between the union president’s comment that the plaintiff had to stop “bitchin” and the employment decision. Moreover, the court held, the multi-year gap between the plaintiff’s protected activity and his firing defeated his causation claim. 

Third Circuit Affirms Summary Judgment for the Employer on Race Discrimination and Retaliation Claims

Lynn v. The Bank of New York Mellon, 180 F.4th 133 (3d Cir. July 6, 2026), concerned race discrimination, retaliation, and hostile-work-environment claims by a Black employee who transferred to a different team and was terminated from employment after his position was eliminated. The federal district court granted summary judgment for the employer and the plaintiff appealed to the Third Circuit.

In support of his claim that he was retaliated against because of his race-discrimination complaints, the plaintiff pointed to his email to his supervisor complaining of race discrimination following his receipt of a performance improvement plan and his termination from employment less than a month later. Although the proximity between protected activity, such as a discrimination complaint, and adverse action may establish a prima facie case of retaliation, in this case the Third Circuit agreed with the district court that the plaintiff failed to prove that his complaint was the reason for his termination. Rather, the court found the plaintiff’s termination was the result of departmental reorganization and the plaintiff’s unsatisfactory job performance, which were legitimate reasons for termination. Moreover, the Third Circuit stated, “when ‘the hirer and the firer are the same individual and the termination of employment occurs within a relatively short time span following the hiring,’ that is strong evidence that ‘discrimination was not a determining factor for the adverse action taken by the employer.’”

The Third Circuit also rejected the plaintiff’s claim that his transfer to another team was a “demotion” and unlawful racial discrimination, finding the plaintiff voluntarily transferred to the new position which he admitted “perfectly matched” his experience. Finally, as to the plaintiff’s racially hostile environment claim, the Third Circuit found that the plaintiff failed to provide more than a conclusory statement that he “suffered intentional discrimination,” which was insufficient to support a hostile environment claim.

Ninth Circuit Affirms Employer’s Motion to Compel Arbitration in Sexual Harassment Case

In a case of first impression in the Ninth Circuit., Combs v. Netflix, Inc., 180 F.4th 1201 (9th Cir. 2026), the court examined the timing of the plaintiff’s complaint under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFAA), which allows plaintiffs alleging sexual assault or sexual harassment to proceed in court, notwithstanding any arbitration agreement between the parties. After an employee was terminated from employment for failure to comply with the company’s Covid-19 vaccination policy, the employee filed suit in state court, raising various state law claims of discrimination, sexual harassment, and hostile work environment. The employer removed the case to federal court based on diversity and moved to compel arbitration, which the district court granted, and the plaintiff appealed to the Ninth Circuit.

Examining the language of the EFAA, which provides that the Act applies to “any dispute or claim that arises or accrues” on or after its enactment on March 3, 2022, the Ninth Circuit concluded that the plaintiff’s claim accrued after the statute’s enactment but held that the dispute arose before then. Noting decisions from other circuits, the Ninth Circuit agreed that under the EFAA, a dispute arises when an employee registers a complaint with the employer and the employer opposes or disagrees with the employee’s assertions. The court rejected the plaintiff’s claim that a dispute does not arise until a formal complaint is filed with an external body, such as a court or state agency, while also rejecting the view that a dispute arises whenever the underlying challenged conduct occurred. Applying these criteria, the court held that the complaint in this case arose by December 2021 when the plaintiff complained to the employer of sexual harassment, which the employer “constructively opposed.” Accordingly, the Ninth Circuit affirmed the employer’s motion to compel arbitration.

Eleventh Circuit Affirms Dismissal of Covid-19 Claims Case

Est. of Lane Caviness v. Atlas Air, Inc., __ F.4th __ (11th Cir. July 10, 2026) involved claims by a group of employees that their employer’s Covid-19 protocols created a religiously hostile work environment in violation of Title VII, and various federal law and state tort claims, including a claim that their employer tortiously invaded their privacy by disclosing private medical information – their vaccination status – to company administrators in charge of enforcing Covid-19 protocols. The district court dismissed all the claims and the plaintiffs appealed to the Eleventh Circuit.

The Eleventh Circuit affirmed the district court’s dismissal of the case. Rejecting the plaintiffs’ religiously hostile environment claims, the court stated that to prevail on such a claim, “the plaintiff is required to prove that the defendant had a discriminatory intent or motive,” which it failed to do. On the contrary, the court found, the employer provided accommodations to employees who professed a sincere religious objection to the Covid-19 vaccine, allowing them to wear masks at work and undergo monthly testing. As to the plaintiff’s invasion of privacy claim, the Eleventh Circuit held that claim “requires that a matter be made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge,” which did not occur in this case.

Second Circuit Vacates District Court’s Judgment for Employee in Covid-19 Vaccine Religious Accommodation Case

In another Covid-19 vaccination case, the plaintiff in Bergin v. New York State Unified Court System, __ F.4th __ (2d Cir. July 15, 2026), filed suit in federal district court under Title VII, claiming religious discrimination following her termination from employment after her employer denied her request for a religious exemption from its Covid-19 vaccination requirement. The district court granted partial summary judgment for the plaintiff, and the employer appealed to the Second Circuit.

The Second Circuit reversed the district court. Based on the U.S. Supreme Court’s decision in EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768 (2015), the Second Circuit held that to state a prima facie case under Title VII the plaintiff must prove the employer acted out of a discriminatory motive in denying the plaintiff’s request for a religious accommodation, which the plaintiff failed to do in this case. Examining the record, the court found the employee, whose claims included concerns about “bodily integrity” and “the use of stem cells,” failed to provide sufficient information to the employer to support her request for a religious accommodation. Moreover, the Second Circuit stated, the employer’s knowledge of an employee’s need for a religious accommodation is not necessarily dispositive of the employer’s motive for denying the accommodation. To resolve this issue, the Second Circuit vacated the district court’s judgment and remanded the case.

First Circuit Affirms Summary Judgment for the Employer on Title VII Religion and National Origin Discrimination and Retaliation Claims

Farid v. Trustees of Dartmouth College, __ F.4th __ (1st Cir. July 13, 2026) concerned claims by a Muslim professor that the university discriminated against him on the basis of his religion and national origin in violation of Title VII by denying him tenure, and that it initiated research misconduct proceedings against him in retaliation for filing a discrimination complaint. The federal district court granted summary judgment for the employer and the employee appealed to the First Circuit, which affirmed summary judgment.

In support of his claim on appeal, the plaintiff asserted disparate treatment based on another professor in the same department who was granted tenure. The First Circuit, however, found that the evidence established that the plaintiff and the other professor were not similarly situated in almost every respect and that the other professor outperformed the plaintiff. The court also rejected the plaintiff’s claim that the university deviated from its tenure policies, finding that any policy deviation did not adversely impact his chances for tenure. Finally, the court found no evidence of discrimination based on the plaintiff’s religion or national origin and, on the contrary, the evidence established that the university’s actions were due to the plaintiff’s poor performance.

The plaintiff’s claim regarding the research misconduct proceedings involved removal of a graduate student as co-author of a paper that the student had helped research and draft. The student filed a complaint with the university and an investigation committee issued a report criticizing the plaintiff’s conduct and recommending that the student be included as co-author. The First Circuit concluded that there was no evidence that the university’s investigation of the student’s complaint, which was filed independently, was carried out to retaliate against him. 

Seventh Circuit Affirms Summary Judgment for the Employer on Plaintiff’s First Amendment Free Speech Claims

In Inendino v. Annette Nance-Holt, __ F.4th __ (7th Cir. July 16, 2026) a city firefighter was terminated from employment following a workplace investigation into his public Facebook account, which contained several racially charged and offensive posts. He sued the city claiming his termination violated his First Amendment free speech rights. The district court granted summary judgment to the city holding that the employee’s posts were not protected under the First Amendment because they did not touch on matters of public concern and even if they did, the city’s interest in efficiency and maintaining the public trust outweighed the plaintiff’s free speech interest under the Supreme Court’s balancing test in Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cnty., Ill., 391 U.S. 563, 568 (1968). The plaintiff appealed to the Seventh Circuit, which held that the district court erred in its analysis of whether the plaintiff’s posts touched on matters of public concern, but nevertheless affirmed summary judgment for the city based on Pickering. 

As to whether the plaintiff’s posts touched on matters of public concern, the Seventh Circuit stated, “[g]iven their form, content, and context, there are substantial arguments to be made that [the plaintiff’s] posts, while hateful and feckless, raised matters of public concern because they arise, at least in part, from a particular view of current newsworthy events and government policies.” However, the Seventh Circuit held, the Pickering factors weighed in favor of the city, emphasizing that Pickering was particularly applicable to firefighters where safety and order are of paramount concern, and whose job is to uphold the public’s trust and belief in their willingness to serve all residents equally. In this regard, the court noted that the firefighter’s offensive posts targeted one of the racial groups that predominated in the area where he was assigned to work. In sum, the Seventh Circuit held, the city’s interest in ensuring that its fire department succeeds in performing its public safety mission substantially outweighed the plaintiff’s posting rights.

Sixth Circuit Affirms Summary Judgment for the Employer in Title VII Retaliation Case

After the plaintiff in Crisp v. Scioto Ambulance District __ F.4th __ (6th Cir. July 17, 2026) complained of sexual harassment by a co-worker, a supervisor prevented them from working together and made sure they were not assigned to work together again. Several years later, the plaintiff showed nude images of the co-worker and his wife, which she found on a website, to other employees in the workplace while complaining about the “perverted, predatory” men at the workplace. Following an investigation, the employer terminated the plaintiff’s employment for showing the nude pictures. She filed suit in federal district court claiming retaliation for complaining of sexual harassment, in violation of Title VII. The district court granted summary judgment for the employer and the plaintiff appealed to the Sixth Circuit.

Even though Title VII protects complaints of sexual harassment, the Sixth Circuit held, including telling co-workers about alleged workplace misconduct, “[w]hen an employee engages in both protected and unprotected conduct under Title VII, she cannot use the protected conduct to seek shelter from a firing that is based on her unprotected conduct.” Accordingly, the Sixth Circuit affirmed summary judgment for the employer, finding that the plaintiff was terminated from employment for sharing nude images of a co-worker to other employees while working, which was not protected conduct.

Third Circuit Affirms Summary Judgment for the Employer in ADA Case

Affirming summary judgment for the employer in Hileman v. West Penn Allegheny Health System Inc., __ F.4th __ (3rd Cir. July 20, 2026), the Third Circuit stated that discrimination laws are “shields against discrimination, not get-out-of-discipline-free cards.” When a co-worker reported that the plaintiff, who was a hospital employee, was sleeping on duty in violation of hospital policy and a terminable offense, the plaintiff told her supervisor that she may have shut her eyes to alleviate dry eyes caused by diabetes medication she was taking. This was the first time the plaintiff disclosed to her employer that she had diabetes. Although the plaintiff had been advised about disability accommodation and medical leave when she was previously reprimanded for attendance issues, the plaintiff never asked for accommodation or leave. When she was terminated for misconduct, the plaintiff filed suit in federal district court for disability discrimination, failure to accommodate, and retaliation under the ADA, among other claims. The district court granted summary judgment for the employer and the plaintiff appealed to the Third Circuit. 

On appeal, the Third Circuit emphasized that in an ADA failure to accommodate case, an employee must first show that the employer knew the employee had a medical condition and needed accommodation yet failed to provide it. In this case, the court found there was nothing that would have alerted the employer to a medical condition that needed an accommodation, and although employers have a duty to accommodate known disabilities, “they certainly need not go digging for disabilities without a signal that one exists.” In addition, the Third Circuit held that even if the plaintiff’s statements could qualify as an accommodation request, the employer was nevertheless justified in terminating her employment for misconduct – sleeping on the job. “Except in narrow circumstances, employers may enforce neutral workplace rules even when misconduct stems from a disability,” the Third Circuit concluded.

D.C. Circuit Holds “Successor Bar” Violates NLRA

On remand from the U.S. Supreme Court, in Hospital Menonita de Guayama v. NLRB, __ F.4th __ (D.C. Cir. July 20, 2026), the D.C. Circuit held the “successor bar” set forth in UGL-UNICCO Service Co., 357 NLRB 801 (2011) is inconsistent with the National Labor Relations Act (NLRA). The case arose after a change in ownership of a hospital which refused to bargain with the incumbent union after receiving evidence that a majority of the employees rejected the union as their representative. The NLRB charged the hospital with unfair labor practices. After the D.C. Circuit ruled in favor of the union, the hospital petitioned the U.S. Supreme Court for review. The Supreme Court granted certiorari, vacated the judgment, and remanded the case to the D.C. Circuit for further consideration in light of its decision in Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024), which held that “courts have an independent obligation to interpret statutes and not defer to an agency’s interpretation of the scope of its statutory authority.”

In its review of the case and analysis of the successor bar doctrine, which compels an employer that acquires a business to recognize and bargain with an incumbent union for up to one year, even if the union lacks majority support in fact, the D.C. Circuit found the successor bar violated sections 7 and 9 of NLRA by suspending employees’ right to choose whether and how to collectively bargain and their right to be represented by a union that has majority support. Section 7 provides that employees have the right “to bargain collectively through representatives of their own choosing,” 29 U.S.C. § 157, and section 9 requires that the “exclusive” bargaining representative for each employee unit be “designated or selected” by “the majority of the employees in [the] unit.” Id. § 159. The D.C. Circuit held that “[b]y entrenching incumbent unions, irrespective of whether they enjoy majority support, the successor bar is inconsistent with section 7’s unqualified employee right to freedom of choice and section 9’s requirement of majority rule.”

Fourth Circuit Affirms Summary Judgment for the Employer in ADA and FCA Case¹

After being terminated from employment for “rude, disrespectful, and insubordinate” behavior, the plaintiff in Simmons v. UM Capital Region Health Inc., __ F.4th __ (4th Cir. July 20, 2026) filed suit in federal court alleging that she was terminated from employment due to a neuromuscular disorder in violation of the ADA, and in retaliation for activities protected under the False Claims Act (FCA). The district court granted summary judgment to the employer and the plaintiff appealed to the Ninth Circuit, which affirmed the district court decision.

Regarding her ADA claim, the Fourth Circuit rejected the plaintiff’s allegation that the employer’s reasons for terminating her were a pretext for discrimination, finding that the plaintiff’s inappropriate communications and interactions throughout her employment were well documented, even though she had not previously been disciplined. The court also rejected the plaintiff’s claim that the employer’s failure to follow its progressive discipline policy was evidence that its reason for termination was pretextual. First, the Fourth Circuit stated that the progressive discipline policy was permissive and there was no evidence that the employer applied its progressive discipline policy differently to other employees. Moreover, the court found, prior to her termination, the plaintiff had, in fact, been given ample opportunity to correct her behavior and specific suggestions about how to do so.

As to the FCA claim, the Fourth Circuit found there was no evidence to support the plaintiff’s claim that she was retaliated against for her effort to stop an FCA violation by her employer. The Fourth Circuit agreed with the district court that “any belief [that someone at the employer] . . . would soon report false data would not be objectively reasonable because the data she contends would be falsely reported had not even been collected.” Nor did it find that the plaintiff’s e-mail inquiry to the National Healthcare Safety Network about data collection constituted an effort to stop any potential FCA violation. 

Eighth Affirms Summary Judgment for the Employer in Gender Discrimination and Retaliation Suit

Joseph v. Thomas-Grace Const. Inc., __ F.4th __ (8th Cir. July 24, 2026) involved claims of gender discrimination and retaliation under Title VII by a female employee who resigned after complaining about her supervisors who she said were critical and demeaning and didn’t listen to her ideas. The federal district court granted summary judgment for the employer and the plaintiff appealed to the Eighth Circuit.

The Eighth Circuit agreed with the district court that the plaintiff failed to provide any evidence of gender discrimination, other than her own opinion. Most notably, none of the plaintiff’s internal complaints mentioned sex discrimination or could be construed as alleging sex discrimination. Moreover, the court found, there was no evidence that the plaintiff was treated differently than similarly situated males. The Eighth Circuit also rejected the plaintiff’s claim that after her complaints she was offered a transfer to another worksite finding that the employer had numerous legitimate reasons for offering to transfer the plaintiff, including the fact that she had conflicts with her supervisors.

Eighth Circuit Affirms Summary Judgment for the Employer on FMLA Claims

After being terminated from employment while on FMLA leave, the plaintiff in Knight v. Cambria Co. LLC, __ F.4th __ (8th Cir. July 28, 2026), sued his employer for FMLA violations. In response, the employer asserted that the plaintiff had been terminated in a reduction in force and was selected because he had a shorter period of employment than other employees. The federal district court granted summary judgment to the employer and the plaintiff appealed to the Eighth Circuit, which affirmed summary judgment.

On appeal, the plaintiff failed to show that the employer’s legitimate non-discriminatory reason for his employment termination was pretextual. Among other things, the Eighth Circuit rejected the plaintiff’s argument that the employer’s failure to document why it terminated him indicated that his termination was not part of a legitimate reduction in force, stating that the plaintiff failed to show why the lack of this documentation reflected unlawful discrimination. The court also found the temporal proximity between the plaintiff’s FMLA leave and his termination was not indicative of discrimination. Quoting a prior Eighth Circuit decision, the court stated, “a case built on temporal proximity ‘is undermined where the allegedly retaliatory motive coincides temporally with the non-retaliatory motive.’” In this case the court found that at the time of the plaintiff’s FMLA leave the employer was experiencing a production slowdown and managers were speaking about reducing headcount as a result.