Supreme Court Reverses Decision Based on Arguments Never Raised or Briefed by the Parties as Inconsistent with the Adversarial System of Justice

This morning, the Supreme Court issued a per curiam decision of interest to mostly attorneys. Margolin v. Director of the Executive Office for Immigration Review, No. 25-2067 (5-26-26).    I bring it up because this has happened to most of us at one time or another and is extremely frustrating to explain to a client how we get ambushed by a court on issues never raised by our opponent.  The Court reversed the  Fourth Circuit (for the second time in a year) for reversing a judgment on grounds not raised or briefed by any of the parties in the case and not giving the parties an opportunity to file supplemental briefs on the issue.  “Federal courts adhere to the principle of party presentation.  . . .  That principle—the ‘rule that points not argued will not be considered’—distinguishes our adversarial system of justice from an inquisitorial one.  . . .  Because courts are ‘essentially passive instruments of government,’ we rely on the parties to ‘frame the issues for decision’ and decide ‘only the questions presented.’”  In other words, “[f]ederal courts are not ‘roving commissions,’  . . . licensed to ‘sally forth each day looking for wrongs to right. . . ’” 

The Fourth Circuit violated the party presentation principle when it decided “a case different from the one [respondent] advanced.”  . . .  As respondent conceded below, our precedent establishes that Congress, through the CSRA, intended to channel covered claims to the MSPB.  . . . . The parties thus confined their arguments to the narrow question whether respondent’s claims were, in fact, covered. Unsatisfied with rejecting respondent’s arguments on that question, however, the Fourth Circuit sua sponte addressed a much broader one and remanded for further proceedings on that question. The court transformed respondent’s argument that the CSRA did not channel its claims into one that the CSRA might not—in light of current conditions—channel any claims. And the court did so without giving either side a chance to address its theory.  . . .  That “‘drasti[c]’” departure from the principle of party presentation “‘constitute[d] an abuse of discretion.’”  . .  .

 Federal courts are not “roving commissions,”  . . . licensed to “‘sally forth each day looking for wrongs to right,’”  . . .

(bolding added for emphasis).

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Affirms Employer's Summary Judgment on FMLA Interference and Retaliation Claims Where Employee Was on Last Chance Agreement and Never Sought Medical Treatment

Last week, the Sixth Circuit affirmed an employer’s summary judgment on FMLA interference and retaliation claims.  Paris v. McAllister Machinery Co., Inc., No. 25-1726 (6^th Cir. 5-14-26).  The employee could not prevail on the FMLA interference claim because he could not show that he suffered a serious health condition with hospitalization or consulting with a medical provider about his mental distress.   While he could show that his inquiries about taking FMLA leave for his mental distress were protected activities, and were temporally proximate to his termination less than a month later, he could not show that his termination was pretextual when he was already on a Last Chance Agreement and his violation of any policies justified his termination.   Temporal proximity could not satisfy his need to prove the employer’s explanation was pretextual. 

According to the Court’s opinion, the plaintiff employee had a long history of performance problems and was ultimately placed on a Last Chance Agreement in October 2018 to avoid being immediately terminated.  He was then told by his union steward in early December  that he was about to be fired.  His supervisor a few weeks later confronted him about not wearing steel-toes shoes during his shift. He denied the allegation, which prompted the supervisor to try and stomp on his foot to prove his point.  Upset, he called HR and said he needed time off for anxiety, anguish and mental distress.  They discussed him applying for FMLA and he asked for the forms so that he could do so.  However, despite the passage of a month between this event and his termination, he never sought medical care or treatment for his distress and he never submitted a formal request for FMLA leave after receiving the forms upon request.   He was then fired in mid-January 2019 for a variety of infractions over the last few months, including not wearing required protective clothing, overcharging customers,  and general inability to follow proper procedures.

The Court agreed that he could not prevail on an FMLA interference claim because he had never sought medical treatment of any kind for his mental anguish.   Without such treatment or medical consultation, he could not prove that he had a serious health condition and was entitled to take FMLA leave.  No jury could rule in his favor on such a claim, entitling the employer to summary judgment as a matter of law.

The Court also agreed that he could not prevail on his FMLA retaliation claim, but for different reasons than the trial court.  The Court agreed that his inquiries about taking FMLA leave and requesting the FMLA forms constituted protected conduct and that his termination approximately a month later could support a causal connection between the two (i.e., temporal proximity).  However, he could not show that the employer’s explanation for his termination – poor performance and violation of company policy in violation of his Last Chance Agreement – was pretextual.  He had been told by the union before his protected conduct that he was about to be fired for violating the Last Chance Agreement. The employer specified a number of incidents and violations which took place in the few months before his termination that violated his Last Chance Agreement.  “We agree with [the employer] that a single violation of [its] policies following [the plaintiff’s] entry into the LCA would have constituted a valid, nondiscriminatory reason for his termination.”

[He] then failed to carry the burden of showing that any of [the employer’s] reasons were “in reality a pretext to mask discrimination.”  . . . . He failed to do so because he provided no evidence that [its] termination was pretextual.  . . .  And temporal proximity alone cannot support a showing of pretext.  . . .  There is no genuine issue of material fact as to whether [its] termination of [his] employment was pretextual, and [it] was entitled to judgment as a matter of law on [his] FMLA retaliation claim.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Does Not Require Clear and Convincing Evidence for Each Preliminary Injunction Element Unless Required by Statute

Yesterday, the Sixth Circuit reversed the denial of a preliminary injunction sought by an employer against a former employee who allegedly absconded with trade secret information for the benefit of his new employer, a competitor. PCC Airfoils LLC v. Daughterty, No. 25-3794 (6h Cir. 5-19-26).    The Court found that the employer need not prove each element of its claim by clear and convincing evidence in order to obtain preliminary injunctive relief.  “Rather than requiring clear and convincing evidence for each preliminary injunction factor, a court should consider all four factors to determine whether, taken together, they clearly weigh in favor of granting injunctive relief.”

According to the Court’s opinion,  a long time employee who had designed turbine airfoils was promoted to director in 2020 and then demoted a year later during a restructuring.  Frustrated, he later resigned to become a director at a competitor.  He did not have a non-compete agreement.  After his resignation, the employer discovered that he had prepared to print four confidential documents two days before leaving and that he had not left those documents in his office upon his departure.    The employer alleged that he “printed several documents containing trade secrets on his way out the door,”  but it could not prove that he actually printed them.   It sued him and his new employer to prevent him from disclosing trade secrets or working on similar products for the competitor.   The trial court denied the requested injunction on the grounds that the employer had failed to prove each element by clear and convincing evidence.

When faced with requests for a preliminary injunction, district courts consider four factors: (1) the plaintiff’s likelihood of success on the merits; (2) the risk of irreparable harm to the plaintiff in the absence of an injunction; (3) the risk that an injunction will harm others; and (4) the broader public interest. . . .

 . . . Courts, generally speaking, should engage with all four factors in a sliding-scale inquiry. A strong showing as to one factor may “outweigh[]” a weaker showing as to another factor. Winter, 555 U.S. at 23–24. After weighing the four factors against one another, a court may grant a preliminary injunction only if a plaintiff has made “a clear showing that [it] is entitled to such relief.” Id. at 22. All of this means that a movant does not need to establish a quantum of proof, whether a preponderance or clear and convincing evidence, with respect to each factor to be eligible for preliminary relief.

Two qualifications exist. If the plaintiff has “no likelihood of success on the merits,” there is nothing left to balance and the plaintiff’s request for a preliminary injunction must fail regardless of its showing on the other factors. Higuchi Int’l Corp. v. Autoliv ASP, Inc., 103 F.4th 400, 409 (6th Cir. 2024) (quotation omitted). Likewise, a court must reject a plaintiff’s request for a preliminary injunction if it fails to show any risk of irreparable injury.

Measured by these requirements, the district court erred in requiring [the employer] to establish “clear and convincing evidence” with respect to each of the four factors in order to be eligible for preliminary relief.  . . .  While a court should “consider” all four factors, it is a sliding-scale inquiry that turns “as much on the equities of a given case as the substance of the legal issues it presents.”  . . .  The necessary showing for any one factor turns on the strength of the plaintiff’s showings for the other factors. Because generalizations are dangerous when it comes to equity, and because the Supreme Court has cautioned that the clear and convincing evidence standard applies in only a few rare circumstances, . . .  a court may not require every plaintiff to meet a heightened standard of proof for every preliminary injunction factor to qualify for injunctive relief. The district court erred in reaching a contrary conclusion.

 . . . .

 . . . Requiring a “clear showing” to obtain a preliminary injunction—because it is an extraordinary form of relief—is not the same thing as requiring “clear and convincing evidence” to establish each of the four factors to establish eligibility for this relief.

Instead of creating a heightened standard of evidentiary proof for each factor individually, the “clear showing” phrase clarifies that, on balance, the four preliminary injunction factors must clearly weigh in the plaintiff’s favor to qualify for injunctive relief.

The Court agreed that an unpublished Sixth Circuit had applied the clear and convincing evidence standard to all four factors, but was not bound by that precedents or later decisions that relief on it.  The Court also agreed that Ohio state court apply the clear and convincing standard to all four elements, but the federal court procedural rules apply to claims brought in federal court, even if the substantive law is governed by Ohio law.  Further, there was no substantive statute requiring use of a higher standard of proof.

Ohio’s rules of equity generally apply the clear and convincing evidence standard to the four preliminary injunction factors.  . . .  Because one of his claims seeks relief under an Ohio statute, [the defendant employee] contends that Ohio’s preliminary injunction rules should apply. But a federal court applies federal procedural rules, even when deciding cases under state law. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). The preliminary injunction inquiry falls on the procedural side of the line,  . . . requiring us to apply federal, not Ohio, rules. And we treat the preliminary injunction considerations as equitable factors to be weighed, not elements to be proved by clear and convincing evidence.

 . . . .

The clear and convincing evidence standard thus had no role to play in this case. Indeed, as it pertains to the plaintiff’s likelihood of success on the merits, it seems particularly odd to require the plaintiff to prove its case by a higher standard than will be required at trial even before the parties have had the benefit of discovery.  . . .  . . . .

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

DOL Formally Restores 2019 White Collar Exemption Levels Under FLSA

Yesterday, the DOL announced that it was formally revising the federal regulations published in the Code of Federal Regulations to restore the 2019 language after subsequent amendments were vacated by a federal court. "The Department’s technical amendment removes from the Code of Federal Regulations the regulatory language from a 2024 rule that was judicially vacated, and republishes the operative regulations, which were established in a rule the department issued in 2019. The restored regulations require that most exempt executive, administrative, and professional employees be paid a salary of at least $684 per week. The regulations also set a total annual compensation threshold of $107,432 for certain highly compensated employees."

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Denies Paid Leave as Reasonable Accommodation and Rejects FMLA Claim Based on Normal Application of Policy

Yesterday, the Sixth Circuit affirmed an employer’s summary judgment on ADA and FMLA claims brought by a Cincinnati teacher who sought three weeks of paid leave to be trained with a guide dog.   Tumbleson v. Lakota Local School District, No. 25-3548 (6^th Cir. 5-13-26).   The Court held that the ADA did not require the employer to provide her with paid leave and she could not show that she had been treated less favorably than others.  Unpaid leave remains a reasonable accommodation under the ADA which the employer can select without having to prove undue hardship.  It also found that she failed to show that her employer violated the FMLA by providing her with only unpaid leave under its existing policies.  Nonetheless, it reserved the right of future litigants to show otherwise with better arguments.

According to the Court’s opinion, the plaintiff’s medical condition was causing her to progressively lose her sight and hearing.  She had been provided with a number of classroom accommodations and a five-day leave to be assessed for a guide dog.   She continued to excel in her teaching duties.   She later sought three weeks paid leave to be trained with a guide dog, but the employer would only provide her with unpaid leave under the ADA since her request did not involve a “personal illness” under its sick leave or FMLA policies and she was not incapacitated or unable to perform her job duties. After taking the leave and obtaining her guide dog, her physician wrote a letter saying the dog was necessary for medical reasons, but the employer refused to change its decision.  This lawsuit ensued.

The Court rejected her disparate treatment claim under the ADA.    While the Court found that denial of paid leave could constitute an actionable adverse employment action under the ADA, she failed to show that she was treated less favorably than similarly situated co-workers outside her protected class.   This analysis matters both at the prima facie and pretext stages.    In this case, the employer denied the paid sick leave request because she did not fit within the “ due to personal illness” definition in the policy, Ohio law or the collective bargaining agreement.  “Yet she does not offer a single example of a nondisabled employee who received sick leave even when the employee’s proposed absence did not qualify for that leave.”  It was not enough to show that the HR Director routinely granted brief leaves of less than 10 days because she herself had also benefitted from this policy in her initial absence.   Thus, the policy had been neutrally applied and not discriminatorily.  She had also failed to request comparator information during discovery.

The Court also rejected her failure to accommodate claim because she was provided with three weeks of unpaid leave. 

The parties dispute only the “reasonable accommodation” part of this framework. The employee must identify an accommodation and prove its reasonableness.  . . .  How do we decide whether an accommodation is “reasonable”? The ADA’s text makes clear that an accommodation must be work related, meaning that it will allow an employee to “perform the essential functions of the” relevant job. 42 U.S.C. § 12111(8). To qualify as “reasonable,” then, an accommodation must alleviate “a key obstacle” that has prevented the employee from being able to perform an essential job function.  . . .  So courts will find a proposed accommodation unreasonable if an employee can perform the essential job functions and if the employee requests an accommodation for non-work-related reasons.  . . . We thus held that an employer did not have to change an employee’s schedule to allow her to avoid heavy traffic because this burden “exist[ed] outside the work environment.”

Further, even if an employee needs some accommodation, the employer “need not provide the” specific accommodation that the employee wants.  . . .  Rather, the employer has “discretion” to choose from among alternative reasonable accommodations if they all will permit the employee to perform the job.  . . .  The employer thus may pick an accommodation that is “less expensive” or “easier” to implement when given the choice between two reasonable accommodations.  . . .  We have held, for example, that a police department could provide an officer a “desk job” even though the officer preferred an “on the street” job with various restrictions.  . . . . And we have held that a clothing store could provide a warehouse employee with “leave time” even though the employee preferred a transfer to another warehouse role. . . .

This law forecloses [the plaintiff’s] failure-to-accommodate claim. At the outset, it is not obvious that [her] proposed accommodation—that [the school] provide her with paid leave to attend the Leader Dogs training—qualified as a reasonable one. At the time that [she] requested leave, she continued to be an excellent teacher who did a “wonderful job” in the classroom.  . . . . And we see little record evidence to suggest that the lack of a guide dog stood as an “obstacle” that stopped her from completing any “necessary function” of her teaching role.  . . .  Yet we need not decide this issue because [the employer] ultimately gave her an accommodation that allowed her to complete the guide-dog training: unpaid leave.

If [the school’s] unpaid-leave accommodation were reasonable, then, that fact would preclude [her] failure-to-accommodate claim because the ADA did not give her the right to her preferred accommodation.   . . .  Even if we assume that [she] needed a guide dog to work as a teacher, [its] accommodation met our reasonableness test.  . . .  There is no dispute that unpaid leave allowed [her] to attend the Leader Dogs training and bring home Henry. [She] also “offers no evidence linking” paid leave “to the performance of her job.”  . . .  Her doctor’s letter, for example, says nothing about whether that leave should be paid or unpaid. So [the employer] (not[the plaintiff]) had the “ultimate discretion” to choose between the paid-versus-unpaid alternatives because both allowed [her] to perform her job.  . . .  [bolding added for emphasis]

[Plaintiff] responds that unpaid leave was only “partially responsive” to her request because this accommodation required her to go three weeks without pay and caused some financial difficulties for her family.  . . . . But these financial difficulties arose “outside the work environment” and so do not go into the reasonableness calculus.  . . . [Her] financial difficulties are thus “beyond” [the employer’s] “duties to accommodate under the ADA.”  . . .  Indeed, her argument has no stopping point. The ADA says that giving an employee a “part-time” schedule can qualify as a reasonable accommodation. See 42 U.S.C. § 12111(9)(B). Under [the plaintiff’s] view, if this employee did not have the financial means to work only part time, the ADA would require the employer to provide full-time pay for the part-time work. The rule requiring an accommodation to be for work-related reasons avoids this result.  . . . . [bolding added for emphasis]

The Court rejected the plaintiff’s argument that the employer was required to show that paid leave would be an undue hardship.  “That fact is true but irrelevant.”

True, an employer need not provide a reasonable accommodation if it “would impose an undue hardship on the” employer’s operations. 42 U.S.C. § 12112(5)(A). In other words, even if paid leave were the only reasonable accommodation, Lakota would not have to provide that leave if it would cause this hardship . . .  But we need not reach this hardship question because we resolve the appeal on a distinct element. The record proves that two different accommodations—paid leave and unpaid leave—were both reasonable. In that scenario, Lakota had the “ultimate discretion” to choose the “less expensive” option even if the more expensive one would not have posed an excessive hardship.  . . .  In sum, because unpaid leave allowed [the plaintiff] to obtain her guide dog, [the employer] met its obligation to provide a reasonable accommodation. The ADA required nothing more. [bolding added for emphasis]

The Court also rejected her FMLA claim.  “Although the FMLA requires employers to grant leave, it does not require them to pay the employee while off work. Rather, the FMLA presumptively allows employers to treat the required leave as unpaid.”

That said, the law gives employees the right “to substitute any of [their] accrued paid vacation leave, personal leave, or medical or sick leave” for FMLA leave.  . . .  But it then makes clear that “nothing in [the FMLA’s general rules] shall require an employer to provide paid sick leave or paid medical leave in any situation in which such employer would not normally provide any such paid leave.” Id. To obtain paid leave, then, the employee must satisfy “the additional requirements in an employer’s paid leave policy[.]”

The Court observed that there were questions about whether the plaintiff even qualified for FMLA leave because, despite the serious health condition, she could still teach and it was her desire to attend training in Michigan that she sought leave.   The plaintiff did not address these issues, so the Court chose not to address them.    Instead, it rejected her argument that she was entitled to paid leave under the school’s policy when it did not normally provide such leave in similar circumstances.

To obtain paid leave under the FMLA, [the plaintiff] needed to show that [the employer] “normally provide[d]” this leave for those in her “situation[.]” Id. § 2612(d)(2)(B). But [the HR Director] testified that the guide-dog training did not fall within “the definition of sick leave” in the Ohio Revised Code, the collective bargaining agreement, or the school board’s sick-leave policy.  . . . . The district court thus held that [she] did not qualify for paid leave under the FMLA because she did not qualify for it under [the employer’s] sick-leave policy.

The Court rejected the argument that because the policy and statute did not define “due to personal illness” that this meant that it must be interpreted to incorporate guide dog training.  The Court instead agreed with the District Court that “due to personal illness” should be given its ordinary meaning.   While the symptoms of her serious medical condition could constitute a personal illness,  obtaining training when she was not incapacitated arguably could not.  Because, again, the plaintiff failed to argue this issue [that she required the training because of her serious health condition], thus giving the employer the opportunity to respond, the Court refused to raise the issue on its own initiative.   Nonetheless, it pointed out that this was an issue which could be argued in the future by other litigants. 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.