The Tennessee Supreme Court on Aug. 21 suspended 25 attorneys for failure to pay the annual registration fee; 13 of whom also failed to file proof that client funds are held in an IOLTA-compliant account. View the fee suspension order and IOLTA suspension order. Three lawyers have been reinstated since the list came out: two who had been suspended in 2024 and one in 2025. See the list of all lawyers suspended and reinstated for fee and IOLTA violations in 2025 or access all administrative suspensions dating back to 2005.

Introduction

One could argue that it is easier for a camel to pass through the eye of a needle than for a faculty member of a religious school to successfully prosecute an employment discrimination claim. Why? In the words of James Madison, “the scrupulous policy of the Constitution” is to guard against “political interference with religious affairs.”[1] Stated in more contemporary terms, the “ministerial exception” precludes courts from adjudicating claims brought against religious institutions by “key employees.”

The “ministerial exception” is a doctrine derived from the First and Fourteenth Amendments to the Constitution. The amendments elevate the interests of “religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission” above society’s interests in the enforcement of employment discrimination laws.[2]

The Supreme Court has long protected the right of churches and other religious institutions to decide matters of faith, doctrine and internal governance.[3] The modern “ministerial exception” recognizes that the “power to appoint and remove ministers and other church officials is the power to control the church.”[4] Accordingly, the First and Fourteenth Amendments dictate that courts recognize the autonomy of religious institutions to select individuals who will play key roles in advancing the institution’s religious mission.

In Pulsifer v. Westshore Christian Academy,[5] the 6th Circuit Court of Appeals examined whether Aaron Pulsifer, a dean of students and assistant principal for a private Christian elementary school in Muskegon Heights, Michigan, could maintain employment discrimination claims against his employer.[6] Pulsifer sued Westshore Christian Academy (WCA) under a variety of state and federal employment laws. The district court granted summary judgment to WCA, holding that the federal Constitution “precludes review of the Academy’s employment decisions vis-à-vis Pulsifer because he performed important religious functions at the school.”[7] In short, the “ministerial exception” doomed Pulsifer’s claims, and Pulsifer appealed.

Case Summary

According to its founder, WCA was established to “bring affordable Christian education to inner city youth in the Muskegon area,” and WCA viewed its educational role as central to the religious development of students.[8] WCA terminated Pulsifer’s employment in August of 2022.[9]  Pulsifer, an African American male, claimed that his employment was terminated by WCA in retaliation for his having complained about discriminatory pay practices and for his having reported negative information about WCA’s primary financial supporter.[10] Moreover, Pulsifer argued that the “ministerial exception” did not apply to him because his role at the school required many routine secular administrative tasks, e.g., scheduling, student discipline and record keeping.[11]  WCA argued that the “ministerial exception” did apply to Pulsifer’s role because he performed a number of vital religious functions.

To answer the question of whether Pulsifer fell within the “ministerial exception,” the court looked to two Supreme Court cases for guidance — Hosanna-Tabor[12] and Our Lady of Guadalupe[13]. These cases provide several rules that are important to the “ministerial exception” analysis. The first rule is that the “ministerial exception” is not limited to churches.[14] Schools and other institutions whose missions involve religious education are covered because of their obvious religious characteristics. Second, the exception applies to more than “ministers,” or those with similar titles, and extends to other employees “who play an important role in advancing the institution’s religious mission.”[15] Third, while an employee’s title and training may be relevant, “[w]hat matters, at bottom, is what an employee does.”[16] In short, an employee’s inclusion within the exception turns on whether he or she is involved in religious functions, such as leading worship, teaching the faith, or providing pastoral care and guidance.

Applying these rules to Pulsifer’s case, the court noted that the school’s mission statement articulated the goal of helping students “grow in their relationship with Christ, become life-long learners, to actively serve their community, and pursue Christian leaderships.”[17] Thus, there was no dispute that WCA was the type of religious entity that could avail itself of the “ministerial exception.”

In his role as Dean of Students/Assistant Principal, Pulsifer was expected to guide the students’ spiritual formation and be a “spiritual leader.”[18] In addition, Pulsifer led morning devotions for staff meetings and school board meetings, and he was in charge of two WCA after-school religious youth programs, which were public-facing efforts designed to convey the school’s religious message.[19] Finally, Pulsifer played a critical role in conducting communal prayer with board members and staff. In short, these vital religious functions placed Pulsifer’s position within the “ministerial exception.”[20]

Finally, the court found Pulsifer’s argument — that he performed duties typical of secular administrators — to be unpersuasive.[21] Like the elementary school teachers in Our Lady of Guadalupe, who fell within the ministerial exception despite the fact that they performed many of the same functions as secular teachers, Pulsifer’s secular activities did not determine whether his role fell within the “ministerial exception.” Here, because Pulsifer performed important religious functions, the “ministerial exception” did apply, and the 6th Circuit affirmed the district court’s order granting summary judgment.[22] 

Harder Questions

The application of the “ministerial exception” to Pulsifer, who served as the dean of students at a private Christian school, simply was not much of a stretch for the court. However, one could imagine a number of scenarios that would present more difficult calls. For example, would a football coach at a Christian school whose only religious activity was leading the team in the rote recitation of the “Lord’s Prayer” qualify for the exemption? Do employees who are engaged exclusively in the technical side of worship production (e.g., lights, sound, slides, instruments, cameras, Facebook feeds) play key roles in advancing the mission and message of a religious institution? Would it matter to the “ministerial exception” analysis if the claimant was known to not hold any religious beliefs?

Tips for Practitioners

Pulsifer underscores how important it can be for a religious institution to formalize a mission statement that makes the religious characteristics of the enterprise obvious. In addition, job descriptions and offer letters that document religious responsibilities can be helpful in establishing the “ministerial exception” as a defense to employment claims.

Jason Ensley is a past chair of the TBA’s Labor & Employment Section Executive Council. He is employed as labor and employment counsel for a global transportation and logistics company.  He serves on the board of elders at his church and has always been fascinated with the “ministerial exception.” 

In just the last seven months, since President Donald Trump has taken office, the country has seen a proliferation of ICE (Immigration & Customs Enforcement) Encounters - I-9 audits, raids and warrants. In this article, I will explore the difference among the various encounters and how to prepare and respond to each.

Introduction

In Trump 1.0, we saw between 6,000 and 6,500 ICE I-9 audits in the two fiscal years where there were ICE audits. In FY2020, their goal was 12,000, but COVID destroyed that target. During the same two-year period, there were approximately 50 ICE raids, with the first one taking place in Bean Station, Tennessee, in April 2018. According to Border Czar Tom Homan, ICE’s goal in FY2025 is 12,000 to 15,000 ICE I-9 audits. To date, ICE has not released any data on the number of audits or raids.

Raids have returned after their discontinuance from March 2020 to January 2025. It is unknown how many ICE raids have been conducted in the last seven months, but the number is not as high as you might think because many of the ICE enforcement actions seemingly reported in the press are not actual raids. Rather, many of the actions are the service of an agency warrant, “Knock and Talk” actions without a warrant, and ICE I-9 audits with ICE agents wearing tactical gear. An agency warrant is signed by an official of the Department of Homeland Security and does not give ICE the authority to enter non-public areas of a business. If an employer receives such an agency warrant, an employer can or cannot give consent to locate the employee on premises. That decision is one for the employer. There is no right or wrong answer. “Knock and Talk” is when ICE enters the premises with a request to look around the facility. If an employer declines to consent, ICE cannot enter non-public areas.

Raids

In a worksite raid (also referred to as a targeted enforcement operation), ICE is primarily looking for criminal activity related to the employment of undocumented workers and the undocumented workers themselves. Raids are the culmination of months-long investigation into the targeted employer. Often, ICE uses a confidential informant to provide incriminating evidence.

Many employers believe they are a potential target of a raid. However, after one reviews the circumstances causing raids, most will determine they are not a likely target of a raid. To obtain a judicial search warrant signed by a U.S. District Court judge or a magistrate judge, ICE must disclose facts giving rise to a finding of probable cause. To seek such a warrant, an ICE agent must draft an Application for Search Warrant wherein all pertinent information is disclosed concerning the need for a search warrant. An employer’s location in a sanctuary city with a large Hispanic population is insufficient to be issued a search warrant. To date, there have been raids in many states, including Alabama, California, Florida, Nebraska, North Carolina, Texas and Washington.

As a result of raids, many employers will face criminal liability, including knowingly hiring or employing an undocumented worker, tax and/or wire fraud, and harboring undocumented workers. To date, Trump 2.0 has brought criminal charges against several employers and many more are expected in the next few years.

ICE I-9 Audits

Historically, this has been the most likely ICE enforcement action. In an I-9 audit, ICE agents physically deliver a Notice of Inspection and subpoena to an employer, who then has a minimum of three days to provide the requested and subpoena documents. Often, one can obtain a short extension of time — from three to 10 days, for the production of the I-9 forms. ICE does not have statutory authority to demand production of the non-I-9 items within three days of service. At time of production, the employer must provide the I-9 forms of current employees and individuals whose employment was terminated within the last year. Additionally, it must provide payroll records and other related business records within a reasonable period of time.

After review by ICE’s forensic auditor, or maybe ICE’s AI auditor, ICE may issue notices to the employer. A Notice of Suspect Documents is a notice advising the employer that after a review of the employee’s I-9 and a check of government databases, ICE determined the employee was unauthorized to work. After receipt of such notice, the employer must notify the designated employee that ICE has determined that the work authorization documentation submitted by the employee is invalid and the employee must be given the opportunity to provide other documentation to prove authorization to work. If the employee cannot provide such documentation, the employer must terminate that employee or risk a fine for knowingly employing an undocumented worker.

Another possible notice is a Notice of Intent to Fine (NIF), wherein ICE determines there have been substantive errors on the I-9 forms and/or the employer has knowingly hired/employed unauthorized workers. These NIFs keep getting larger and larger with it not being uncommon to see potential fines between $100,000 and $1,000,000. After receipt of a NIF, the employer’s counsel should seek to negotiate a lower fine. Fines can be reduced substantially in negotiations — often 25% to 40% less than the initial amount.

Preparation for an ICE Encounter

One of the most important aspects to prepare for an ICE encounter is for the employer to conduct an informal I-9 audit under the direction of an immigration compliance attorney. By conducting such, errors on the I-9 forms can be remediated, except for the timely completion of I-9 forms, which is covered by a five-year statute of limitations. Additionally, if the employer retains the supporting documentation, the audit can identify any documents that are suspected as fraudulent and investigate the situation.

If the employees are represented by a union, the union may request to bargain over the effects of an internal I-9 audit, such as the length of time employees have to remediate the I-9 by producing new documentation, whether the employees will be placed on leave if they cannot promptly provide new documentation, and any severance pay, if discharged for being unauthorized to work.[i]  If, as a result of the informal I-9 audit, an employer decides it wants to implement and enroll in E-Verify in a non-E-Verify state, it must bargain upon request with the reason over said enrollment.[ii]

Employers also need to have a plan of action on what to do if there is an ICE encounter. Each type of ICE encounter has distinct aspects of an employer response. For an ICE I-9 audit, the employer needs to be prepared for the right employee, HR manager, plant manager, etc., to accept the Notice of Inspection / subpoenas, and immediately communicate with legal counsel about the employer’s response. For an ICE raid, there is little that an employer can do except to obtain a copy of the search warrant, walk around with the ICE agents during the search, and obtain a copy of the list of seized documents. As for the agency warrant, this is where an employer has the most discretion. Because it is not a judicial warrant, an employer need not consent to any search of non-public areas and can decline to produce any employee listed on the warrant. However, it may comply with the agency warrant if it so desires. There is no perfect answer to this question, but employers need to have a consistent plan of action. Concluding the agency warrant, unions may request bargaining over an employer’s decision as to whether to consent to the search. Because this may affects the terms and conditions of employment, it is a mandatory subject of bargaining.

Conclusion

Every employer should be prepared to react to an ICE encounter, if one occurs. Through effective planning and training, any ICE encounter will not seem foreign to your management clients.

Bruce E. Buchanan is senior counsel at Littler Mendelson’s Nashville office, where he advises employers on immigration compliance issues, represents employers in ICE inspections/audits and DOJ/IER investigations, and conducts internal I-9 audits. Also, he practices labor law where he represents employers before NLRB and DOL’s Wage & Hour Division. Buchanan may be reached at bbuchanan@littler.com or (615) 540-3092.

Effective July 1, the Tennessee Human Rights Commission (commission) was dissolved with very little fanfare. That same day, the newly created Civil Rights Enforcement Division (CRED) of the Tennessee Attorney General’s office assumed responsibility for investigating, among other things, employment discrimination claims brought under the Tennessee Human Rights Act and the Tennessee Disability Act. What does this governmental agency change mean for employment law practitioners?

First, something should be said about the commission’s demise. According to several state legislators, the commission had long been under scrutiny for alleged ineffective administration and slow claims processing. During debate on the Senate floor on April 21, the prime sponsor of the bill to dismantle the commission, Sen. John Stevens of Huntingdon (R), explained that the commission’s chronic backlog and slow claims processing was the genesis for the bill.[1] According to Stevens, “The people that are alleging that their civil rights have been violated deserve a timely and thorough investigation and a timely response from the State of Tennessee. The Human Rights Commission has not been delivering on that.”[2] During the same floor debate, Sen. Kerry Roberts of Springfield (R), further explained the reasons for ending the decades-old commission. Roberts described the commission as “an entity that has steadfastly been enormously ineffective” because “claims [] have languished without action.”[3] Roberts stated, “This is about ineffective administration.”[4] While the move to abolish the commission had its detractors, the bill easily passed the Republican controlled General Assembly on April 21 and was signed into law by Gov. Bill Lee on May 12. The new law is codified as Public Chapter No. 471.

One recurrent issue of concern voiced by opponents to the bill is whether the attorney general’s office would have a conflict of interest handling employment claims against the state. The bill sponsors countered this concern with citation to the case of State ex rel. Commissioner of Transportation v. Medicine Bird Black Bear White Eagle.[5] In that case, an intra-governmental legal dispute arose between the Tennessee Department of Transportation (DOT) and the Tennessee Commission of Indian Affairs over the use of land containing a Native American burial ground. The trial court disqualified the attorney general’s office from simultaneously representing both agencies in the lawsuit based upon an ethical conflict of interest, reasoning that the attorney general potentially owed a greater duty of loyalty to the DOT than to the commission. The Tennessee Court of Appeals disagreed. “Unlike the conflict-of-interest rules governing the conduct of lawyers representing private clients, the Attorney General is not necessarily prohibited from representing governmental clients whose interests may be adverse to each other. The majority rule is that the Attorney General, through his or her assistants, may represent adverse state agencies in intra-governmental disputes.”[6]

To better understand the new structure and procedures of CRED, the author interviewed Chief Deputy Attorney General Lacey Mase. According to Mase, the newly appointed director of CRED is Steven Griffin, who formerly served in the attorney general’s office as senior counsel for strategic litigation. CRED’s claim handling procedures are different than those of the commission. According to Mase, CRED’s procedures will closely follow those of the Attorney General’s Consumer Protection Division.

CRED’s website contains an online complaint portal for initiating a complaint.[7] A complaint can also be submitted via U.S. Mail or by email to CRED. A complaint must be filed with CRED within 180 days of the challenged adverse employment action.[8] If more than 180 days have elapsed, or if the employee chooses not to file a complaint with CRED, an employee may file a lawsuit in either circuit or chancery court within one year of the challenged adverse employment action.[9]

Currently, CRED’s website contains scant information about claim-processing procedures. Because CRED is new, administrative plans are still being ironed out. With time, there likely will be more information posted to the website. According to Mase, once a complaint is filed, an intake specialist will review the complaint for jurisdiction purposes. If there are no jurisdictional defects, CRED will send a copy of the complaint and a letter to the employer (sometimes referred to as respondent) requesting a response. CRED will treat all information submitted to it by both parties as confidential. Unlike the EEOC, CRED does not provide an online case file portal. Party submissions (employer responses or employee rebuttals) can be made via email or a secure file transport protocol (SFTP) to a designated CRED staff member. Upon reviewing the employer’s response, CRED has several options. First, it may choose to close the claim. If it closes the claim, CRED will send a notice to both parties advising them of its decision and the employee’s right to pursue a direct court action. Second, CRED could suggest mediation or perhaps conciliation, depending on how it views the merits of the claim. Third, CRED could initiate formal requests for information, including requests for documents and testimony under oath. After CRED has gathered more detailed information through its investigative process, CRED again would have options. It could close the claim. It could suggest mediation or conciliation.  As a last resort, assuming mediation or conciliation has failed or are not viable options, CRED can initiate a lawsuit against the employer in chancery or circuit court.

Unlike the commission procedures, the CRED process appears more fluid and flexible. CRED may or may not request a rebuttal from the employee. It may or may not choose to initiate a formal investigation or suggest mediation. CRED will not conduct hearings or adjudicate the merits of claims as the commission formerly had the authority to do. The new amendments to the THRA do not vest CRED with authority to conduct hearings.[10] Mase explained that one important goal for CRED is to provide parties with a timely response. Given the one-year limitation period for an employee’s private cause of action, CRED is cognizant of the dilemma that an employee could face if CRED’s decision to pass on a claim is made beyond the one-year limitations period. To that end, CRED will attempt to address claims as quickly as possible. However, as Mase pointed out, each claim will be handled on a case-by-case basis, and timelines are not guaranteed.

One final important note should be made. In late June, CRED entered into a worksharing agreement with the EEOC. The worksharing agreement ensures claimants in Tennessee continue to have 300 days to file a charge of discrimination with the EEOC. It also allows CRED to dual-file claims with the EEOC on behalf of Tennessee employees and to transfer complaints to the EEOC for further investigation, as needed.

Doug Hamill is a member of Mikel & Hamill PLLC in Chattanooga, and former chair of the TBA Labor & Employment Section. He primarily represents individuals in employment law matters. He can be reached at dhamill@mhemploymentlaw.com.

On June 5, the U.S. Supreme Court in Ames v. Ohio Department of Youth Services unanimously rejected the “background circumstances” rule — a heightened evidentiary standard that five circuit courts of appeals, including the 6th Circuit, had been applying to employment discrimination claims under Title VII of the Civil Rights Act of 1964 (“Title VII”).[1]  The rule required claimants who are members of a “majority” group within a class protected by Title VII to establish both a typical prima facie case and additional “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.”[2]  Aside from resolving a circuit split on the rule, the decision is also notable for the concurring opinion authored by Justice Clarence Thomas questioning application of the McDonnell-Douglas burden shifting analysis to summary judgment motions.[

The Underlying Claims and the Court’s Ruling

Plaintiff Marlean Ames (Ames) is a heterosexual female who claimed she was discriminated against on the basis of her sexual orientation when she was passed over for a promotion in favor of a lesbian woman and then demoted and replaced by a gay male.[4]  The district court dismissed her claims at summary judgment under the McDonnell Douglas burden-shifting analysis, which is the traditional framework for evaluating discrimination claims in the absence of direct evidence of discrimination.[5]

The first step of the McDonnell Douglas analysis requires plaintiffs to make a prima facie showing that: (1) they are a member of a class protected by Title VII; (2) they were qualified for their position; (3) they suffered an adverse employment action; and (4) they were treated less favorably than someone outside of their protected class.[6]  However, because Ames is heterosexual, the district court imposed an additional burden on Ames, applying the “background circumstances” rule.[7]  Finding that Ames had not proffered evidence suggesting that the defendant “was the rare employer who discriminates against members of a majority group,” the district court granted summary judgment to the defendant.[8]  The 6th Circuit Court of Appeals affirmed, also citing the “background circumstances” rule.[9]

The Supreme Court vacated the 6th Circuit’s decision, rejecting the “background circumstances" rule and its heightened evidentiary standard for members of majority groups.[10]  The court reasoned that the rule is inconsistent with both the text of Title VII and the Court’s own precedent.[11]  The Court emphasized that Title VII offers protection to any individual on the basis of race, color, religion, sex, or national origin, regardless of the individual’s membership in a minority or majority group.[12]  In light of this, the court held that “Congress left no room for courts to impose special requirements on majority-group plaintiffs alone.”[13]  The court emphatically stated that “Our case law thus makes clear that the standard for proving disparate treatment under Title VII does not vary based on whether or not the plaintiff is a member of a majority group. ... The ‘background circumstances’ rule flouts that basic principle.”[14]

Given the 6th Circuit’s prior adoption of the “background circumstances” rule, the Supreme Court’s decision immediately changes Title VII as applied by Tennessee federal courts. Ames also will affect Tennessee court decisions regarding discrimination matters as the Tennessee Human Rights Act (THRA) was intended to further the policies embodied in the similar federal laws against employment discrimination.[15] Additionally, Tennessee's courts regularly consult the decisions of their federal counterparts for guidance when called upon to construe and apply the THRA.[16]  It has always been a best practice for Tennessee employers to base personnel decisions on legitimate, non-discriminatory reasons, regardless of whether the affected employee is a member of a majority group, and to document those reasons well.  Ames makes this practice compulsory, as the decision is likely to encourage an increase in discrimination claims from individuals who are members of groups historically perceived as being in the “majority.”

The Concurring Opinion Questions the Future of DEI Programs

Thomas, joined by Gorsuch, wrote a concurring opinion highlighting additional problems with the background circumstances rule. First, he noted the difficulties in determining what is a “majority” group.  For example, while women represent the majority of the U.S. population, that is not the case in some states and counties, and women make up the majority of employees in some industries, but the minority in others.[17]

Next, Thomas took aim at DEI programs. While the case didn't invalidate DEI, Thomas's concurrence highlighted concerns about how such programs might lead to "overt discrimination against those perceived to be in the majority."[18] Thomas noted that the background circumstances rule is “nonsensical” for the additional reason that it requires courts to assume that only an “unusual employer” would discriminate against those it perceives to be in the majority.[19] Thomas wrote, “a number of this Nation’s largest and most prestigious employers have overtly discriminated against those they deem members of so-called majority groups. American employers have long been ‘obsessed’ with ‘diversity, equity, and inclusion’ initiatives and affirmative action plans … Initiatives of this kind have often led to overt discrimination against those perceived to be in the majority.”[20]

The Ames opinion has been lauded by the Trump administration as it attacks DEI programs and it provides support for recent EEOC guidance on DEI-related discrimination, including EEOC’s recent publication What To Do If You Experience Discrimination Related to DEI at Work. Employee advocate groups emphasize that well-designed DEI initiatives focusing on promoting equal opportunity for all should remain legally defensible under Title VII, regardless of the Ames decision. However, such groups acknowledge that employers may become more cautious and hesitant to implement or expand DEI programs due to fear of costly and prolonged litigation.

The Concurring Opinion Casts Doubt on McDonnell Douglas

While the Ames majority opinion resolves the circuit split on the “background circumstances” rule, the concurring opinion authored by Thomas and joined by Gorsuch raises questions regarding application of the McDonnell Douglas burden shifting analysis to motions for summary judgment.

The McDonnell Douglas burden shifting “framework aims to ‘bring the litigants and the court expeditiously and fairly to th[e] ultimate question”’ in a disparate-treatment case — namely, whether ‘the defendant intentionally discriminated against the plaintiff.’”[21]  The analysis consists of three parts:

At the first step of the familiar three-step inquiry, the plaintiff bears the “initial burden” of “establishing a prima facie case” by producing enough evidence to support an inference of discriminatory motive. If the plaintiff clears that hurdle, the burden then “shift[s] to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.”  Finally, if the employer articulates such a justification, the plaintiff must then have a “fair opportunity” to show that the stated justification “was in fact pretext” for discrimination.[22]

The Ames majority opinion expressly notes that the court was assuming, without deciding, that McDonnell Douglas was an appropriate tool for evaluating motions for summary judgment.[23]

However, in his concurrence, Thomas expresses doubt that this assumption is valid.[24] Noting that like the “background circumstances” rule, the McDonnell Douglas burden shifting analysis is a judicially-created doctrine with no basis in the text of Title VII, Thomas challenged its use at summary judgment for four reasons:  “the framework is incompatible with the summary-judgment standard; it fails to encompass the various ways in which a plaintiff could prove his claim; it requires courts to maintain artificial distinctions between direct and circumstantial evidence; and it has created outsized judicial confusion.”[25]  As such, he advocated for the court to consider the issue when presented an appropriate case.[26]

While the Supreme Court may or may not eventually address the issue, Thomas’s concurrence may spur more immediate change by influencing courts and litigants to independently abandon the McDonnell Douglas framework.  He concluded his concurrence by stating:

"In the meantime, litigants and lower courts are free to proceed without the McDonnell Douglas framework. This Court has never required anyone to use it. And, district courts are well equipped to resolve summary judgment motions without it. Every day—and in almost every context except the Title VII context—district courts across the country resolve summary judgment motions by applying the straightforward text of Rule 56. In my view, it might behoove courts and litigants to take that same approach in Title VII cases."[27]

In the brief time since Ames was handed down, Thomas’s suggestion to disregard McDonnell Douglas has already been cited favorably by at least three judges discussing alternatives to McDonnell Douglas,[28] including one district judge who accepted his invitation and expressly elected to “follow the Circuit and Justice Thomas's lead by judging [defendant’s] motion only under Rule 56.”[29]  Judges and lawyers who already shared Thomas’s disfavor for McDonnell Douglas might be emboldened to try affecting change on their own.

Richard D. Bennett is a partner at Phelps Dunbar LLP in Memphis. He is a member of the firm's Labor and Employment and Litigation groups. He is a graduate of the University of Memphis Cecil C. Humphreys School of Law. Bennett may be reached at rick.bennett@phelps.com or (901) 259-7121. 

Jay A. Ebelhar is counsel for Phelps Dunbar LLP in its Memphis office. He is a member of the firm's Labor and Employment and Litigation groups. He is a graduate of the University of Memphis Cecil C. Humphreys School of Law. Ebelhar may be reached at jay.ebelhar@phelps.com or (901) 259-7212.

President Donald Trump's order restricting birthright citizenship was blocked for a fourth time earlier this month, Reuters reports. The most recent decision comes from U.S. District Judge Deborah Boardman in Maryland, who blocked implementation of the order for children anywhere in the United States who would be affected. Her decision came in a response to a class action suit filed by a number of advocacy groups. She previously had agreed to grant class action status to the case but put that decision on hold while the administration appealed her ruling to the 4th U.S. Circuit Court of Appeals. The paper reports that the appeals court recently dismissed the administration's appeal. Boardman's action was consistent with a finding in February that the order likely was unconstitutional. In related news, Bloomberg Law reports that the U.S. Citizenship and Immigration Services is moving forward with plans to implement the order if allowed by the courts.

The Defendant, Koalis Peete, appeals the trial court’s summary dismissal of his motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. Discerning no error, we affirm.

NALBANDIAN, Circuit Judge. Dr. Robert O’Laughlin brought this qui tam action on behalf of the United States under the False Claims Act. He claimed that his former employers, providers of radiation and chemotherapy services, fraudulently billed Medicare and other federal programs. He alleged that they falsely represented that their services were either supervised or performed by qualified physicians. The district court dismissed some claims and, after discovery, granted summary judgment for the defendants on the rest. O’Laughlin appeals both rulings. Because the district court correctly rejected his claims, we AFFIRM.

The Office of the Tennessee Attorney General recently announced the opening of a nationwide claims process and portal for customers of the tax debt settlement company Wall & Associates Inc. to submit claims to be considered for restitution. Those defrauded by the company should filed their claim before Dec. 10 online at www.WallConsumerClass.com. Customers also may contact the claims administrators Verus by phone at 609-283-5393, by e-mail at WallConsumerClass@VerusLLC.com or by mail at P.O. Box 6535, Lawrenceville, NJ 08648. In a press release, Attorney General Jonathan Skrmetti said the company has collected more than a million dollars from hundreds of Tennesseans over the years.

JULIA SMITH GIBBONS, Circuit Judge. Defendant, United States Postal Service (“USPS”), employed plaintiff Kristopher Jackson as a mail clerk. Jackson suffers from sickle cell anemia, which qualifies him for leave under the Family Medical Leave Act (“FMLA”). While working at USPS, Jackson routinely had unexcused absences—some covered by the FMLA and some not. Eventually, Jackson continued work under a Last Chance Agreement (“LCA”) which stated that Jackson would be terminated from his position if he continued to be absent from his work for days not covered under the FMLA. According to USPS, Jackson still failed to attend work numerous times for no valid reason and was thus terminated from his position for violating the terms of his LCA. Jackson then sued, claiming that several of his absences were covered by the FMLA, and that USPS’s decision to terminate him violated the FMLA and the Rehabilitation Act. USPS moved for summary judgment and the district court granted the motion in part, finding that Jackson had failed to establish a prima facie case that he qualified for the FMLA on all but one of the disputed dates. The district court also determined that Jackson failed to put USPS on notice that he required accommodations under the Rehabilitation Act. Because the district court was correct in its analysis on a few of the disputed dates and Jackson’s claims under the Rehabilitation Act but nonetheless erroneously held that an FMLA medical certification can create a hard cap on unforeseeable intermittent FMLA leave, we reverse in part and affirm in part the district court’s decision. We then remand to the district court to analyze the case in light of this opinion.