Littler Lightbulb – March 2026 Employment Appellate Roundup

Fourth Circuit Affirms Dismissal of Plaintiffs Claims Based on Joint Employer Doctrine

The plaintiffs in Hoffman v. Inova Health Care Services, 169 F.4th 207 (4th Cir., Mar. 3, 2026)¹ were nurse anesthetists employed by a medical group that provided anesthesia services to facilities operated by the defendant health care services provider. After the plaintiffs refused to be vaccinated against COVID-19, the hospitals where they worked suspended their clinical privileges, and two months later the medical group that employed them terminated their employment. The plaintiffs sued the defendant health care services provider alleging violation of Title VII, the ADA, and the Virginia Human Rights Act (VHRA). The district court dismissed their claims on the grounds that defendant health care services provider was not the plaintiffs’ employer.

The plaintiffs appealed to the U.S. Court of Appeals for the Fourth Circuit, which considered whether in this case “multiple entities [could] simultaneously be considered” the plaintiffs’ employer under the “joint employment doctrine.” The court applied the nine-factor test from Butler v. Drive Automotive Industries of America, Inc., 793 F.3d 404 (4th Cir. 2015) used to determine “which entities actually exercise control over an employee…: (1) authority to hire and fire the individual; (2) day-to-day supervision of the individual, including employee discipline; (3) whether the putative employer furnishes the equipment used and the place of work; (4) possession of and responsibility over the individual’s employment records, including payroll, insurance, and taxes; (5) the length of time during which the individual has worked for the putative employer; (6) whether the putative employer provides the individual with formal or informal training; (7) whether the individual’s duties are akin to a regular employee’s duties; (8) whether the individual is assigned solely to the putative employer; and (9) whether the individual and putative employer intended to enter into an employment relationship.” 

The Fourth Circuit found the plaintiffs failed to satisfy any of these factors. Neither had plausibly alleged that the defendant health care services provider had the authority to hire or fire them. As to day-to-day supervision of their work, the plaintiffs offered only conclusory allegations without additional supporting facts, even after being granted the opportunity to amend their complaints. Although the hospitals where they worked had general authority over the administration of the provision of medical services, the Fourth Circuit stated that “a measure of control over ‘medical services rendered at hospitals’ is not ‘a reliable indicator’ of an employer-employee relationship, because a ‘hospital must assert a degree of . . . control over every [medical provider’s] work—whether an employee, an independent contractor, or a [provider] merely with privileges—to discharge its own professional responsibility to patients.” 

Regarding other elements of control, the court similarly found that in a hospital setting the use of hospital equipment and facilities is standard practice and not an indicator of joint employment. The training allegedly provided involved such things as harassment and patient privacy that was generally required by law and provided to all individuals treating patients, regardless of employment status. Significantly, although the plaintiffs alleged they performed generalized patient care tasks performed by staff nurses, such as “placing an IV line,” there was no indication that they performed these tasks outside of their roles as anesthesiology service providers. Thus, applying all the Butler factors, the Fourth Circuit affirmed the district court’s dismissal of the plaintiff’s claims.

Tenth Circuit Affirms Summary Judgment for the Employer in Age Discrimination Suit

The Tenth Circuit affirmed summary judgment for the employer in Sousa v. Chipotle Services, LLC, 167 F.4th 1286(10th Cir. Mar. 2, 2026), in which the plaintiff alleged the employer’s reasons for termination – pest and cleanliness issues at the restaurants he was responsible for overseeing – were a pretext for age discrimination. 

In support of his claim, the plaintiff alleged, among other things, that two younger employees who were supervised by the same person who supervised him and decided to terminate his employment were not terminated for the pest or cleanliness problems at their restaurants. He argued that once he made this allegation, it was for a jury, not the court, to determine whether he was similarly situated to these younger employees. Rejecting this argument the Tenth Circuit stated that a court evaluating a motion for summary judgment “must determine whether [a] ‘plaintiff has adduced enough evidence to support a finding that the other employee[s] and plaintiff were sufficiently similarly situated to support an inference of discrimination.’” In this case, the court found the plaintiff failed to present sufficient evidence that he was treated differently than similarly situated employees.

Next, the plaintiff argued that the termination of another employee who, like the plaintiff, was terminated for pest and cleanliness problems in her stores and was older than the supervisor who terminated them, was additional evidence of age discrimination. Again, the Tenth Circuit held that the plaintiff failed to show that the conditions in this employee’s store were comparable to conditions in the younger employees’ stores.

Considering the totality of the circumstances, the Tenth Circuit concluded there was insufficient evidence that the plaintiff was terminated based on his age rather than due to undisputed pest and cleanliness problems at his stores.

Third Circuit Affirms Summary Judgment for Companies in Union Effort to Collect Withdrawal Liability 

RTI Restoration Techs., Inc. v. Int'l Painters & Allied Trades Indus. Pension Fund, 169 F.4th 140 (3d Cir. Mar. 3, 2026) involved a declaratory judgment action by two companies in response to efforts by a union pension fund to collect withdrawal liability under the Multiemployer Pension Plan Amendments Act of 1980 (MPPAA). The district court granted summary judgment to the companies on the grounds that the fund, which sought withdrawal liability eight years after the original employer went out of business, failed to notify the companies of their withdrawal liability “[a]s soon as practicable” as required under the MPPAA.

The fund appealed to the Third Circuit arguing that the companies waived their defense to withdrawal liability by failing to pursue arbitration when they were notified of the fund’s demand for withdrawal liability. While acknowledging that the MPPAA “expresses a ‘clear preference for self-regulation through arbitration,’” the Third Circuit held that nothing in the text of the MPPAA or the Supreme Court’s decision in Bay Area Laundry & Dry Cleaning Pension Tr. Fund v. Ferbar Corp., 522 U.S. 192, 196 (1997) implies that the “as soon as practicable” requirement can be raised only as a defense at arbitration.

The court distinguished decisions from other circuits holding that the “as soon as practicable” defense to withdrawal liability must be raised in arbitration because, unlike those cases, in this case the companies challenged their status as the employer. The companies had never entered into a collective bargaining agreement with the union and never agreed to make contributions to the pension fund. Their only connection with the original employer was that an officer of the original employer, who died three years before the union demanded withdrawal liability, was “at various times” a business partner, an employee, and part-owner of the companies.

Assessing all these factors, the Third Circuit affirmed summary judgment for the companies.

Sixth Circuit Denies NLRB Petition for Enforcement of a Bargaining Order

In another union-related case, Brown-Forman Corp. v. National Labor Relations Board, 169 F.4th 646 (6th Cir. Mar. 6, 2026), the Sixth Circuit addressed a company’s challenge to the NLRB’s issuance of a bargaining order following an Administrative Law Judge’s finding that the company committed unfair labor practices and interfered with its employees’ efforts to unionize.

Rather than adhering to the U.S. Supreme Court’s decision in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), which held that after determining that the initial election should be set aside, the Board should order a new election when a fair one is possible, the Board went directly to issuance of a bargaining order. The Sixth Circuit denied the Board’s petition for enforcement of the bargaining order, stating that “[t]he Board is empowered to issue a bargaining order, but only if other remedies are insufficient to protect employees’ choice to unionize. Bargaining orders are considered a last resort …because ‘secret elections are generally the most satisfactory—indeed the preferred—method of ascertaining whether a union has majority support.’” To issue a bargaining order, the Board first needs to make a factual finding “a fair election cannot [occur] under all the circumstances,” which it failed to do in this case, the court stated. 

The Sixth Circuit also rejected the Board’s justification for the issuance of the bargaining order: to “deter future, hypothetical violations of the Act.” Citing prior Sixth Circuit and U.S. Supreme Court precedent the court stated: “The Board does not have broad authority to impose sanctions solely for the purpose of deterring future violations of the Act.” Accordingly, the court held, in issuing the bargaining order the Board exceeded its authority.

First Circuit Affirms Summary Judgment for Employer in Age Discrimination and Constructive Discharge Case Based on a Performance Improvement Plan 

Ten months after being placed on a performance improvement plan (PIP) that she successfully completed, the plaintiff in Walsh v. HNTB Corporation,169 F.4th 330 (1st Cir. Mar. 13, 2026), resigned and sued her employer for age discrimination and constructive discharge based on the PIP, a cessation in pay raises, and an alleged decrease in job duties. The district court granted summary judgment for the employer on the ground that the plaintiff failed to present sufficient evidence of an adverse employment action, and the plaintiff appealed to the First Circuit.

In assessing the plaintiff’s age discrimination claims, the First Circuit considered the Supreme Court’s decision in Muldrow v. City of St. Louis, 601 U.S. 346 (2024), issued after the district court’s summary judgment ruling, which held that employees no longer needed to show a material change in their work conditions to establish an adverse employment action. Under Muldrow “an adverse action is any employment event, regardless of its severity, in which an employer's conduct leaves an employee (1) ‘worse off’ (2) with respect to the ‘terms [or] conditions’ of their employment.” Applying this standard, the First Circuit stated that determining whether a PIP constitutes an adverse employment action requires a fact-intensive inquiry. Examining the facts, the court found that in this case the PIP did not constitute an adverse employment action. It did not assign the plaintiff new duties, alter her title or compensation, limit her ability to seek other opportunities within the company, or alter her employment conditions. In fact, the court found, the PIP “appears to be nothing more than ‘documented counseling.’” 

As to the plaintiff’s claim that she stopped receiving pay increases during her final three years of employment, the court found that this was because she had reached the pay ceiling for her job grade. The First Circuit also rejected plaintiff’s claim that she was stripped of job duties. Although loss of job duties can constitute an adverse action under Muldrow, the court stated that the plaintiff in this case failed to identify job duties she lost. Lastly, the court addressed plaintiff’s constructive discharge claim based on comments by the plaintiff’s supervisor, including stating that she could be “replaced with younger, cheaper people.” Citing prior First Circuit precedent the court stated that “employer comments suggesting possible age bias are not themselves grounds for quitting,” and that none of her manager’s comments or actions created an objectively intolerable workplace that would support a claim of constructive discharge.

Eleventh Affirms Summary Judgment for Employer in Race Discrimination and Retaliation Case 

The plaintiff in Johnson v. Miami-Dade Cnty., 169 F.4th 1301 (11th Cir. Mar 19, 2026), a Black police officer who was terminated after receiving five disciplinary actions in two and a half years, claimed he was terminated based on his race in violation of Title VII. The case was the plaintiff’s second appeal to the Eleventh Circuit following issuance of Lewis v. City of Union City, 918 F.3d 1213 (11th Cir. 2019), in which the court clarified the standard for evaluating whether a plaintiff’s proposed comparators satisfied the “similarly situated” element of the prima facie case for discrimination. Applying Lewis, the Eleventh Circuit found the alleged comparators had materially different disciplinary records and therefore were not “similarly situated in all material respects.” Examining the full record, the court found that the plaintiff failed to present any evidence of discriminatory intent. 

The plaintiff also claimed he was terminated in retaliation for filing multiple EEOC complaints. The Eleventh Circuit also rejected this claim because, among other things, it found that the two-month period, which was the shortest time between the filing of an EEOC complaint and disciplinary action against the plaintiff, was too long to establish retaliation.

Based on its review of the law and the facts, the Eleventh Circuit again affirmed summary judgment for the employer on all claims.

Ninth Circuit Reverses District Court’s Denial of Employer’s Motion to Compel Arbitration 

In Sandler v. Modernizing Med., Inc., 170 F.4th 1209 (9th Cir. Mar. 19, 2026), the Ninth Circuit reversed the district court’s denial of the employer’s motion to compel arbitration of the issue of the validity and enforceability of an employment contract, including its arbitration provision. Assessing the district court’s decision, the Ninth Circuit concluded that the district court erroneously applied state law to determine the question of arbitrability. The court stated that although state law principles usually govern contract formation, the U.S. Supreme Court held that the decision about arbitrability is controlled by federal law.

In this case, the employment contract specified that any employment-related disputes would be subject to arbitration under the Federal Arbitration Act (FAA). Moreover, under the FAA, the court stated, “[w]ho gets to decide the arbitration agreement’s validity—an arbitrator or a court—depends on whether there is ‘clear and unmistakable’ evidence that the parties agreed to delegate the validity question to the arbitrator.” Examining the contract further, the Ninth Circuit concluded the employment agreement’s incorporation of the Judicial Arbitration and Mediation Services, Inc. (JAMS) rules delegating the question of arbitrability to the arbitrator, reflected clear and unmistakable intent that the parties agreed to arbitrate arbitrability.

Eleventh Circuit Affirms Judgment for the City in Title VII Reverse Race Discrimination and Retaliation Claims 

Joyner v. City of Atlanta, 170 F.4th 1320 (11th Cir. Mar. 25, 2026), involved, among other things, Title VII claims by a white police officer that he was discriminated against because of his race and retaliated against for complaining of race discrimination. The district court granted summary judgment to the city on the plaintiff’s retaliation claim but denied summary judgment to the city on his Title VII race discrimination claim, which proceeded to trial. At the conclusion of the trial, the jury returned a verdict in favor of the city. The plaintiff appealed both decisions to the Eleventh Circuit.

The Eleventh Circuit began its analysis by assessing the plaintiff’s claim that he was not promoted to police captain in retaliation for a complaint about race discrimination he made nearly seven years earlier. Following a detailed evaluation of the facts, the court concluded that the decisionmaker for the position was unaware of the plaintiff’s complaint, which was sufficient to defeat the plaintiff’s Title VII retaliation claim. The court also rejected the plaintiff’s claim that he suffered a long-simmering pattern of resentment following his complaint. In fact, during that time the plaintiff was given an opportunity to lead an elite unit but had multiple performance issues. 

After the jury’s verdict in favor of the city on the plaintiff’s Title VII race discrimination claim, the plaintiff filed a motion for judgment as a matter of law with the district court based on the police chief’s testimony that he “reserved a certain number of seats for particular races, to the exclusion of all other races.” The Eleventh Circuit agreed with the district court’s denial of the motion because, it held, the plaintiff failed to establish the necessary elements of a Title VII claim: that he suffered an adverse employment action, and that race was a motivating factor in that adverse employment action. Examining the facts, the Eleventh Circuit found that the plaintiff was not promoted to captain because he was not qualified for the position due to numerous performance issues.

Based on these factors, the Eleventh Circuit affirmed judgment for the city on both the Title VII retaliation and discrimination claims.