Littler Lightbulb –May Employment Appellate Roundup

Fourth Circuit Dismisses White Employee’s Race, Gender, and Retaliation Claims

Barnhill v. Pamela Bondi, __ F.4th __ (4th Cir. May 15, 2025) involved claims by a white Department of Justice Drug Enforcement Administration (DEA) supervisor that she was discriminated against because of her race and retaliated against for filing a complaint with the DEA’s EEO office. Following the case’s dismissal by the district court, the plaintiff appealed to the Fourth Circuit. The plaintiff’s claims were based on a management review and five-day suspension following investigation of complaints about her conduct by a subordinate; a temporary duty reassignment to another location; and promotion denials. The Fourth Circuit agreed with the district court that the plaintiff failed to plausibly allege that any of the adverse actions she described were because of her race or gender and dismissed these claims. 

The court also concluded that the plaintiff failed to establish a causal connection between her protected activity – her EEO complaint – and her promotion denials and suspension, finding there was a lack of temporal proximity between the protected activity and the adverse actions she complained of. “While there is not a bright-line rule instructing when temporal proximity is sufficient to establish causation, without other evidence of causation, the gap between the protected activity and the adverse employment action can generally be no longer than two months,” the court held. In this case, the plaintiff’s first promotion denial did not occur until almost six months after she initiated her EEO proceeding, and her five-day suspension was not imposed until almost three years later. Based on these facts, and the lack of any other evidence of discriminatory animus, the Fourth Circuit affirmed the district court’s decision. 

Ninth Circuit Affirms Judgment for Employer in FRSA Retaliation Suit

The plaintiff in Parker v. BNSF Railway Co., __ F.4th __ (9th Cir. May 15, 2025), a railway conductor, was terminated from employment for working inefficiently; failing to sign his timesheet; adding time to his timesheet that he did not work; and refusing two separate instructions by a supervisor to leave the premises, instead staying on site and causing a heated argument with a coworker. The plaintiff filed suit alleging that he engaged in activity protected by the Federal Railroad Safety Act (FRSA) by testing the air brakes on rail cars, and that he was terminated from employment in retaliation for engaging in protected activity. After a bench trial, the district court concluded that the railway company met its burden of proving that it would have fired the plaintiff anyway, regardless of whether he had engaged in protected activity. The Ninth Circuit affirmed the district court’s decision.

In reaching its conclusion, the Ninth Circuit noted that in actions under the FRSA, the plaintiff has the initial burden to prove, by a preponderance of the evidence, that engaging in protected activity was only “a contributing factor in the unfavorable personnel action alleged in the complaint.” To defeat liability, the employer must prove by the higher standard of clear and convincing evidence that it “would have taken the same unfavorable personnel action in the absence of [the protected] behavior.” The railway company in this case met this higher standard, the court found. 

The air-brake tests, which were routine, accounted for only 20-40 minutes of the crew’s five-and-a-half hours of work, and no one told the crew to stop the tests. Stating that “[c]omparator evidence can be useful in assessing whether the employer would have fired the plaintiff anyway,” the court noted that other crew members who engaged in the air-brake tests were not terminated from employment. Moreover, the court held, the air-brake tests had nothing at all to do with the plaintiff’s dishonesty and insubordination, either of which were independent grounds for dismissal. 

Fifth Circuit Vacates Order Requiring Broadcasters to Submit Employee Gender, Race, and Ethnicity Data

In National Religious Broadcasters v. FCC, __ F.4th __ (5th Cir. May 19, 2025), a group of radio and television broadcasters and associations challenged a Federal Communications Commission (FCC) order requiring most television and radio broadcasters to compile and disclose employment demographic data to the FCC, which would then post the data on its website on a broadcaster-identifiable basis. The Fifth Circuit rejected the FCC’s claim of statutory authority to collect and publish the data based on its mandate to “act in the ‘public interest’ under the Communications Act of 1934.” Stating that public interest authority is not “unlimited,” the court held that the public interest must be interpreted based on a distinct grant of authority from Congress. Reviewing all the statutes cited by the FCC, the Fifth Circuit concluded that none of them, including the nondiscrimination provisions, provided the statutory authority to require broadcasters to disclose the information the FCC sought.

First Circuit Finds Insufficient Basis to Hold U.S. Parent of a Hong Kong Subsidiary Liable for Wrongful Termination 

The plaintiff in Keane v. Expeditors International of Washington Inc., __ F.4th __ (1st Cir. May 27, 2025),¹ who was employed by a Hong Kong subsidiary of a U.S. company, was terminated from employment for sexual harassment. He filed suit against both the Hong Kong and U.S. companies alleging, among other things, breach of contract and discrimination in violation of Title VII. The district court dismissed the suit for lack of personal jurisdiction and the doctrine of forum non conveniens, and the plaintiff appealed.  

The First Circuit affirmed dismissal of the claims against the Hong Kong company for lack of personal jurisdiction. As to the claims against the U.S. company, the court found the plaintiff’s complaint failed to contain sufficient facts to find the parent corporation “directed and controlled the subsidiary, and used it for an improper purpose.” The Hong Kong company offered evidence that it “maintains its own ledgers and accounting books; prepares its own business plans, payroll, budget and financial statements; administers and controls its own health plan and related benefits; and controls the decisions regarding hiring and firing of its employees.” Accordingly, the First Circuit affirmed dismissal of the claims against the U.S. company as well.

Ninth Circuit Affirms Dismissal of ERISA Breach of Fiduciary Duty Class Action
The Ninth Circuit affirmed dismissal of a putative class action in Anderson v. Intel Corp. Investment Policy Committee, __ F.4th __ (9th Cir. May 22, 2025) alleging that the trustees of a corporation’s retirement funds breached their fiduciary duty of prudence and loyalty under ERISA, finding that the plaintiff had not plausibly alleged a breach of either duty. ERISA “requires plan trustees to act with the ‘care, skill, prudence, and diligence under the circumstances then prevailing,’” the court stated. Because prudence is evaluated “prospectively, based on the methods the fiduciaries employed, rather than retrospectively, based on the results they achieved,” the court held, “it is not enough for a plaintiff simply to allege that the fiduciaries could have obtained better results – whether higher returns, lower risks, or reduced costs – by choosing different investments. Instead, a plaintiff must provide ‘some further factual enhancement.’” 

More specifically, the court stated, to establish a breach of fiduciary duty, ERISA implicitly requires a plaintiff to provide “a relevant comparator with similar objectives – not just a better-performing plan or investment.” Assessing the plaintiff’s claims, the Ninth Circuit concluded that the district court correctly determined that the plaintiff failed to plausibly allege that the company’s retirement funds underperformed other funds with comparable aims. 

Fifth Circuit Finds NLRB’s Order that a Company Violated the NLRA During a Union Organizing Campaign Lacked Substantial Evidence

In NLRB v. AllService Plumbing & Maintenance, Inc., __ F.4th __ (5th Cir. May 23, 2025), the Fifth Circuit denied enforcement of an NLRB order holding that the defendant company violated the NLRA during a union organizing campaign because of 1) the activities of an employee who acted on behalf of the employer in opposing the union, and 2) the layoffs of three employees prior to the election who were allegedly involved with union activities. As to the anti-union activities of the employee that the NLRB attributed to the company, the Fifth Circuit stated that “an agency relationship ‘must be established with regard to the specific conduct that is alleged to be unlawful,’” which the NLRB failed to do. In fact, the Board found that the employee “had no ability to hire, fire, discipline, set pay, speak on behalf of the company, set company policy, or generally do anything other than ‘assign work to employees.’” Thus, the court found the Board’s holding that the employee acted as an agent for management in acting in opposition to the union was reversible error.

Next, as to the pre-election layoffs, the Fifth Circuit found there was no substantial evidence that the layoffs were related to protected union activity. On the contrary, the court found, there was substantial evidence that the manager who decided on the layoffs did not have any anti-union animus, which the Board did not consider. “[The] Board ‘bears the burden of showing that the employer acted out of antiunion animus. This means the Board must do more than simply support an inference that protected conduct is a motivating factor in the employer's decision,” the court held.

Fifth Circuit Assesses Qualified Immunity in a First Amendment Retaliation Claim

The plaintiff in Wetherbe v. Texas Tech University System, __ F.4th __ (5th Cir. May 20, 2025) filed suit against a university and the dean of its business school under 42 U.S.C. § 1983, claiming he was retaliated against for his anti-tenure views and publications in violation of his First Amendment rights. The district court denied the defendants’ Rule 12(c) motion for judgment on the pleadings and the defendants appealed to the Fifth Circuit. The issue on appeal was whether qualified immunity barred the plaintiff’s claims. The university dean is entitled to qualified immunity, the Fifth Circuit held, unless the plaintiff can establish he suffered an adverse employment decision and that his speech involved a matter of public concern. Assessing the facts and prior case law, the court found that tenure was not a matter of public concern and reversed the district court’s decision. 

Ninth Circuit Addresses Qualified Immunity in a Plaintiff’s First Amendment Claim Based on the Speech of his Spouse

In another qualified immunity case, DeFrancesco v. Robbins, 136 F.4th 933 (9th Cir. 2025) the Ninth Circuit affirmed dismissal of a lawsuit against university officers alleging that the plaintiff was harassed and then fired from the university in violation of his First Amendment right to be free from retaliation for his spouse’s allegedly protected whistleblowing speech. In dismissing the case, the district court held that the plaintiff had not demonstrated that he had a clearly established First Amendment associational right to be free from retaliation for the protected speech of his spouse, and that the defendants were entitled to qualified immunity. 

Assessing qualified immunity, the Ninth Circuit stated, courts consider whether the alleged constitutional right was “clearly established” at the time of the alleged misconduct. While acknowledging that some circuits have recognized that the First Amendment prohibits retaliation against a public employee for a family member’s conduct or speech, the court nevertheless concluded that given “the doctrinal confusion about its source and content…at the time of his firing, it was not ‘settled law’ that retaliation against a public employee for his relative’s speech runs afoul of the First Amendment.” Thus, the court held, the defendants were entitled to qualified immunity.