This Littler Lightbulb highlights some of the more significant employment law developments at the U.S. Supreme Court and federal courts of appeal in the last month.

• Eleventh Circuit Upholds Injunction Against Florida “Stop-WOKE” Law

In Honeyfund.com Inc. v. Governor, 2024 U.S. App. LEXIS 5193 (11th Cir. 2024), the Eleventh Circuit upheld a preliminary injunction blocking enforcement of Florida’s Individual Freedom Act (IFA), or “Stop-WOKE” law, which “seeks to bar employers from holding mandatory meetings for their employees if those meetings endorse viewpoints the state finds offensive.”  Further analysis of the case and practical considerations for employers can be found here.

• Second Circuit Dismisses Challenge to Corporate Diversity Program          

In another case challenging corporate diversity initiatives, Do No Harm v. Pfizer Inc., 2024 U.S. App. LEXIS 5428 (2d Cir. 2024), the Second Circuit dismissed a case alleging that a company’s fellowship program that seeks “to advance students and early career colleagues of Black/African American, Latino/Hispanic, and Native American descent” unlawfully excluded white and Asian-American applicants in violation of federal and state laws. The Second Circuit agreed with the district court that the plaintiff, a nationwide membership organization, lacked standing to sue because it did not identify by name a single member injured by the company’s alleged discrimination. “An association that premises its standing on harm to its members must demonstrate that those members suffered an injury in fact that is concrete and particularized and actual or imminent, as opposed to conjectural or hypothetical,” the Second Circuit stated. The court noted that the First Circuit, the only other appellate court to address the issue, had taken the same position in Draper v. Healey, 827 F.3d 1 (1st Cir. 2016).

• Eleventh Circuit Examines Volunteer Versus Employee Status Under the FLSA

In Adams v. Palm Beach County, 2024 U.S. App. LEXIS 5876 (11th Cir. 2024), the Eleventh Circuit considered whether volunteers who provided services at a golf club were employees under the Fair Labor Standards Act.  The plaintiffs, who had responded to an advertisement seeking “volunteers” to perform services in exchange for discounted golf, filed a class action in the U.S. District Court for the Southern District of Florida claiming that their receipt of the golf discount benefit constituted a form of “compensation” that undermined their “volunteer” status under the FLSA and Florida law. 

The district court dismissed the complaint finding that the plaintiffs were “public-agency volunteers” not covered under either law, and the plaintiffs appealed. Agreeing with the district court, the Eleventh Circuit quoted the FLSA regulations: “[T]here ‘are no limitations or restrictions imposed by the [Act] on the types of service which private individuals may volunteer to perform for public agencies.’” Thus, the Eleventh Circuit stated, the volunteer activities excluded by the FLSA were not limited to the examples provided in the regulations, such as volunteer firefighters, auxiliary police, or volunteers participating in civic, charitable, or educational programs, and included the activities performed by the plaintiffs. Applying an “economic reality” test, the court concluded that the plaintiffs could not establish that the reduced fees for golf were anything more than a perk for volunteer services: “The district court correctly ruled that the attendants were not promised, could not have reasonably expected, and did not receive any ‘compensation’ for their services.” Further analysis of the case and its implications can be found here.

• Eleventh Circuit Clarifies Standard for Analyzing Equal Pay Act Claims

Baker v. Upson Reg'l Med. Ctr., 2024 U.S. App. LEXIS 5688 (11th Cir. 2024), involved a claim by a female physician that her lower bonus compensation structure compared to a male physician hired by a hospital at the same time, in the same practice area, violated the Equal pay Act (EPA). The federal district court granted summary judgment to the hospital and the plaintiff appealed.

To establish a prima facie case under the EPA, the Eleventh Circuit stated, a plaintiff “must meet the fairly strict standard of proving that she performed substantially similar work for less pay.” Once a plaintiff establishes a prima facie case under the EPA, “the burden shifts to the employer to prove that the difference in pay is justified by one of the four exceptions in the Equal Pay Act: (1) a seniority system;” (2) “a merit system;” (3) “a system which measures earnings by quantity or quality of production;” or (4) “a differential based on any factor other than sex.”In contrast to Title VII, the Eleventh Circuit held, once the defendant meets its burden of establishing one of these affirmative defenses, there is no third step requiring that the plaintiff show the defense is pretextual.“A third step, assessing pretext, makes no sense in an EPA analysis because that statute, unlike Title VII, does not require proof of intentional discrimination,” the court stated.

Assessing the facts of the case, the Eleventh Circuit affirmed the district court’s decision, finding ample evidence that the hospital relied on multiple factors other than sex to set the differential in bonus structure between the male and female doctors, including the fact that at the time of hire the male physician was board-certified and had been in practice for fifteen years, whereas the female physician had two and a half years of experience as a practicing physician, and was not board certified.

• Sixth Circuit Grapples with Reimbursement Amount for Non-Exempt Employees Who Use Their Own Vehicles for Delivery

In Parker v. Battle Creek Pizza, Inc., 2024 U.S. App. LEXIS 5858 (6th Cir. 2024), the Sixth Circuit reviewed conflicting district court decisions regarding the amount delivery drivers should be reimbursed for using their own vehicles for delivery to avoid violation of the FLSA’s requirement that minimum wages must be paid “free and clear” of any costs incurred by employees who provide their own “tools of the trade.”  One district court agreed with the delivery drivers that they should be reimbursed using the IRS mileage rate.  The other district court agreed with the employers that drivers should be reimbursed based on a “reasonable approximation” of their costs. The Sixth Circuit held that both courts were wrong.

The IRS rate, the Sixth Circuit stated, is a nationwide average that tends to overpay drivers in states where gas taxes are relatively low, drivers of older vehicles, and drivers of vehicles that get better gas mileage, and underpay drivers where gas taxes are high, as well as drivers of newer vehicles or those that get worse mileage. The Sixth Circuit also rejected the use of a “reasonable approximation” of actual costs as a basis for reimbursing drivers. If the employer’s approximation (reasonable or not) of a minimum-wage employee’s costs falls short of the actual costs incurred on the employer’s behalf, the court stated, the result would be a violation of the FLSA’s “free and clear” minimum wage payment requirement.

The court acknowledged the dilemma that situations like this present: While the FLSA entitles a minimum-wage employee to reimbursement of the actual costs incurred on the employer’s behalf, “those costs are undisputedly hard to calculate.” Without providing guidelines for calculating those costs, the Sixth Circuit remanded the case to the district courts “for further proceedings consistent with this opinion.” For additional discussion of the case and considerations for employers dealing with reimbursement issues, see Littler’s ASAP here.

• Seventh Circuit Upholds Summary Judgment for Employer in ADA Discrimination Claim and Retaliation Claims Under ADA and Title VII, and Reiterates High Standard for Pretext

Brooks v. City of Pekin, 2024 U.S. App. LEXIS 5656 (7th Cir.2024) involved claims by two police officers who had a history of workplace misconduct.  One of the officers, who had been transferred to an evening shift and then placed on unpaid leave for various infractions, claimed that the city violated the ADA by refusing to move him back to the day shift to accommodate his sleep apnea and retaliated against him for filing complaints regarding his accommodation requests. The other officer, who was terminated for improperly recording a police briefing, claimed that he was terminated in retaliation for complaining about a colleague who asked him about his sex life. The district court granted summary judgment to the city, the plaintiffs appealed, and the Seventh Circuit affirmed the district court’s decision.

As to the first officer’s ADA failure to accommodate claim, the Seventh Circuit noted that the officer had provided a doctor’s report stating he could perform his job “with or without an accommodation,” and that the city had offered him various alternative accommodations. The failure to provide the exact accommodation the plaintiff would have preferred, a transfer back to the first shift, was “irrelevant,” the Seventh Circuit held. Regarding the officer’s retaliation claim, the court found the city had ample legitimate, nondiscriminatory reasons for placing him on unpaid leave. Rejecting plaintiff’s claim that the city’s reasons for disciplining him were pretextual, the court stated that “pretext means more than a mistake on the part of the employer; pretext means a lie, specifically a phony reason for some action.” Thus, the court held, “even if the City were mistaken in its belief that [the plaintiff] engaged in impermissible conduct, [he] cannot show that the stated reasons for his discipline were not genuine or, in other words, ‘a lie.’”

As to the second officer’s retaliation claim based on his complaints of sexual harassment, the Seventh Circuit found that he could not show that he had “a sincere and reasonable belief that [he] [was] challenging conduct that violates Title VII.” Although the comments the officer complained of were inappropriate, the court found, they were not because of his sex. Quoting prior Seventh Circuit and U.S. Supreme Court decisions, the court stated: “Sexual horseplay differs from sex discrimination, and Title VII covers only discriminatory conduct…. Nor were the comments ‘sufficiently severe or pervasive to alter the conditions of [the plaintiff’s] employment and create an abusive working environment.’”

• Fourth Circuit Holds Time Lag Between Alleged Protected Activity and Adverse Action Defeats Retaliation Claim, and Addresses First Amendment Claim

After a police officer was passed over for promotion, and two women he believed were less qualified were promoted, the plaintiff in Massaro v. Fairfax County, 2024 U.S. App. LEXIS 6512 (4th Cir. 2024) filed a discrimination complaint with the county Office of Human Rights and Equity Programs. After several incidents involving the police officer, including telling a female employee that her promotion was based on her gender, the officer was transferred from his position overseeing training of police officers and recruits to a position on the night shift of the Patrol Bureau. He filed suit in federal court alleging violations of Title VII, the Age Discrimination in Employment Act (ADEA), violation of the First Amendment claiming he was retaliated against for filing a discrimination complaint with the county.The district court granted summary judgment to the county on all claims and the plaintiff appealed.

Noting that violations of Title VII and the ADEA are analyzed under the same framework, the Fourth Circuit agreed with the district court that the plaintiff had engaged in protected activity—filing a complaint—and that his transfer from a supervisory position was an adverse employment action, but he failed to establish that he was transferred because he engaged in protected activity. Emphasizing that the time lapse between the plaintiff’s complaint and his transfer to another position was 18 months, the Fourth Circuit stated: “The temporal lag between his discrimination complaint and his ultimate transfer was too great to support any inference of causation standing alone.”Although evidence of “recurring retaliatory animus by [an] employer as part of a long-running plan to terminate an employee’s employment” could satisfy the element of causation required to support a retaliation claim, there was no such evidence in this case, the court held.

Analyzing the plaintiff’s First Amendment retaliation claim, the Fourth Circuit emphasized the requirement that a plaintiff establish that “he spoke as a citizen on a matter of public concern, rather than as an employee on a matter of personal interest.” The plaintiff’s complaint in this case did not satisfy this requirement, the court found. “While it is true that ‘discriminatory institutional policies or practices can undoubtedly be a matter of public concern’… [a] qualm focused on one’s own perceived mistreatment is not a matter of public concern,” the court stated.In this case, the court concluded, the plaintiff was complaining about his own personal situation rather than a matter of public concern. “[W]e cannot casually transform run-of-the-mill employee complaints into social and political commentaries backed by the full weight of the Constitution,” the court concluded. “To do so would turn the workplace into a constitutional landmine, while offering public employees inflated speech rights not shared by their private counterparts.”

• Failure to Give Adequate Notice Dooms FMLA Claim in Fifth Circuit, Which Also Addresses Standard for Pretext         

In Cerda v. Blue Cube Operations, L.L.C., 2024 U.S. App. LEXIS 6638(5th Cir. 2024), the Fifth Circuit affirmed summary judgment for the employer in plaintiff’s FMLA interference and retaliation claim following her termination from employment when an investigation revealed she had been paid for extended lunch breaks to care for her sick father and failed to provide

In addition, when the plaintiff was required to use personal sick days after she was exposed to COVID-19, she threatened to come to work and infect her co-workers the next time she was sick.

The Fifth Circuit also rejected plaintiff’s claims that the reasons given for her termination –that she earned wages for time she did not work and threatened to expose her co-workers to COVID-19 – were pretextual. “Pretext can be proven by any evidence that casts doubt on the credence of the employer’s proffered justification for the adverse employment action,” the Fifth Circuit stated, but found no such evidence in this case.

• Six Circuit Holds Medical Residents Not Entitled to More Due Process than Medical Students

Mares v. Miami Valley Hospital, 2024 U.S. App. LEXIS 6742 (6th Cir. 2024), involved a medical resident who was dismissed from a medical school residency program and terminated from her position at a hospital after a long series of complaints and escalating discipline stemming from her unprofessional behavior.  She filed suit in federal court against the medical school, the hospital, and the hospital’s owners alleging violations of her procedural and substantive due process rights along with various contract-based state law claims, and the court granted summary judgment for the defendants.

On appeal, the Sixth Circuit affirmed the district court’s grant of summary judgment and joined “every circuit to address the question,” holding that the “medical residency program is an extension of medical education and that its residents are owed the [minimal] amount of due process required for students.”