Take the Fifth

Designated for publication

• Carter v. Local 556, Transport Workers Union of America, 23-10008, c/w Carter v. Southwest Airlines Co., 23-10836, appeal from N.D. Tex.
  • Clement, J. (Clement, Engelhardt, Wilson), Title VII, employment discrimination, labor law, jury instructions, pleadings amendment
  • Reversing the denial of Southwest’s motion for judgment as a matter of law on employee’s belief-based Title VII claim and RLA retaliation claim and remanding with instructions for the district court to enter judgment for Southwest; affirming the judgment against Southwest on employee’s practice-based Title VII claims; affirming the dismissal of employee’s RLA interference claim against Southwest; affirming the judgment against the union on all claims; vacating the permanent injunction againt Southwest and the union from interfering with the religious expression of any Southwest flight attendant online or otherwise in full; and remanding for additional proceedings; and vacating the contempt order against Southwest for failure to comply with judgment.
  • The Court analyzed whether Southwest and the Union violated Title VII by distinguishing between religious belief and religious practice claims, as required by the statute’s plain text. Under Title VII, plaintiffs can bring three types of religion-based claims: intentional discrimination based on belief (which cannot be defended with an undue hardship argument), intentional discrimination based on practice, and failure to accommodate a religious practice (both of which allow an undue hardship defense). Carter alleged all three types but failed to provide direct evidence that her pro-life Christian beliefs motivated her termination. Instead, the evidence suggested her discharge stemmed from actions related to those beliefs. The Court rejected Carter’s attempt to collapse belief and practice into a single analysis, noting that doing so would effectively nullify the undue hardship defense and conflict with established legal precedent, such as in the Tagore case involving a Sikh employee.
  • Carter’s practice-based claims hinge on whether Southwest could prove that accommodating her religious expression—specifically her social media activity that violated company policy—would have caused undue hardship. Title VII requires employers to accommodate religious practices unless doing so imposes more than a minimal (de minimis) cost. At the time of Carter’s trial, Fifth Circuit precedent defined “undue hardship” broadly, allowing employers to claim even the potential for minor workplace disruptions—such as reduced morale or scheduling complications—as sufficient. However, employee bias or hostility toward religious practices has never been a valid basis for denying accommodation under Title VII. While some employee discomfort must be tolerated, Title VII does not require employers to accept conduct that demeans or degrades others in the workplace.
  • Since Carter’s trial, the legal standard for proving “undue hardship” under Title VII has shifted significantly. In Groff v. DeJoy, the Supreme Court rejected the long-standing “de minimis” test and clarified that employers must now demonstrate that accommodating a religious practice would impose substantial increased costs relative to their business operations. Courts must weigh all relevant factors, including the nature and size of the business and the actual impact of the accommodation. Impacts on coworkers can only support an undue hardship claim if they substantially burden the employer’s operations and cannot stem from religious bias. Although this change occurred after Carter’s trial, the court concluded that fairness does not warrant a new trial for Southwest because it had a full opportunity to present evidence under the previous, more lenient standard. Since Southwest already offered substantial evidence about workplace morale impacts, it is unlikely stronger evidence was withheld, and thus, the higher post-Groff burden alone does not justify retrial.
  • Although the Union made a verbal Rule 50(a) motion at the close of evidence, it failed to file the required post-trial Rule 50(b) motion after the jury verdict, which bars it from raising sufficiency-of-the-evidence arguments on appeal. While legal issues resolved at summary judgment can be preserved without a Rule 50(b) motion, the Union’s summary judgment motion focused on evidentiary matters and did not raise the key legal distinction between belief- and practice-based Title VII claims. Because the Union’s argument ultimately concerns whether sufficient evidence supported a belief-based discrimination claim—a factual question—appellate courts cannot review it without the proper post-trial motion. Moreover, Southwest’s post-trial motion cannot be used to preserve the Union’s separate argument, as each party is independently responsible for meeting procedural requirements.
  • The Union argued that the jury should have been instructed that Carter’s religious practice could lose Title VII protection if it caused the Union undue hardship, but the district court rejected this because the Union had not raised the defense prior to trial. Although the Union attempted to amend its answer during trial to add the undue hardship defense, the court denied the motion due to undue delay, citing a lack of explanation for why the defense was not raised in the five years leading up to trial. The court also sought consistency, having previously denied Carter a late amendment request. While there are legal bases for applying the undue hardship defense to unions, and the defense has long been recognized, the Union’s delay was not justified by any change in law or unforeseen developments, making the district court’s denial of the amendment appropriate.
  • In her cross-appeal, Carter claimed that her Facebook activity constituted labor-organizing protected under the Railway Labor Act (RLA), which safeguards employees’ rights to organize and bargain without interference. While the RLA generally mandates that labor disputes be resolved through mediation and arbitration rather than federal court, it distinguishes between “major” disputes—related to collective bargaining—and “minor” disputes—concerning interpretation of existing agreements. The Fifth Circuit found the district court mistakenly categorized Carter’s post-certification dispute with Southwest as a major dispute. Although the court did not definitively classify the dispute as minor, it held that federal courts could hear non-major disputes if the RLA’s dispute-resolution process was unavailable or if anti-union animus was involved. Carter alleged retaliation, interference with organizing, and breach of fair representation, but the court noted she bypassed the established arbitration process under the collective bargaining agreement, which she could have used—even as a non-union member—to assert her claims. Because she failed to do so, the court found she could not reassert those claims in federal court.
  • The court analyzed whether the district court’s injunction against the Union was void for vagueness and overbreadth. Injunctions must provide clear, specific guidance to ensure those bound by them can understand and comply without confusion or risk of unfair punishment. In this case, the injunction failed to meet that standard, as it vaguely prohibited discrimination and required “reasonable accommodation” without defining the terms or offering concrete directives. Moreover, the injunction was overly broad, extending its scope beyond the plaintiff Carter’s specific claims to include all Southwest flight attendants, thus exceeding the legal basis of the lawsuit. Such expansive judicial action contradicts the constitutional role of federal courts, which are limited to resolving particular cases and controversies, not issuing generalized mandates to broad groups of non-parties.

• U.S. v. Wickware, 24-10519, appeal from N.D. Tex.
  • per curiam (Stewart, Clement, Willett), criminal, sentencing
  • Affirming 24-month sentence on conviction of possession of a firearm by a felon.
  • The 2023 amendment to the Sentencing Guidelines, which introduced a specific definition of “robbery,” constitutes an intervening change in law that renders prior Fifth Circuit precedents like Santiesteban-Hernandez and Adair non-controlling in this case.
  • Upon comparison, the elements of Texas robbery under § 29.02 are the same as or narrower than those of the amended Guidelines’ definition of robbery, meaning a conviction under § 29.02 still qualifies as a “crime of violence” under the Guidelines.

• U.S. v. August, 24-30457, appeal from W.D. La.
  • Jones, J. (King, Jones, Oldham), criminal, search and seizure
  • Affirming conviction of possession of a firearm by a felon, upholding denial of motion to suppress.
  • The Court upheld warrantless protective sweeps of both the backyard and home, finding they were justified by articulable safety concerns—including spent shell casings, a recent vehicle arrival, August’s inconsistent behavior, and the possibility of armed individuals nearby—thus meeting legal requirements for such sweeps.
  • The Court found that even if some evidence was arguably obtained unlawfully (like the magazine clip and ammunition), it did not taint the search warrant because the remaining, lawfully obtained information (e.g., eyewitness reports and shell casings) established probable cause independently.
  • The Court applied a deferential standard to the district court’s factual findings (unless clearly erroneous) but reviewed legal determinations, such as probable cause and reasonable suspicion, de novo—ultimately affirming that law enforcement’s actions were lawful under both doctrines.

• U.S. v. Russell, 24-50075, appeal from W.D. Tex.
  • Smith, J. (Smith, Clement, Duncan), criminal, sentencing
  • Affirming 115-month sentence on conviction of possession of a firearm by a felon.
  • Russell challenged his sentence on the grounds that his 2017 Tennessee aggravated-assault conviction was improperly classified as a Crime of Violence (COV), but since he did not object at trial, the Court applied plain error review and found no clear or obvious error.
  • Under the Sentencing Guidelines, a COV must involve physical force or match a generic, enumerated offense like aggravated assault; Russell argued Tennessee’s definition of aggravated assault includes mental harm alone and thus falls outside the guideline definition—but failed to show real-world application of the statute to such conduct. The Court rejected Russell’s argument, finding no supporting Tennessee case law demonstrating that aggravated assault has been applied to purely mental harm, and thus upheld the conviction’s classification as a COV under the sentencing guidelines.

• Argueta v. Bondi, 23-60080, petition for review of BIA order
  • Wilson, J. (Graves, Higginson, Wilson), immigration
  • Denying Salvadoran citizen’s petition for review of BIA’s removability determination and denial of motion to reconsider.
  • The Court reviewed Sandoval Argueta’s case and upheld the BIA’s determination that his conviction under Texas Penal Code § 33.021(c) constitutes a “crime of child abuse” for deportation purposes, even if the victim was not an actual minor.
  • The BIA’s denial of Sandoval Argueta’s second motion to reconsider his removability was not an abuse of discretion, as it complied with legal standards and the statutory limits on reconsideration motions.

Unpublished opinions

• U.S. v. Coleman, 24-10975, appeal from N.D. Tex.
  • per curiam (Wiener, Ho, Ramirez), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Ulloa-Menjivar, 24-20548, appeal from S.D. Tex.
  • per curiam (King, Southwick, Engelhardt), criminal
  • Granting Anders motion to withdraw, and dismissing, appeal.

• U.S. v. Ladner, 23-30889, appeal from E.D. La.
  • per curiam (Wiener, Ho, Ramirez), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Gibson, 22-40313, appeal from E.D. Tex.
  • per curiam (Higginson, Ho, Wilson), criminal
  • Affirming conviction of possession of a firearm by a felon.

• U.S. v. Garza, 23-40490, appeal from S.D. Tex.
  • per curiam (Wiener, Ho, Ramirez), criminal, sentencing
  • Affirming sentence on conviction of Hobbs Act robbery.

• U.S. v. Medrano-Garcia, 24-40608, appeal from S.D. Tex.
  • per curiam (Haynes, Higginson, Douglas), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Zuniga, 24-50353, appeal from W.D. Tex.
  • per curiam (Haynes, Higginson, Douglas), criminal
  • Affirming conviction of illegal reentry.

• Smith v. Aegon USA, L.L.C., 24-60115, appeal from S.D. Miss.
  • per curiam (Dennis, Haynes, Ramirez), insurance, personal jurisdiction
  • Affirming dismissal of putative class action arising from delay in payment of insurance claim, for lack of personal jurisdiction and failure to state a claim.

• Winkley v. Blackwell, 24-60244, appeal from S.D. Miss.
  • per curiam (Richman, Douglas, Ramirez), qualified immunity
  • Affirming denial of summary judgment to deputy defendant for qualified immunity arising from fatal shooting.

• Gamero-Hernandez v. Bondi, 24-60484, petition for review of BIA order
  • per curiam (Wiener, Ho, Ramirez), immigration
  • Denying Honduran citizen’s petition for review of BIA order affirming IJ’s denial of withholding of removal.