Littler Lightbulb – October 2025 Employment Appellate Roundup

Seventh Circuit Affirms Summary Judgment for University in Professor’s Race Bias Suit

Saud v. DePaul University, 154 F.4th 563 (7th Cir. 2025), involved a former university professor’s claim of race discrimination in violation of 42 U.S.C. § 1981 based on the university’s decisions (1) not to rehire him as an adjunct professor and (2) deeming him ineligible for future employment. In response, the university argued it based its decisions on (1) its investigation of allegations in a separate lawsuit filed by one of the professor’s students claiming he improperly induced her to have sexual relations, (2) two additional reports of potential misconduct, (3) low projected enrollment in the professor’s courses, and (4) the plaintiff’s request for a higher salary than the department had authorized for the adjunct position. The district court granted the university’s motion for summary judgment, and the plaintiff appealed.

On appeal, the Seventh Circuit noted, “[t]he same legal standard applies to claims of racial discrimination under Title VII [and] Section[] 1981 ….” Under both statutes, the plaintiff must prove, among other things, they were treated less favorably than similarly situated employees who were not members of the protected class, and the employer’s explanation for its decision was pretextual. 

As to the decision not to rehire him, the plaintiff claimed another professor was treated more favorably following an anonymous online allegation that he had engaged in sexual assault. The Seventh Circuit rejected the argument, finding the other professor was not a valid comparator. For one thing, while the plaintiff had admitted to having sex with the woman who filed the sexual harassment lawsuit, the university could not gather any information about the allegations against the purported comparator, including the identity of the anonymous poster. In addition, the university made its decision regarding the plaintiff only after the lawsuit against him was filed. The Seventh Circuit also rejected the plaintiff’s argument that the employer’s other communicated reasons for its decisions, i.e., low projected course enrollments and the plaintiff’s salary request, were shifting and inconsistent. The Seventh Circuit explained that “[w]here an employer relies on multiple reasons for the termination, its failure to address all of the reasons in each communication about the employee is not enough to show contradictions or shifts in rationales that suggest pretext.”

As to the plaintiff’s claims regarding his ineligibility for future employment, the comparator that plaintiff claimed was treated more favorably had, in fact, also been found ineligible for employment following complaints about “verbal exchanges … of an explicit sexual nature” with a student no longer enrolled in his course. 

Finally, the Seventh Circuit held that the plaintiff failed to establish pretext through his general assertions of institutional bias because no factual basis existed for any of his other allegations. Affirming summary judgment for the university, the Seventh Circuit concluded that “these generalized claims do not ‘undercut the specific justifications given by [the university]’ for [the plaintiff’s] termination.”

Ninth Circuit Affirms Dismissal of Claims by More than 80 Employees Terminated for Refusing COVID-19 Vaccinations

In Curtis v. Inslee, 154 F.4th 678 (9th Cir. 2025), more than 80 employees who were terminated after they refused to comply with a healthcare system’s COVID-19 vaccination policy filed suit claiming their employer violated their rights by penalizing them for refusing a vaccine that was not yet FDA-approved and not adequately informing the employees of their option to refuse administration of the vaccine. The employees asserted claims under 42 U.S.C. § 1983 as well as various constitutional, statutory, and state law contract and tort claims. The district court dismissed all claims for failure to state a claim, and the plaintiffs appealed.

Affirming the district court’s dismissal, the Ninth Circuit found that none of the plaintiffs’ “wide-ranging sources of purported rights supports their federal claims.” As to the plaintiffs’ Section 1983 non-constitutional and statutory claims, the court stated that none of the employees’ claims alleges “a specific and definite right enforceable by Employees under Section 1983.” 

The Ninth Circuit similarly upheld dismissal of the plaintiffs’ constitutional claims. In examining the plaintiffs’ substantive due process claims under the Fourteenth Amendment, the Ninth Circuit noted its recent decision in Health Freedom Def. Fund, Inc. v. Carvalho, 148 F.4th 1020, 1029 (9th Cir. 2025), in which it held that that the “constitutionality of a vaccine mandate . . . turns on what reasonable legislative and executive decisionmakers could have rationally concluded about whether a vaccine protects the public’s health and safety.” Citing the Supreme Court’s decision in Jacobson v. Massachusetts, 197 U.S. 11 (1905), the court stated that under longstanding Supreme Court precedent, penalties for refusing vaccination are legitimately justified by public health concerns. The Ninth Circuit also upheld the district court’s decision declining to exercise supplemental jurisdiction over the plaintiffs’ state-law claims.

Fourth Circuit Affirms Summary Judgment for Hospital in Title VII Religious Discrimination Claim by Employee Dismissed for COVID-19 Vaccine Refusal

In another case involving an employee whose employment was terminated for refusal to be vaccinated against COVID-19, Hall v. Sheppard Pratt Health System, ___ F.4th ___ (4th Cir. Oct. 21, 2025), the plaintiff worked as an admissions coordinator at a hospital’s eating disorders center and had close contact with co-workers and patients, who were particularly susceptible to the effects of COVID-19. The hospital granted religious exemptions from its vaccination requirements “based on a sincerely held religious belief” but denied requests if it “determine[d] that the risk posed by an unvaccinated staff member [could not] be mitigated and/or constitute[d] an ‘undue hardship’ under state and federal law.” In this case, the hospital denied the plaintiff’s request because her role could not be performed absent in-person interaction, but told her she could apply for other positions that could be performed remotely without being vaccinated. The plaintiff never did so and the hospital terminated her employment.

The plaintiff filed suit under Title VII, claiming the hospital discriminated against her because of her religious beliefs. The district court granted summary judgment for the employer and the plaintiff appealed. On appeal, the Fourth Circuit examined the standards for undue hardship under Title VII and cited Supreme Court precedent for the proposition that “employers can more easily show undue hardship when considering religious-accommodation requests under Title VII than when considering medical-accommodation requests under the ADA.” The court further noted that the undue hardship of having unvaccinated employees is particularly acute in a health care setting, where “the employer’s business involves the protection of lives.” Applying these standards to the evidence in the case, the court found that the hospital “put forth undisputed evidence that granting [the plaintiff] a religious exemption would have resulted in the ‘substantial increased costs’ that would result from outbreaks in the hospital, replacement of ill employees with higher-cost temporary employees, and acute threats to the physical safety of [the hospital’s] staff and patients.” Accordingly, the Fourth Circuit affirmed summary judgment.

Third Circuit Approves Releases of FLSA Claims in Rule 23 Opt-Out Settlement

In Lundeen v. 10 West Ferry Street Operations LLC d/b/a Logan Inn, ___ F.4th ___ (3d Cir. Oct. 16, 2025), a case of first impression, the Third Circuit addressed the scope of releases in Fair Labor Standards Act (FLSA) collective actions under Rule 23 of the Federal Rules of Civil Procedure. The case involved settlement of claims that the employer violated the FLSA and the Pennsylvania Minimum Wage Act by permitting a salaried supervisor to share in a restaurant’s tip pool intended for bartenders. The settlement agreement provided that all class members would receive notice and an opportunity to opt out of the settlement. Those who did not opt out would receive a pro rata share of the settlement sums in exchange for a release of wage claims, including unasserted FLSA claims. The district court denied preliminary approval of the settlement, finding that FLSA claims cannot be released in an opt-out class action unless the employee affirmatively opts in.

The district court then denied the employer’s motion for reconsideration but certified the following question to the Third Circuit on interlocutory appeal: “[W]hether Section 216(b) of the Fair Labor Standards Act permits a party to obtain the release of unasserted FLSA claims through a Rule 23(b)(3) opt-out class settlement.” Examining the language of the statute, the Third Circuit stated “§ 216(b) requires written consent to litigate an FLSA claim, but it says nothing about waiver of such a claim in settlement.” Accordingly, the court held that the statute contains no language prohibiting the release of unasserted FLSA claims in a court-approved Rule 23 settlement. However, as the Third Circuit noted, “whether judges can approve opt-out settlements that release FLSA claims is a different inquiry from whether judges should do so…. Whether the settlement is ‘fair, reasonable, and adequate,’ [is] subject to the District Court’s considerable discretion.” Thus, the Third Circuit vacated the district court’s order denying reconsideration and remanded the case to the district court for further proceedings.

Tenth Circuit Affirms Summary Judgment for Employer in Veteran’s Disability Bias Suit

The plaintiff in Sellman v. Aviation Training Consulting LLC, __ F.4th __ (10th Cir. 2025), claimed that his former employer violated the Americans with Disabilities Act (ADA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA) by refusing to renew his employment contract because he is a disabled veteran and in retaliation for complaining to human resources about disparaging comments his supervisor made about his disability. The plaintiff appealed the district court’s decision granting summary judgment to the employer on all his claims. 

On appeal, the Tenth Circuit found the evidence supported the employer’s reason for its decision—the plaintiff’s inadequate performance—and that the plaintiff failed to present evidence of pretext. Two of the three decisionmakers did not even know about the plaintiff’s disability rating, or his complaint about his supervisor’s remarks. In response to the employer’s evidence, the plaintiff asserted a “cat’s-paw” theory of discrimination, which requires a plaintiff to demonstrate a genuine issue of material fact exists that “(1) the subordinate took action motivated by discriminatory or retaliatory animus; (2) the subordinate intended the action to cause an adverse employment action; and (3) the subordinate’s action was the but-for cause of the intended adverse employment action.” Here, the plaintiff claimed his supervisor was biased against him because of his disability and had a motive to retaliate against him because of his complaint to HR. According to the plaintiff, the supervisor’s motivation caused the executive officers’ decision not to renew the plaintiff’s contract. Rejecting this claim with respect to the plaintiff’s ADA claims, the court found the plaintiff failed to satisfy the cat’s paw theory requirement that his disability was the but-for cause of the adverse employment action.

The Tenth Circuit also affirmed summary judgment on the plaintiff’s USERRA claim, explaining that while generally “USERRA should be broadly construed in favor of military service members,” the plaintiff was asking the court to recognize a USERRA claim that fell outside the relevant statutory language.

Fifth Circuit Denies Award of Thryv Damages in Unfair Labor Practices Claim

In Hiran Management v. National Labor Relations Board, __ F.4th ___ (5th Cir. Oct. 31, 2025), the Fifth Circuit focused its opinion on whether the National Labor Relations Board (NLRB) has authority to award damages “for any loss of earnings and other benefits, and for any other direct or foreseeable pecuniary harms suffered as a result” of an action for unfair labor practices. The case involved an appeal of the NLRB’s award of damages to workers who had been dismissed after they went on strike. Noting the circuit split on whether the Board has authority to award damages for “all foreseeable harms,” the Fifth Circuit sided with the Third Circuit in holding that “the NLRA permits the NLRB to award only equitable, not legal, relief.” 

The court rejected the Board’s assertion that the award of monetary damages for an expanded range of employee losses in addition to backpay, following Thryv, Inc., 372 NLRB No. 22 (2022), was equitable relief. On the contrary, the Fifth Circuit stated, Thryv remedies are typically dealt with in tort suits for compensatory damages and are not equitable relief. “If the Board were correct,” the court held, “then all instances of compensatory damages could qualify as an equitable remedy. In demonstrating no principled distinction between legal and equitable relief, the Board’s result diverges sharply from the well-established principle that compensatory damages are a form of legal relief.”