Littler Lightbulb – November 2025 Employment Appellate Roundup

Eighth Circuit Vacates NLRB Ruling and Allows Company Prohibition of BLM Logo on Company Uniform

Home Depot v. NLRB, ___ F.4th ___ (8th Cir. Nov. 6, 2025), involved an appeal of a National Labor Relations Board (NLRB) ruling that found Home Depot violated the National Labor Relations Act (NLRA) when it terminated an employee that refused to remove Black Lives Matter (BLM) lettering from his company apron. Home Depot appealed, asserting that company policy prohibited the promotion of causes or political messages on its aprons, and that the BLM logo created a safety hazard after several months of protests, counter-protests, and civil unrest following George Floyd’s murder, less than seven miles from the workplace. These special circumstances, the employer argued, justified the requirement that the employee remove the logo from his apron.

The Eighth Circuit agreed. In response to the NLRB’s assertion that the employer allowed apron lettering for “causes or political messages” such as LGBTQ-pride, the Eight Circuit stated that “it is for the employer, not the Board, to determine whether personalization will be allowed because it is apolitical, appropriately demonstrates the company’s values, or is related to the workplace.” Moreover, citing prior NLRB decisions, the court noted that the Board “has long recognized that where legitimate employer rights and interests warrant, the fact that a work rule encompasses Section 7 activity within the scope of its prohibition does not make the rule unlawful to maintain.” In this fact-specific case, the Eighth Circuit vacated the NLRB ruling, concluding that assuming the employee engaged in Section 7 activity without deciding the issue, the employer demonstrated sufficient special circumstances to outweigh its employee’s Section 7 interests and its actions prohibiting the BLM insignia on the apron were lawful under the circumstances. 

Tenth Circuit Affirms Summary Judgment for Employer in Gender Discrimination Case

The plaintiff in Russell v. Driscoll, ___ F.4th ___ (10th Cir. Nov. 5, 2025), who was acting chief of his division at an Army community hospital, brought a Title VII sex discrimination claim against his employer alleging his female supervisor created a hostile work environment, treating men and women differently. The plaintiff claimed his supervisor held a gender-segregated meeting, assigned men and women different books to read, commented on the relative lack of women in supervisory positions, and allowed women to meet with her without an appointment but usually required men to make an appointment. More specifically, the plaintiff claimed that the division chief publicly criticized some of his decisions while he was acting chief, required him to change his e-mail signature from “Chief of Logistics Readiness” to “Readiness Manager,” and removed him from a leadership e-mail distribution list, among other things. 

The district court granted summary judgment to the employer on the grounds that the alleged conduct was not sufficiently severe or pervasive to meet the legal standard for a hostile work environment. On appeal to the Tenth Circuit the plaintiff argued that the U.S. Supreme Court’s decision in Muldrow v. City of St. Louis, 601 U.S. 346 (2024), no longer required that Title VII hostile workplace conditions be “sufficiently severe or pervasive to alter the conditions of the victim’s employment.” The Tenth Circuit rejected this argument, holding that Muldrow applied only to discrete discriminatory employment acts, not to hostile work environment claims. Citing prior Supreme Court precedent, the court stated that discrete discriminatory acts differed from hostile environment claims, which involve “a series of smaller actions – including ones that would not violate Title VII if analyzed discretely – [that] add up to create an environment that is itself a deprivation of the terms, conditions, or privileges of employment.”  Thus, the Tenth Circuit held inquiry into the severity or pervasiveness of the conduct is integral to determining whether the conduct at issue created a hostile work environment in violation of Title VII.  

Sixth Circuit Affirms Summary Judgment for Employer in Disability-Related Hostile Environment and ADA Accommodation Case 

The employer is a nonprofit organization that provides educational and family services to at-risk youth. After a pipe burst at the workplace, the plaintiff in Kellar v. Yunion, Inc., ___ F.4th ___ (6th Cir. Oct. 31, 2025) sought an accommodation to work remotely, submitting a doctor’s note stating that she had evidence of allergic rhinitis, vocal cord dysfunction, and possible allergic asthma, that mold is one of her triggers, and she should not have mold exposure as it may worsen her symptoms. While the employee acknowledged that she would be unable to perform her onsite case file management duties, the employer granted the employee a temporary accommodation to work remotely part time. However, after about three weeks due to on-site case file management requirements, the employer—explaining the building was safe—required she return to full-time, in-person work. 

The plaintiff filed suit claiming disability-related hostile work environment, failure to accommodate, retaliation, and wrongful termination in violation of the ADA. The district court granted summary judgment for the employer on all claims and the plaintiff appealed to the Sixth Circuit. As to the plaintiff’s failure to accommodate claim, the Sixth Circuit found that the plaintiff could not manage case files, which was an essential job function, while working at home for an extended time. The court also found that the plaintiff’s claims that her employer denied her mileage reimbursement request, failed to timely provide paystubs, reduced her hours and rate of pay, revoked her benefits and paid holidays, and sent her a text insinuating she would be fired were insufficient to establish a disability-related hostile work environment. To establish a hostile work environment claim, the Sixth Circuit stated, the plaintiff must provide evidence that the work environment was “objectively intimidating, hostile, or offensive,” which the plaintiff failed to do. Similarly, the court found the plaintiff failed to provide evidence that challenged the legitimate, nondiscriminatory reasons for any of the employer’s actions, including termination from employment. Accordingly, the Sixth Circuit affirmed summary judgment for the employer.

Sixth Circuit Reverses Jury and Holds Section 504 of the Rehabilitation Act Does Not Cover Retaliation

In a Sixth Circuit case of first impression, Smith v. Michigan Department of Corrections, ___ F.4th ___ (6th Cir. Nov. 21, 2025), the court considered whether § 504 of the Rehabilitation Act covers private causes of action for retaliation. The case involved a state corrections officer who sued his employer under § 504 of the Rehabilitation Act for failure to provide reasonable accommodation for a hip injury and retaliation for challenging the denial of his accommodation request. The district court granted summary judgment on the failure-to-accommodate claim, but the retaliation claim proceeded to trial. Following trial, in which the jury found in favor of the employer, the plaintiff appealed. 

As to the retaliation claim, the Sixth Circuit noted that the Supreme Court has never held that the Rehabilitation Act creates a private right of action for retaliation, and that the Sixth Circuit and other circuit courts “passively accepted the existence of a retaliation cause of action” under the Rehabilitation Act, without analysis. Stating that “[t]he time has come for us to address this long accepted, but never actually proven, assumption,” the Sixth Circuit began by pointing out that unlike the ADA, Title VII, and the ADEA, the Rehabilitation Act does not contain an express anti-retaliation provision. In addition, the court concluded, although the Rehabilitation Act applies “standards” from the ADA in assessing liability, “standards” “guide how claims are adjudicated, not whether a cause of action exists in the first place.” Finally, the court rejected the plaintiff’s argument that 29 C.F.R. § 33.13, implementing § 504 of the Rehabilitation Act, created a cause of action for retaliation, holding that “an agency regulation cannot create a private right of action where the statute itself does not.” Ultimately, on first impression the Sixth Circuit held that § 504 of the Rehabilitation Act does not provide a private right of action for retaliation.

As to the plaintiff’s failure to accommodate claim, the court affirmed summary judgment for the employer, finding that the plaintiff’s requested accommodation, permanent reassignment to another funded position, was not reasonable as there were no such positions available.

Second Circuit Affirms Summary Judgment for the Employer in FMLA Suit

The plaintiff in Haran v. Orange Business Services Inc., ___ F.4th ___ (2nd Cir. Nov. 25, 2025), claimed her employer violated the FMLA and retaliated against her when it terminated her employment based on performance issues, after she took paid time off to care for ill family members. The district court granted summary judgment for the employer, and the plaintiff appealed to the Second Circuit.

The plaintiff argued that, although her employer granted her requested leave, it discouraged her from taking additional leave by unduly scrutinizing and criticizing her job performance after she requested leave. Citing prior Second Circuit decisions, the court stated, “[c]riticizing, even berating an employee’s substantive job performance is not enough to assert a claim for [FMLA] interference.” The court also rejected the plaintiff’s claim that her employer interfered with her rights by failing to comply with the FMLA’s notice requirements. The court found the employee took the time off she requested without interference, and therefore any failure to provide notice of her FMLA rights could not serve as a basis for an FMLA interference claim.

As to the plaintiff’s retaliation claims, the Second Circuit rejected the plaintiff’s claims that the reasons for her termination were pretextual. In fact, the court found the employer raised concerns about the plaintiff’s performance even before she took leave, terminated her after several of the largest accounts she managed decided to stop using employer’s services, and its reasons for her termination were unrelated to her leave.

Fifth Circuit Affirms Summary Judgment for University in Free Speech and First Amendment Retaliation Claim

In Lowery v. Mills, ___ F.4th ___ (5th Cir. Oct. 31, 2025), the Fifth Circuit assessed the standard to be applied in free speech and retaliation claims under the First Amendment. The plaintiff, a university professor who posted criticism of the university’s allegedly “left-wing” and other policies, filed suit under 42 U.S.C. § 1983 alleging that university officials chilled his free speech and retaliated against him by threatening his job security, compensation, and affiliation with a university research center, and requesting that his speech be placed under police surveillance. As a result, he claimed he was forced to self-censor his speech. The district court dismissed the professor’s claims and granted summary judgment for the university, finding that the plaintiff had not suffered an adverse employment action and therefore he had not properly alleged a First Amendment violation on either claim. 

On appeal, the Fifth Circuit agreed. After finding the same standards govern both free speech and retaliation claims, the appellate court applied prior Fifth Circuit precedent stating that “[a]dverse employment actions are discharges, demotions, refusals to hire, refusals to promote, and reprimands,” and, in the education context, “decisions concerning teaching assignments, pay increases, administrative matters, and departmental procedures . . . do not rise to the level of a constitutional deprivation.” The court rejected the plaintiff’s assertion that the Supreme Court’s decision in Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) did not require the plaintiff allege an adverse employment action by the university. Among other things, the Fifth Circuit held Burlington applied only to claims under Title VII, not First Amendment claims like those in this case. Moreover, the court stated a more recent Supreme Court decision held that “a plaintiff pursuing a First Amendment retaliation claim must show, among other things, that the government took an ‘adverse action’ in response to his speech that ‘would not have been taken absent the retaliatory motive.’” Houston Community College System v. Wilson, 595 U.S. 468, 477 (2022).

Ninth Circuit Addresses Class Action Wage Claims and Establishes Standard for Recovery of Penalty Wages 

Gessele et al. v. Jack in the Box Inc., ___ F.4th ___ (9th Cir. Nov. 25, 2025) involved class action claims that the employer over-deducted its employees’ wages for the state Workers’ Benefit Fund (WBF), did not pay employees for interrupted meal periods, and deducted employees’ pay for required non-slip shoes. At trial, the jury found the employer over-deducted wages for the WBF and awarded employees $5,307,589.60 in penalty wages. Following post-trial motions, the district court entered judgment as a matter of law for the employer on the unpaid meal break claims and granted summary judgment for the employer on the shoe deduction claims.

On appeal, the Ninth Circuit reversed in part and affirmed in part the district court’s judgment. Specifically, the Ninth Circuit reversed the district court’s judgment on the WBF and shoe claims and remanded, and affirmed the district court’s judgment on the unpaid break claims. In so doing, the Ninth Circuit found the district court erred in finding, at summary judgment, that over-deductions were willful such that the employer owed penalty wages, and remanded for a trial on willfulness. Specifically, the Ninth Circuit found that plaintiffs must prove willfulness to recover penalty wages for over-deductions, finding that the plaintiffs in this case failed to do so. While, among other things, the court found it was not unreasonable for the employer to rely on its payroll software system to calculate the WBF deductions, it nevertheless remanded the case so a jury could decide the willfulness issue. On remand, the court stated, the district court must consider the penalty awarded in light of the actual damages incurred, which the district court did not do in this case where the penalty was nearly 400 times greater than the injury.

As to the meal break pay class claim, the court held that “before June 1, 2010, Oregon law did not require employers to pay employees for a 30-minute meal period when employees were called back to work before 30 minutes,” and none of the named plaintiffs were employed prior to that time.

Finally, as to the plaintiffs’ shoe-deduction claim, the Ninth Circuit stated that under Oregon law the employer “could only deduct the cost of an employee’s shoes from their wages if ‘[t]he deductions [we]re . . . for the employee’s benefit[.]’” Noting that the employer got a $2 per shoe kickback from the required shoe supplier, the court found that a reasonable jury could conclude that the plaintiffs did not benefit from the shoes, which were worth less than they paid. Accordingly, the Ninth Circuit reversed the district court and remanded this claim for a jury to decide whether the shoe requirement was for the employees’ benefit.