This Littler Lightbulb highlights some of the more significant employment law developments in federal courts of appeal in the last month.

Ninth Circuit Shoots Down $15 Per Hour Contractor Minimum Wage Rule

In Nebraska v. Su, 121 F.4th 1 (9^th Cir. 2024), four states—Nebraska, Idaho, Indiana, and South Carolina—successfully appealed a district court decision denying their motion for an injunction prohibiting enforcement of Executive Order 14026 and a DOL implementing rule, which required federal agencies to include a $15 per hour minimum wage clause in all federal contracts.

In support of their challenge to the minimum wage requirement, the states argued that that the executive order and implementing rule violated the Federal Property and Administrative Services Act (FPASA), and that the implementing rule violated the Administrative Procedure Act (APA).

The Ninth Circuit agreed with the states that the “the minimum wage mandate exceeds the authority granted to the President and DOL in the FPASA.”  The language of the Act, the court found, makes it clear that “the President can only issue a policy that carries out an operative provision of the FPASA,” which does not include a minimum wage mandate. The appellate court also found the DOL rule violated the APA, which “requires courts to ‘hold unlawful and set aside agency action . . . found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,’” and concluded that the “DOL acted arbitrarily and capriciously when it overlooked alternatives to the $15 per hour minimum wage mandate.”

For these reasons, the court reversed the district court’s order and remanded the case for further proceedings. The decision creates a circuit split with the 10th Circuit, which refused to enjoin the rule in Bradford v. U.S. Dep’t of Labor, 101 F.4th 707 (10th Cir. 2024).

First Circuit Finds Insufficient Evidence to Support Pretext in ADEA Termination Case

The plaintiff in Cocuzzo v. Trader Joe's E. Inc., __ F.4th __ (1st Cir. 2024), was hired at a specialty grocery store when she was about sixty years old, was promoted when she was nearly seventy, and regularly received positive reviews as well as pay increases and bonuses. After she was terminated for buying beer at the store for her underage grandson, she filed suit in federal district court for age discrimination in violation of the ADEA and Massachusetts state law. The district court granted summary judgment for the employer and the plaintiff appealed.

The First Circuit agreed with the district court, finding the employer articulated a legitimate, nondiscriminatory reason for its decision to terminate the employee—her knowing purchase of alcohol for an underage person in violation of the store’s alcohol policy.  The plaintiff’s claim that the company’s reason for her termination was pretext was undermined by her acknowledgment, in an e-mail to the store manager, that "[t]his termination was prompted by purchasing beer for my grandson…who was coming to dinner that evening at my home."

The plaintiff also failed to identify similarly situated younger employees who were treated differently. None of the individuals the plaintiff identified as comparators, the First Circuit held, “are true ‘apples to apples’ comparators such that their dissimilar treatment could support an inference of discrimination.”

Concluding that the plaintiff “failed to identify any minimally sufficient evidence to support a finding of pretext or discriminatory animus,” the First Circuit affirmed summary judgment for the employer on the plaintiff’s age discrimination claims under the ADEA and Massachusetts law.¹

First Circuit Holds Chronic Absenteeism and Failure to Provide Medical Documentation to Support Accommodation Requests Dooms Title VII and Rehabilitation Act Claims

In another First Circuit case, Serrano-Colon v. United States Dep't of Homeland Sec., 121 F.4th 259 (1st Cir. 2024), the plaintiff filed suit in federal court alleging her employer violated Title VII and the Rehabilitation Act by denying her reasonable accommodations for her disability (fibromyalgia), terminating her employment based on her gender, disability, and pregnancy status, and retaliating against her for filing complaints with the EEOC. The district court granted summary judgment for the employer on all the plaintiff’s claims, and she appealed.

Examining the evidence, the First Circuit found that the plaintiff had years of erratic attendance. She had dozens of unscheduled absences and late arrivals each year, and failed to request leave or provide medical documentation to support the unscheduled leaves she took, despite several letters requesting medical documentation and warning of possible consequences if her attendance problems persisted.  Although the plaintiff requested an adjustment to her schedule to allow her to work four days per week with three consecutive days off, she did not provide medical documentation to support her request, and the employer denied the request.

When the plaintiff became pregnant, she requested and was placed on light duty, which consisted of working in roles that allowed her to be seated and did not involve heavy lifting. Nevertheless, the plaintiff accumulated twenty-six unscheduled absences in a six-month period.  When she again requested a reduced work schedule because of her childcare obligations, graduate studies, and health, her request was denied due to staffing needs.  Two months later, the plaintiff was terminated from employment for her chronic absenteeism, lateness, and failure to follow the employer’s leave procedures.

The First Circuit concluded that the employer had produced ample evidence of "legitimate, nondiscriminatory reason[s]" for its actions:  frequent absenteeism, repeated failure to notify her supervisors of her absences in advance, noncompliance with the employer’s requests for adequate documentation to support her absences, as well as numerous warnings to the plaintiff that failing to improve her attendance could result in disciplinary action, including termination from employment.  “That [the plaintiff’s] removal coincided with her high-risk pregnancy would not permit a finder of fact to overlook her lengthy history of erratic attendance that preceded the termination decision,” the court held.

Plaintiff’s retaliation claim, the First Circuit held, “fails for the same reasons as her discrimination claim. She points to no evidence that [the employer’s] proffered reasons for the employment actions against her were pretextual or that such actions were motivated by retaliatory animus, relying on nothing more than mere speculation and conclusory assertions.”

Plaintiff’s poor attendance also “rendered her unable to satisfy her position's essential functions,” the First Circuit stated. “She therefore cannot establish a prima facie case of discrimination or failure to provide reasonable accommodations under the Rehabilitation Act,” the court held.

Third Circuit Says Poor Interview Performance May Be Legitimate Non-Discriminatory Reason for Employment Decisions

After being denied several promotions for which she applied, the plaintiff in Glaesener v. Port Auth. of N.Y. & N.J., 121 F.4th  465 (3rd Cir. 2024), a Black employee, filed suit against her employer in federal court, claiming she was not selected for the promotions because of her race. The district court granted summary judgment for the employer and the plaintiff appealed.

The Third Circuit found that the plaintiff provided no evidence that she was passed over for promotion because of her race other than her claim that her lower interview scores were subjective. Rejecting this claim, the court stated that “poor interview performance is a legitimate, non-discriminatory reason for employment decisions.…[E]mployers may use interviews so long as they assess relevant criteria and are not ‘entirely subjective.’”  In this case, the court found, the interview questions were job-related and assessed the plaintiff’s technical knowledge, general competency, and communication skills. All the applicants were asked the same interview questions and were ranked using predetermined criteria.  There was no evidence that the interviewers “injected their own additional subjective criteria into the evaluation process,” the Third Circuit concluded, affirming summary judgment for the employer.

Seventh Circuit Rejects Claim Employees Were Laid Off Because of Union Organizing

In Consolino v. Dart, 120 F.4th 1324 (7th Cir. 2024), six employees who were commanders at a county jail were laid off during a Teamsters Union organizing campaign. They claimed they were terminated because of their union organizing efforts and filed suit under 42 U.S.C. §1983 alleging that the layoffs violated their rights under the First Amendment. The employer asserted that all the employees in the same position as the plaintiffs were let go due to a serious budget shortfall that had nothing to do with union organizing activities.  The district court granted summary judgment to the employer, holding that “the evidence does not support an inference that the pro-union speech of any commander caused the layoffs.”

The Seventh Circuit agreed, noting that despite the employer’s opposition to the unionization of the commanders, it had not laid off or fired a single commander since their organizing campaign had begun four years earlier, and that because of the budget crisis, which was undisputed, “[a]ll commanders were let go, without regard to any opinions they had expressed (pro, con, or neutral) on the organization campaign.”  Moreover, the court stated, “most of the work force was and remains unionized, and the portion represented by unions rose after the commanders (who were not part of a bargaining unit) were laid off. A personnel decision that increases the unionized fraction of the labor force is hard to depict as an anti-union speech maneuver.” 

Tenth Circuit Holds a Few Isolated Incidents Insufficient to Support Race and National Origin Bias Claims

Iweha v. State of Kansas, 121 F.4th 1208 (10th Cir. Nov. 19, 2024), involved a Black hospital pharmacist’s appeal of summary judgment in favor of her employer on her claims of a hostile work environment, disparate treatment, and retaliation in violation of Title VII following her termination from employment for workplace misconduct. Among other things, the plaintiff arrived late, left early, and used her computer for schoolwork, surfing the internet, and online shopping during work hours.  In addition, the plaintiff was involved in an altercation with a co-worker, failed to complete assignments from her supervisor, and was caught sleeping in the break area more than once.

In support of her hostile environment claim the plaintiff, who was born and educated in Nigeria, asserted, among other things, that:

• A co-worker asked where she went to school and whether Nigeria had pharmacy schools, a currency, or cars.
• Her supervisor asked where she learned to speak English and commented: “Nigerian women do not go to school. The few who do get educated are bossy.”
• She was excluded from meetings at the pharmacy and discussions between her coworkers.
• In response to an assignment from her supervisor, the plaintiff pointed out that the assignment was for Martin Luther King Day. The plaintiff claimed that her supervisor “looked at [her] in disgust” and said, “Is that a holiday?”

Prior to her termination from employment, the plaintiff never contacted the Human Resources Department or complained of discrimination or harassment based on her race or national origin.

The Tenth Circuit affirmed summary judgment on all claims.  As to the plaintiff’s hostile work environment claim, the court stated that although the plaintiff “has pointed to several troubling interactions at her workplace, she cannot satisfy the high bar required for a hostile work environment claim—on either the issue of severity or pervasiveness.” To establish a hostile work environment claim, the court held, a plaintiff must ordinarily “‘show more than a few isolated incidents of … enmity’ on the basis of the protected status…. Even ‘sporadic…slurs’ are insufficient; there must be a ‘steady barrage of opprobrious…comments’ based on race or national origin.”

The court also rejected the plaintiff’s Title VII disparate treatment claim, which was based on the theory that the employer’s reasons for her termination were pretextual. Noting that the decision to terminate the plaintiff’s employment was based on an independent investigation of her conduct, and that there were no other similarly situated employees who were treated differently, the court found insufficient evidence to support the plaintiff’s disparate treatment claim.

Similarly, the Tenth Circuit rejected the plaintiff’s claim that she was terminated in retaliation for complaining about her treatment.  Even if there had been evidence that the plaintiff complained of discrimination based on her race or national origin, the court concluded, the plaintiff’s claim would still fail because she “has not offered sufficient proof that her employer’s reasons for terminating her were a pretext that, in this context, masked its retaliation for that protected activity.”