Take the Fifth

Designated for publication

• Carter v. Southwest Airlines Co., 23-10008, c/w 23-10536, c/w 23-10836, appeal from N.D. Tex.
  • Clement, J. (Clement, Engelhardt, Wilson) (oral argument), Title VII, employment discrimination, labor law, jury instructions, pleadings amendment
  • Denying petition for en banc rehearing, but granting petition for panel rehearing and substituting a new opinion in place of the panel’s May 8, 2025, opinion; 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 in full the permanent injunction against Southwest and the union from interfering with the religious expression of any Southwest flight attendant online or otherwise; and remanding for additional proceedings; and vacating the contempt order against Southwest for failure to comply with judgment. These bottom-line substantive results remain the same as from the original panel opinion.
  • Southwest Airlines terminated longtime flight attendant Charlene Carter after she sent and posted graphic anti-abortion materials criticizing her union’s participation in the 2017 Women’s March. Carter, a pro-life Christian and former union member, accused Southwest and the Transport Workers Union Local 556 of discriminating against her religious beliefs and retaliating against her anti-union activism, in violation of Title VII of the Civil Rights Act and the Railway Labor Act (RLA). After arbitration upheld her termination under company policies on social media and workplace conduct, Carter sued in federal court. A jury found for Carter, concluding that Southwest and the union had discriminated against her and failed to accommodate her religious practices. The district court reinstated Carter, awarded damages, and issued broad injunctions against further discrimination by both defendants.
  • The Fifth Circuit’s opinion reviews the dispute’s factual and procedural background in detail. Carter had repeatedly criticized union leadership online and sent its president, Audrey Stone, graphic videos and images of aborted fetuses, accusing the union of “supporting murder.” Stone reported the messages as harassing and obscene. Southwest investigated and found partial violations of its social media and harassment policies. It terminated Carter, concluding her posts were offensive and disparaging to employees. Carter’s grievance proceeded through arbitration, where the arbitrator found Southwest had just cause to terminate her. Carter then brought suit under Title VII and the RLA, alleging religious discrimination, retaliation, and breach of the union’s duty of fair representation.
  • The district court held that Carter’s Title VII and RLA retaliation claims could proceed, and after trial, a jury sided with her. It found that Southwest and the union had discriminated against her beliefs and practices, failed to accommodate her religion, and retaliated against her for union-related activity. The court ordered reinstatement, backpay, and a sweeping injunction requiring Southwest and the union to stop discriminating against any flight attendant for religious expression, including social-media statements about abortion. When Southwest’s notice to employees deviated slightly from the court’s prescribed language—stating it “does not discriminate” rather than “may not discriminate”—the court held Southwest in contempt and ordered three company lawyers to attend religious-liberty training with Alliance Defending Freedom.
  • On appeal, the Fifth Circuit parsed Carter’s Title VII theories into three categories: belief-based intentional discrimination, practice-based intentional discrimination, and failure to accommodate religious practice. The court reversed Carter’s verdict on belief-based discrimination, finding insufficient evidence that Southwest acted out of hostility toward her Christian or pro-life beliefs rather than her conduct in sending graphic materials. It affirmed her verdict on practice-based claims, holding that Southwest failed to show an undue hardship in accommodating her expression even under the pre-Groff “more than de minimis” standard—and that no retrial was warranted despite the Supreme Court’s later, stricter “substantial burden” standard. The court also upheld the Title VII verdicts against the union, rejecting its procedural and instructional challenges and finding no abuse of discretion in holding it jointly liable for backpay.
  • Turning to the RLA claims, the court held Carter lacked a federal cause of action against Southwest for retaliation or interference, since post-certification disputes under the RLA require a showing of anti-union animus or a breakdown of the statutory dispute-resolution process—neither of which she proved. It affirmed dismissal of her interference claim and reversed the judgment for her retaliation claim. However, it upheld the jury’s verdict that the union breached its duty of fair representation when Stone, motivated by personal animosity, reported Carter’s messages to the airline in bad faith. That duty, the court emphasized, applies to all employees regardless of union membership status.
  • Finally, the Fifth Circuit vacated the district court’s sweeping injunction and contempt order. It held the injunction was impermissibly vague and overbroad because it effectively ordered the defendants to “obey the law” and applied to all Southwest flight attendants rather than narrowly remedying Carter’s individual injury. As for contempt, while Southwest failed to use the exact “may not discriminate” wording, its notice substantially complied with the order’s substance. The panel agreed that ordering Southwest’s attorneys to attend religious-liberty training was a punitive, not remedial, sanction—exceeding the bounds of civil contempt.

• Harmon v. Collier, 23-40342, appeal from E.D. Tex.
  • Southwick, J. (Dennis, Southwick, Ho) (oral argument), Dennis, J., dissenting in part; Ho, J., dissenting in part; employment discrimination, disability discrimination, damages, sovereign immunity
  • Affirming judgment on jury verdict in favor of former employee on disability discrimination claims, specifically as to Rehabilitation Act claims, but reversing in part as to ADA claims and vacating $1 million damages award, and remanding for further proceedings. In contrast to the opinion in Hershey v. Bossier City from October 7, in which a “per curiam” majority was accompanied by one judge concurring, one judge dissenting in part, and another judge dissenting in part, Judge Southwick’s attributed majority opinion here helpfully sorts out the effect of the two other judges’ partial dissents: “Due to Judge Ho’s concurrence in the judgment except for concluding that the verdict is irreconcilable, and Judge Dennis’s concluding that the verdict is not irreconcilable, this opinion expresses the holding of a majority
  • of the panel on all issues.”
  • The Fifth Circuit reviewed a jury verdict for Kimberly Harmon, a longtime Texas Department of Criminal Justice correctional officer with diabetes, hypertension, and chronic back pain. After a disputed shift change while she was on leave, a tangle of HR missteps over her leave-without-pay (LWOP) balance culminated in her June 2018 separation despite a doctor’s note releasing her to return on June 4 “without restrictions.” Harmon later reapplied, was not rehired, and brought ADA and Rehabilitation Act claims. A jury awarded her $1.8 million ($1 million in wages/benefits and $800,000 in emotional distress), but the district court reduced the judgment to $1 million after Cummings barred emotional-distress damages under the Rehabilitation Act. Defendants appealed on sufficiency, verdict consistency, and damages; the panel applied the usual highly deferential review to the jury’s liability findings.
  • First, the court held sovereign immunity barred the monetary judgment on Harmon’s ADA claims against Executive Director Collier in his official capacity. Earlier in the case injunctive relief had kept those claims alive, but once only money was at issue the ADA claims should have been dismissed. The court thus found a manifest legal error in denying defendants’ Rule 59(e) motion, reversed as to Collier/ADA, and limited the sufficiency review to Rehabilitation Act claims against TDCJ.
  • On those Rehabilitation Act claims, the panel upheld the jury’s findings. Viewing the record in Harmon’s favor, there was sufficient evidence she was a “qualified individual” notwithstanding attendance requirements, given TDCJ’s permissive LWOP practice and testimony paralleling Carmona v. Southwest Airlines. The jury could also find TDCJ failed to engage in the required interactive process and discriminatorily terminated her by cutting off that process based on a rigid application of the LWOP cap—direct evidence of discrimination under Dolgencorp principles, without any need to show animus. The retaliation claim likewise survived based on circumstantial evidence: HR errors, procedure departures, and timing around her accommodation request and doctor’s note supported but-for causation despite the months since her initial EEO complaint.
  • As to the failure-to-rehire claims, the court split the theories. “Cat’s paw” liability is compatible with Rehabilitation Act retaliation (a but-for standard), and the record permitted a finding that Regional Director Werner’s recommendation was a but-for cause of the final no-rehire decision. But cat’s paw does not fit Rehabilitation Act discrimination’s “sole cause” requirement; because the decisionmaker’s independent choice necessarily contributes, the discrimination-based failure-to-rehire theory failed as a matter of law. The panel also rejected defendants’ “irreconcilable verdict” attack: any inconsistency between “sole cause” discrimination and “but-for” retaliation findings was waived by not objecting while the jury was empaneled, and in any event the verdict functioned as a general verdict that could be reconciled or, at minimum, did not meet plain-error criteria.
  • Finally, the court vacated the $1 million backpay award and remanded. The trial record showed the jury likely folded in about $862,000 of projected pension/annuity benefits tied to continued employment through 2029—an amount that, absent present-value proof and equitable findings, constitutes front pay, not backpay. The district court must sort which ERS-related amounts, if any, can be treated as backpay and remit accordingly, giving Harmon the choice to accept remittitur or retry damages. Because the ADA/Collier judgment is reversed, associated fee awards against Collier must be reversed; fee recalculation on the remaining Rehabilitation Act success is left to the district court, with attention to the “degree of success obtained.”
  • Judge Dennis dissented in part, from the majority’s holding that Kimberly Harmon’s Rehabilitation Act claim for failure to rehire fails as a matter of law, contending that the majority’s rejection of cat’s-paw liability under the Act’s “solely by reason of” causation standard was both waived and incorrect. He noted that Texas’s Department of Criminal Justice raised the cat’s-paw argument only after oral argument, violating principles of waiver. Substantively, Judge Dennis contended that neither the Act’s text nor precedent forecloses cat’s-paw liability, since a biased subordinate’s motive can remain the sole operative cause of an adverse action even if filtered through a neutral decisionmaker. Citing Staub v. Proctor Hospital and Teahan v. Metro–North Commuter Railroad, Judge Dennis reasoned that discrimination “solely by reason of” disability encompasses cases where bias drives the decision indirectly. In Harmon’s case, her supervisor’s discriminatory animus, rubber-stamped by a neutral final decisionmaker, sufficed to meet the statute’s causation requirement. Judge Dennis warned that the majority’s contrary rule would let employers evade liability through intermediaries, undermining the Rehabilitation Act’s purpose.
  • Judge Ho also dissented in part, explaining that discrimination and retaliation are distinct legal theories—discrimination requires proof that an adverse employment action was based on a protected characteristic, while retaliation requires proof that it was based on protected activity. Under the Rehabilitation Act, however, the causation standards differ uniquely from other anti-discrimination laws: discrimination must be shown to have occurred “solely” because of disability, whereas retaliation requires a “but for” causal link to protected activity. Because these standards are mutually exclusive, a jury cannot logically find both discrimination “solely” due to disability and retaliation as a “but for” cause of the same employment action. The jury in Kimberly Harmon’s case did just that—finding both causes simultaneously—creating an irreconcilable conflict in the verdict. As a result, Judge Ho dissented in part and would hold that the judgment must be vacated and a new trial ordered.

Unpublished decisions

• U.S. v. Macias-Ordonez, 25-10586, appeal from N.D. Tex.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), criminal, sentencing
  • Affirming conviction and sentence for illegal reentry.

• U.S. v. Arredondo, 24-10886, appeal from N.D. Tex.
  • per curiam (Southwick, Higginson, Wilson) (no oral argument), criminal, sentencing
  • Affirming conviction and 63-month sentence for possession of a firearm by a felon.

• U.S. v. Swarn, 23-11242, appeal from N.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal, sentencing
  • Affirming conviction and 27-month sentence for possession of a firearm by a felon.

• U.S. v. Ard, 25-30221, appeal from W.D. La.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), criminal, sentencing
  • Affirming 228-month sentence on conviction of conspiracy to possess with intent to distribute 50 grams or more of methamphetamine.

• Robles v. Quirch Foods, L.L.C., 25-30278, appeal from E.D. La.
  • per curiam (Dennis, Haynes, Ramirez) (no oral argument), civil
  • Affirming judgment in favor of defendants, with no description of claims or appeal issues involved.

• Taylor v. Ochsner Clinic Foundation, 24-30794, appeal from E.D. La.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), class action, removal
  • Reversing district court’s order to remand putative class action under the Class Action Fairness Act, and remanding to district court to adjudicate the dispute.

• U.S. v. Davy, 24-40088, appeal from S.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal, compassionate release
  • Affirming denial of motion for compassionate release.

• Mulvey v. Liquid Property Group, L.L.C., 25-50385, appeal from W.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), breach of contract, sanctions
  • Affirming judgment for defendant on counter-claims, rejecting plaintiff’s argument that defendant committed fraud on the district court by failing to inform the district court that the Court of Appeals had denied rehearing in a previous appeal in the matter.

• Nexstar Media Group, Inv. v. NLRB, 24-60654, petition for review of NLRB order
  • per curiam (Dennis, Graves, Duncan) (oral argument withdrawn), labor law
  • Enforcing NLRB order.

• Nexstar Media, Inc. v. NLRB, 24-60658, petition for review of NLRB order
  • per curiam (Dennis, Graves, Duncan) (oral argument withdrawn), labor law
  • Enforcing NLRB order.

• Space Exploration Technologies Corp. v. NLRB, 24-50627, c/w Energy Transfer, L.P. v. NLRB, 24-40533, c/w Aunt Bertha v. NLRB, 24-10855, appeal from W.D. Tex.
  • unattributed motion panel, intervention
  • Denying union’s opposed motion to intervene for the purpose of seeking review of this panel’s judgment by filing a petition for writ of certiorari in the Supreme Court.
  • (Regarding panel decision (Wiener, Willett, Duncan; Wiener, J, dissenting in part) affirming district courts’ injunctions of NLRB proceedings on unfair-labor-practice complaints brought against petitioner employers, on basis of unconstitutionality of the NLRB-ALJ structure regarding appointments and removals of NLRB members and ALJs).