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

Fourth Circuit Rejects ADA Claim of Employee Who Tested Positive for Illegal Drugs to Treat Anxiety and Muscle Spasms

The plaintiff in Anderson v. Diamondback Investment Group LLC, __ F.4th __ (4th Cir. 2024), claimed she was terminated from employment during her 90-day “introductory period” in violation of the ADA after twice testing positive for illegal drugs she said she purchased to treat anxiety and muscle spasms.  The district court granted summary judgment to the employer and the plaintiff appealed. The Fourth Circuit affirmed the judgment of the district court finding that the plaintiff failed to provide sufficient evidence that she was disabled under the ADA.

Examining the evidence provided by the plaintiff regarding her alleged disability, the Fourth Circuit agreed with the district court that “mere conclusory statements of opinion by [the plaintiff] untethered to any specific facts, medical evidence, or other competent evidence…do not provide sufficient admissible evidence from which a reasonable factfinder could conclude that [the plaintiff] did have anxiety and joint pain, and further that such impairment is a disability in that substantially limits a major life activity.”

The court also rejected the plaintiff’s claim that the company’s policy conditioning employment on the prospective employee’s testing negative for drugs and alcohol discriminated against disabled individuals.  So long as the goal of the policy was not targeting “the intentional exclusion of any individual taking a lawfully prescribed drug to treat a disability,” the company was entitled to implement this policy.  Citing the ADA, which states that “a qualified individual with a disability shall not include any employee or applicant who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use,” the Fourth Circuit concluded that the company had a legitimate, non-discriminatory reason for terminating the plaintiff’s employment. 

Fifth Circuit Examines Salary Basis Test for Exempt Status under the FLSA

Venable v. Smith Int'l, Inc., __ F.4th __ (5th Cir. 2024), involved a claim for unpaid overtime wages by oil rig workers who asserted they did not meet the salary basis test for exempt status under the FLSA. The plaintiffs received an annual salary that was paid bi-weekly and was not subject to reduction based on the quality or quantity of work performed. In addition, the employees could receive job bonuses at a day rate. The bonuses were included in their total annual compensation, which exceeded the total annual compensation threshold for exempt employees.

The plaintiffs claimed that because they were paid in part on a weekly salary basis and in part on a daily basis, they did not meet the salary basis test for exempt employees. Rejecting this argument, the Fifth Circuit noted that FLSA §604(a) provides: “An employer may provide an exempt employee with additional compensation without losing the exemption or violating the salary basis requirement, if the employment arrangement also includes a guarantee of at least the minimum weekly-required amount paid on a salary basis.”  Examining each plaintiff’s compensation, the court found that their weekly wages were well over the required amount, and therefore the additional compensation they received at the daily rate did not defeat their qualification for the bona fide executive exemption.

The court also found the plaintiffs’ job duties, which were primarily supervisory, also qualified them for the administrative exemption. Accordingly, the Fifth Circuit affirmed summary judgment for the employer on the plaintiffs’ FLSA claims.

Second Circuit Affirms Summary Judgment for the Employer in FMLA Claim Regarding Remote Work

In Kemp v. Regeneron Pharms., Inc., __ F.4th __ (2d Cir. 2024), the Second Circuit rejected plaintiff’s claim that her employer interfered with her rights under the FMLA by prohibiting her from working remotely more than one day per week. Following a month in which plaintiff worked remote for 15 of 20 workdays, plaintiff’s manager told plaintiff she needed to be more visible in the office and attend meetings in-person rather than by phone. The plaintiff’s supervisor limited plaintiff’s remote work to one day per week and told plaintiff she could use the FMLA it granted her for any day she needed to be absent to care for her disabled daughter.

Plaintiff discussed transitioning to a role with a similar status and title, but with fewer managerial responsibilities. She and the company developed a new senior manager position for the plaintiff, which she accepted. Less than a month later, before even starting the new position, the plaintiff notified the company that she was retiring. Almost three years later, the plaintiff filed her lawsuit She argued, in part, that the restriction placed on her ability to work from home interfered with her FMLA rights. After the federal district court granted summary judgment, the plaintiff appealed.

Affirming summary judgment, the Second Circuit first found the plaintiff’s claims were time-barred. Noting that the three-year statute of limitations, rather than the two-year statute, applied only if the employer acted in willful disregard of its obligations under the FMLA, the court found that in this case the company complied with rather than flouted its obligations under the FMLA. As to plaintiff’s other claims, the Second Circuit held that the FMLA applies only to employees’ right to take leave, and “does not entitle employees to work remotely or make it unlawful for an employer to punish an employee who works remotely. Remote work may be another form of accommodation, but it is not ‘leave’ within the meaning of the statute.”  Accordingly, the appellate court affirmed summary judgment for the employer finding the plaintiff “failed to adduce evidence that [the company] willfully interfered with her use of FMLA benefits, rather than her ability to work remotely.”  

Eighth Circuit Holds Required Attendance at Equity Training Not a Constitutional Violation

In Henderson v. Springfield R-12 Sch. Dist., __ F.4th __ (8th Cir. 2024), school district employees who were required to attend an equity training program on how to become “Anti-Racist educators, leaders and staff members” alleged they were discouraged from remaining silent or voicing dissenting views in violation of the First and Fourteenth Amendments, and that the requirement to participate in the equity training program constituted an unconstitutional condition of employment.

The district court granted summary judgment to the school district, and plaintiffs appealed. “To establish an injury from chilled or compelled speech,” the Eighth Circuit stated, “the plaintiffs must show that their fear of punishment was credible and not merely speculative.” Examining the facts, the court found that, although the plaintiffs received pushback from the trainers when they expressed views different from those of the school district, the plaintiffs received full pay and professional-development credit for attending the training and were never disciplined for any of their remarks or actions during the training.  Thus, the court held, the plaintiffs failed to satisfy the requirements for a Constitutional violation: that they “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.”

Seventh Circuit Rejects Title VII Discrimination and Retaliation Claims of “a Large Mexican Male”

After being terminated from employment, the plaintiff in Galvan v. State of Indiana, __ F.4th __ (7th Cir. 2024), a supervisor in the state Department of Child Services, filed suit in federal court asserting that as “a large Mexican male who can be wrongly perceived as scary or intimidating,” he was discriminated against based on his race and sex, in violation of Title VII, and was retaliated against based on his complaints of discrimination. The district court granted summary judgment for the employer and the plaintiff appealed.

In support of his claims, the plaintiff argued that the contrast between his past performance reviews, in which he had consistently been rated as “meets expectations,” and his negative performance reviews under a new supervisor constituted evidence of discrimination.

In response, relying on prior Seventh Circuit precedent, the court stated that “the issue was not an employee’s past performance but whether an employee was performing well at the time of the termination.”  Examining the record, the Seventh Circuit found that the plaintiff’s more recent lower performance ratings were based on complaints of rude and aggressive behavior with internal and external stakeholders as well as issues regarding his judgment on child safety matters.  The Seventh Circuit likewise recognized that his prior evaluations stated that the plaintiff could improve his communication skills despite stating that he met expectations. Ultimately, the plaintiff’s employment was terminated following an internal hearing regarding a particularly volatile alteration with a subordinate. In contrast to the evidence of the plaintiff’s serious misconduct, the Seventh Circuit found there was no evidence that would allow a jury to conclude the plaintiff’s termination “was motivated by discrimination,” and affirmed summary judgment for the employer on the plaintiff’s discrimination complaint.

The Fourth Circuit also affirmed summary judgment for the employer on the plaintiff’s retaliation claim.  Although a few months before his termination from employment the plaintiff had complained that “he was being treated differently because he is Mexican,” the court stated that “any inference of causation supported by temporal proximity may be negated by circumstances providing an alternative explanation for the challenged action.” In this case, the court held, they had already found a legitimate explanation for the plaintiff’s termination.