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Updated 2023
Recent Appellate Cases Where Littler Made a Difference
Arbitration
Class Action
Americans with Disabilities Act
Discrimination
Whistleblowing and Retaliation
National Labor Relations Act
Trade Secrets
According to Lex Machina’s Employment Litigation Report 2022, Littler represented clients in more labor and employment lawsuits than any other law firm from 2019 to 2021. Building upon successes at the trial court level, Littler’s record at the appellate level reflects difference-making advocacy. In the last five years, Littler has won over 100 federal and state appellate cases that have made law, changed or confirmed workplace practices, or simply protected clients’ business interests and decisions. We have narrowed the list down to a small sampling of appellate wins.
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Arbitration agreements have remained highly important for employers as a means of resolving workplace concerns and avoiding expensive and time-consuming litigation, especially class, collective, and other representative actions that too often have bet-the-company stakes. Littler has been particularly successful in enforcing arbitration agreements and has had a number of wins in appellate courts, including before the U.S. Supreme Court.
Viking River Cruises, Inc. v. Moriana, 142 S. Ct. 1906 (2022)
Littler represented Viking River Cruises in a recent U.S. Supreme Court case that constitutes a significant win for California employers seeking to enforce arbitration agreements of an employee’s individual claims under California’s Private Attorneys General Act (PAGA). PAGA authorizes class-like representative actions by any “aggrieved employee . . . on behalf of himself or herself and other current or former employees” to obtain civil penalties. Under previous law, PAGA actions could only be maintained in court on behalf of the State of California, and PAGA waivers and/or requirements that employees pursue individual PAGA actions in arbitration were held to be invalid. In Viking River Cruises, the U.S. Supreme Court overruled long-standing California Supreme Court precedent holding that PAGA claims could not be split into arbitrable “individual” claims and non-arbitrable “representative” claims. Analyzing the Federal Arbitration Act (FAA) and PAGA, the Court held that the FAA preempts the California law and, as a result, plaintiff’s individual PAGA claim was arbitrable. Most significantly, the Court also held that “PAGA provides no mechanism to enable a court to adjudicate non-individual PAGA claims once an individual claim has been committed to a separate proceeding.” Accordingly, the Court dismissed the non-individual representative claims on behalf of other employees.
In a significant decision, the Seventh Circuit Court of Appeals interpreted a provision of the Federal Arbitration Act (FAA) that exempts from arbitration “workers engaged in foreign or interstate commerce.” Littler represented Grubhub, an online and mobile food ordering platform, in a consolidated appeal affirming two district court decisions enforcing an arbitration agreement signed by delivery drivers who claimed they should be exempt under the FAA because the food they delivered had moved across state lines. Distinguishing this case from those involving “last mile” drivers who drove an intrastate leg of an interstate route, the Seventh Circuit held in a published decision that, to fall within the exemption, “the workers must be connected not simply to the goods, but to the act of moving those goods across state or national borders.” The court also rejected the delivery drivers petition for an en banc rehearing.
Wallace v. Grubhub Holdings, Inc., 970 F.3d 798 (7th Cir. 2020)
Edwards v. Doordash, Inc., 888 F.3d 738 (5th Cir. 2018)
Littler successfully defeated class certification and then on appeal succeeded in affirming its dismissal of this putative collective action in favor of compelling arbitration. Distinguishing the case from other cases certifying collective actions prior to determining arbitrability, the Fifth Circuit Court of Appeals held in a published decision that the district court properly decided the arbitrability question before deciding class certification because, among other things, Doordash, Inc. “promptly moved to compel the sole plaintiff to arbitrate his claims” prior to the presence of additional opt-in plaintiffs. The Fifth Circuit also decided the arbitration agreement was enforceable despite numerous arguments against enforceability raised by the plaintiff.
Chamber of Commerce v. Bonta, No. 20-15291 (9th Cir. Feb. 15, 2023)
In a significant win for California employers, the Ninth Circuit Court of Appeals, in Chamber of Commerce v. Bonta affirmed a district court injunction striking down California Assembly Bill 51 (“AB 51”) as preempted by the Federal Arbitration Act (FAA), after nearly three years of legal challenges. As a result, California employers may continue to implement mandatory employment arbitration agreements for employee claims for unpaid wages, discrimination, and numerous other causes of action under the Labor Code and the Fair Employment and Housing Act (FEHA).
Bowerman v. Field Asset Services, Inc., 39 F.4th 652 (9th Cir. 2022)
This putative misclassification class action not only resulted in a significant win for Littler’s client but also established and affirmed significant legal principles regarding class certification. Specifically, the Ninth Circuit Court of Appeals analyzed the standards for certification of a class action under Federal Rule 23, reversing the district court’s certification decision and decertifying the class. In discussing the predominance of common issues required for class certification, the Ninth Circuit emphasized the distinction between: (i) individual differences in calculating the amount of damages, which would not defeat class certification when common issues otherwise predominate; and (ii) the inability of plaintiffs to show that the whole class suffered damages traceable to the defendant’s conduct, which defeated class certification in this case. Ultimately, in addition to decertifying the class in this published decision, the Ninth Circuit reversed final judgment in favor of eleven class members and partial summary judgment on liability as to all class members, and vacated an award of more than $5 million in attorney fees to plaintiffs’ counsel.
In a significant published decision on a threshold jurisdictional issue, the Eighth Circuit Court of Appeals denied certification to employees of Littler’s client, a Florida-based technology company, who neither lived nor worked in Minnesota and sought compensation for time spent commuting to and from worksites around the country. Based on Littler’s arguments, the Eighth Circuit Court of Appeals became one of the first appellate courts to apply the U.S. Supreme Court’s decision in Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017), to a Fair Labor Standards Act (FLSA) collective action. Upholding the district court’s denial of certification, the appellate court held that only workers with a connection to the forum state may join an FLSA collective action. Quoting Bristol-Myers, the Eight Circuit Court of Appeals stated it does not have jurisdiction “to entertain claims involving no in-state injury and no injury to residents of the forum State.”
Vallone v. CJS Solutions Group, LLC d/b/a HCI Group, 9 F.4th 861 (8th Cir. 2021)
As employment class and collective actions continue to proliferate, a threshold issue is certification of a class of employees. Littler has been particularly effective in marshalling the factual and legal arguments necessary to defeat class certification at both the lower court and appellate levels saving clients from the time, disruption, and costs involved in the extensive litigation of these types of cases.
Tchankpa v. Ascena Retail Group, Inc., 951 F.3d 805 (6th Cir. 2020)
The Sixth Circuit Court of Appeals affirmed summary judgment Littler had obtained for its client in a significant published decision analyzing the standard for reasonable accommodations under the Americans With Disabilities Act (ADA). Applying the Sixth Circuit’s multi-part test for evaluating reasonable accommodation claims, the court rejected the plaintiff’s claim that the employer violated the ADA when it denied his request for an accommodation to work from home three days per week because of an injured shoulder. The Sixth Circuit emphasized that the plaintiff bears the burden of establishing that the requested accommodation is reasonable, and the court emphasized that an accommodation is reasonable only if it addresses “a key obstacle preventing [the employee] from performing a necessary function of [his job.]” In this case the court found that the plaintiff failed to establish how working from home three days per week would enable him to perform his job, which was to transport laptops. The plaintiff also failed to provide medical evidence tying his work-from-home request to his injured shoulder.
The Fifth Circuit Court of Appeals set forth the standards for proving disability discrimination under the ADA in a decision analyzing circumstances where the employee was fired for sleeping at his desk, allegedly caused by a diabetes-related condition. Namely, the Fifth Circuit held, the employee may either present direct evidence of discrimination or prove: (1) that the employee has a disability; (2) was qualified for the job; and (3) was subject to an adverse employment action on account of the employee’s disability. First, Littler argued, and the circuit court agreed, that the employer’s generalized knowledge of the plaintiff’s medical condition was insufficient to infer direct evidence of discrimination. Next, Littler focused on whether the plaintiff was qualified for his job and successfully convinced the court that maintaining alertness was a basic element of his job as a Human Resources Manager. Accordingly, the court affirmed summary judgment for the company and denied plaintiff’s motion for rehearing en banc.
Clark v. Champion National Security, Inc., 952 F.3d 570 (5th Cir. 2020)
Challenges to employers by employees claiming they were discriminated against because of a disability or not provided a reasonable accommodation of their disability generally involve consideration of many moving parts including the business requirements of the employer, the qualifications of the employee and the reasonableness of the employee’s demands. Littler’s in-depth analysis of these factors has resulted in significant wins in a number of ADA appellate cases, including those summarized below.
Brigham v. Frontier Airlines, Inc., No. 21-1335 (10th Cir. Jan. 24, 2023)
Providing a reasonable accommodation under the Americans with Disabilities Act (ADA) does not require an employer to violate a collective bargaining agreement the Tenth Circuit recently held in Brigham v. Frontier Airlines, Inc. The appellant in the case was a flight attendant who was a recovering alcoholic. She asked to be excused from the airline’s bidding system for flight schedules or to be reassigned to light duty in the general office to void overnight layovers because she claimed they tempted her to drink. However, the airline’s collective bargaining agreement (CBA) with the flight attendants’ union, required use of the flight schedule bidding system to determine a flight schedule, and reassignment to the general office was only available to employee’s injured on-the-job, and as such the appellant was not eligible for reassignment. Accordingly, the airlines rejected her requests. Unable to bypass the bidding system or move to the General Office, the flight attendant violated airline policy and the CBA by missing too many assigned flights and the airlines terminated her employment. The flight attendant sued and the District Court for the District of Colorado granted summary judgment to the airline. The Tenth Circuit affirmed citing the Supreme Court’s decision in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 79 (1977) that “the duty to accommodate doesn’t require an employer to take steps inconsistent with a collective bargaining agreement.” As in Hardison, the court pointed out that “the requested accommodation [of bypassing the CBA’s bidding system] would have disrupted the legitimate expectations of other employees relying on the collective bargaining agreement.” It also found that no “vacancy” existed in the General Office—which could have triggered the reassignment obligation under the ADA—because the airline had limited temporary General Office positions only to employees injured on-the-job, as was its right under Duvall v. Georgia-Pacific Consumer Products, L.P., 607 F.3d 1255 (10th Cir. 2010). The court also rejected the employee’s argument that the airline violated the ADA by failing to engage in the interactive process. Citing cases from other circuits the court held that “the failure to engage in the interactive process is not independently actionable under the Act.”
Affirming summary judgment in favor of Littler’s client, the Eighth Circuit Court of Appeals rejected a surgeon’s claim of disparate treatment based on his race (African-American), religion (Muslim), and national origin (Egyptian). The plaintiff, who was recommended for termination for sexual harassment and unwelcome romantic advances, resigned prior to his termination and claimed that the medical center had given preferable treatment to another physician who was white, Canadian, and an Atheist. The plaintiff claimed this other physician had a conflict of interest due to his relationship with a medical device manufacturer, as well as poor reviews for abrasive and disrespectful communications and angry outbursts. Notably, the Eighth Circuit found in this published decision that the two were not appropriate comparators by emphasizing that, absent a finding of intentional discrimination (not present in this case), a reviewing court was not vested with “the authority to sit as [a] super-personnel department reviewing the wisdom or fairness of the business judgments made by employers . . . ..”
Said v. Mayo Clinic, 44 F.4th 1142 (8th Cir. 2022)
Littler’s experience with all aspects of discrimination law, including race, gender, religion, and national origin, as well as its experience with issues related to sexual harassment, has helped in its support of clients and defense of discrimination lawsuits at both the district and appellate court levels.
Markley v. U.S. Bank National Association, No. 21-1240 (10th Cir. Feb. 8, 2023)
In Markley v. U.S. Bank National Association, the Tenth Circuit Court of Appeals rejected a high-level bank manager’s claim that he was terminated from employment because of his age in violation of the Age Discrimination in Employment Act (ADEA). The manager claimed that the bank’s reasons for his termination -- serious misconduct in providing a loan to a member of his sales team and crediting the team member with sales he did not make – were pretextual. In support of his claims the manager asserted that the investigation the bank conducted into his conduct, following which a separate misconduct disciplinary committee unanimously voted to terminate him, was flawed. The Tenth Circuit rejected the manager’s assertions holding that “there must be some other indicator of protected-class-based discrimination for investigatory flaws to be capable of establishing pretext.” In this case there was no other evidence of age discrimination. Moreover, the court held, even if deficiencies in an investigation alone could support a finding of pretext, the manager’s criticisms of the investigation in the case were “unpersuasive and insufficient” to establish pretext. Among other things, the court found the manager’s claim that the bank did not provide him a reasonable opportunity to refute the allegations against him was inaccurate but concluded that even if true “the argument would not establish pretext.” Accordingly, the court affirmed summary judgment in favor of the bank.
Canter v. AT&T Umbrellas Benefit Plan No. 3 and AT&T Services, Inc., 33 F.4th 949 (7th Cir. 2022)
Applying the “arbitrary and capricious” standard of review, the Seventh Circuit Court of Appeals determined that the termination of the employee’s short-term disability benefits was not wrongful. Discussing the significance of “objective medical evidence” versus self-reported evidence of pain, headaches and dizziness, Littler convinced the Seventh Circuit that the claims administrator’s decision denying benefits was substantively reasonable. Despite some points of adverse evidence raised by the plaintiff, the court affirmed summary judgment in favor of the company and its employee benefit plan on plaintiff’s claim of wrongful termination of his short-term disability benefits, expressly holding that a plaintiff’s subjective reports of pain were not a “trump card” requiring an award of benefits when other evidence reviewed by the plan administrator supported a conclusion that plaintiff was not disabled as defined in the benefit plan.
The Fifth Circuit Court of Appeals conclusively affirmed summary judgment for Littler’s client on an employee’s benefits claim, as well as on the employee’s claim for misrepresentation. Holding that the employee was ineligible for benefits under the clear terms of the plan, the Fifth Circuit also found that he failed to establish detrimental reliance on information the plan provided. “Put simply,” the court stated, “benefit-estimate statements do not ‘establish’ or ‘operate’ a retirement plan.” Moreover, the Fifth Circuit emphasized, the plaintiff did not suffer any harm from the benefits estimate about which he complained.
Clark v. CertainTeed Salary Pension Plan, 860 F. App’x 337 (5th Cir. 2021)
Employee benefits law presents unique challenges for employers and benefits plan administrators. Littler has successfully defended a variety of ERISA cases and upheld summary judgment on appeal for both employers and plan administrators in complex cases.
Flood v. Just Energy Marketing Corp., 904 F.3d 219 (2d Cir. 2018)
In this published decision, the Second Circuit Court of Appeals analyzed the work of a door-to-door salesperson and provided an in-depth discussion of the outside sales exemption of the Fair Labor Standards Act (FLSA) and the standard for construing such exemptions. Affirming summary judgment in favor of Littler’s client, the Second Circuit rejected the plaintiff’s argument that he was not making sales within the meaning of the statute because the company retained discretion to reject the contracts he secured from customers. Securing “a commitment to buy” was sufficient to establish the outside sales exemption, the court held, distinguishing cases involving mere solicitation of interest with no commitment to buy.
In a win for the restaurant industry, the Eleventh Circuit Court of Appeals recently affirmed summary judgment in a published decision in favor of a restaurant in a matter of first impression for that circuit: whether a restaurant’s mandatory service charge was a tip. In this collective action, tipped employees challenged their employer’s compensation practices, which used the 18% service charge added to customers’ bills to pay employees and satisfy the restaurant’s minimum wage and overtime obligations under the Fair Labor Standards Act (FLSA). The employees alleged that the mandatory service charge added to bills was, in fact, a tip and therefore could not be considered towards payment of minimum wage and overtime. The Eleventh Circuit rejected the claim and pointed to the Department of Labor (DOL) regulations stating that the critical features of a tip are whether it is the customer alone who determines whether to give a tip and the amount given. The court also pointed to another DOL regulation that specifically cited a service charge in examples of amounts not considered tips.
Compere v. Nusret Miami, LLC, 28 F.4th 1180 (11th Cir. 2022)
The Fair Labor Standards Act often presents a minefield for employers seeking to comply with nuanced compensation requirements and regulations. Littler has helped employers navigate this minefield and obtained appellate decisions affirming summary judgment wins for clients in cases involving employer compensation practices as well as complex employee classification issues.
In a precedential decision, the Third Circuit Court of Appeals affirmed summary judgment in favor of Littler’s client in a whistleblower retaliation suit under the False Claims Act. “Whistleblowing does not insulate an employee from being fired for misconduct,” the Third Circuit stated, noting that the employee’s complaint of possible fraud by some doctors in the health insurance company’s network of doctors occurred more than a year before his termination for harassment of a co-worker. The court found that the employee’s allegations that the investigation into his misconduct was not sufficiently thorough or that the manager to whom he complained about the potential fraud was one of the people interviewed in the harassment investigation were insufficient to show pretext. As to the investigation, the employee failed to show that it “was so thoroughly flawed that a jury could find it unbelievable.” In rejecting the employee’s claim that the manager to whom he complained about potential fraud used the harassment investigation interview to retaliate against him, the Third Circuit pointed out that there was no evidence that the manager’s discussion with the investigator influenced the investigation or the decision to terminate the employee’s employment. “Speculation is no substitute for evidence,” the court powerfully concluded.
Crosbie v. Highmark Inc., 47 F.4th 140 (3d Cir. 2022)
Littler has succeeded in defeating all types of whistleblowing retaliation cases, including those under the False Claims Act, sometime referred to as the Whistleblower Act. Analyzing and framing the facts and the issues based on the applicable standard of review has enabled Littler to affirm summary judgment on appeal in these types of cases.
NLRA
In a significant win for its client and other unionized employers, Littler succeeded in changing the law in the Third Circuit Court of Appeals by convincing the appellate court to overrule prior Third Circuit precedent and affirm summary judgment for its client, holding that an arbitration provision in a collective bargaining agreement (CBA) did not survive the expiration of the CBA. The Third Circuit cited U.S. Supreme Court precedent applying contract interpretation principles to retiree healthcare benefits clauses in expired union contracts and held that if a specific provision of a CBA does not have its own durational clause, the general duration of the CBA applies. More specifically, the court stated: “[Arbitration provisions are contractual provisions that are not required by the NLRA [National Labor Relations Act] to continue in effect during the negotiation of a new CBA.” Thus, the Third Circuit upheld the district court decision finding that the arbitration provision in the expired union contract, which had no separate durational provision, was also expired and therefore the employer could not be compelled to arbitrate the employees’ grievances.
Pittsburgh Mailers Union Local 22 v. PG Publishing Co., 30 F.4th 184 (3d Cir. 2022)
A hallmark of its practice is Littler’s long-standing and extensive experience in all aspects of labor law. The knowledge baked into our DNA has enabled Littler lawyers to obtain significant wins for unionized employers and develop the law at the appellate level to be more favorable to employers.
Following a jury trial, the Fifth Circuit Court of Appeals upheld the district court’s judgment as a matter of law in the company’s claim for misappropriation of trade secrets by former employees who started a competing business following their separation from employment. In a significant win for Littler’s client, the Fifth Circuit upheld an award of $12.2 million to the company and an injunction prohibiting the former employees from participating in a competing business for a period of two years.
Quantlab Technologies, Limited (BVI) v. Kuharsky, 696 F. App’x 682 (5th Cir. 2017)
In an increasingly competitive business environment, protecting trade secrets is important for employers. Littler’s ability to move swiftly against employees and competitors who misappropriate trade secrets not only provides restitution for our clients, but also discourages future misdeeds.
