Mining company doomed in resurrected 'mark of the beast' lawsuit

by McNair Law Firm, P.A.
Contact

The U.S. 4th Circuit Court of Appeals (whose rulings apply to all South Carolina employers) recently decided a religious accommodation case in which a jury awarded a former employee more than half a million dollars. The Equal Employment Opportunity Commission (EEOC) filed the case on behalf of the employee and was obviously very successful at trial. Read on to see what the 4th Circuit did with the jury’s verdict after the company appealed.

Factual background

Beverly R. Butcher, Jr., began working for Consol Energy, Inc., in April 1975. In September 1977, he started working at Consol’s Robinson Run Mine in West Virginia. For almost 40 years, he was, by all accounts, a satisfactory employee with no record of poor performance or disciplinary problems. He is also an ordained minister, associate pastor, and lifelong evangelical Christian. He has served in a variety of capacities at his church, including as a member of the board of trustees, part of the church’s worship team, a youth worker, and a participant on mission trips.

For 37 years, Butcher’s employment with Consol presented no conflicts with his religious beliefs and conduct. But in 2012, a change to the daily operations of the Robinson Run Mine put his religious beliefs at odds with his job. That summer, Consol implemented a biometric hand-scanner system at the mine to better monitor the attendance and work hours of employees. The system required each employee to scan his right hand when checking in to or out of a shift. The shape of the employee’s hand was then linked to his unique personnel number. The scanner was thought to allow for more accurate and efficient reporting when compared to the previous system, which required the shift foreman to manually track time worked by employees.

For Butcher, participating in the hand-scanner system presented a threat to his core religious commitments. He believes in the authenticity and authority of Scripture, and he held a good-faith belief in an Antichrist who “stands for evil” and that the Antichrist’s followers are condemned to everlasting punishment. Butcher’s understanding of the book of Revelation is that the “mark of the beast” brands followers of the Antichrist, allowing the Antichrist to manipulate them. Butcher feared that using Consol’s hand-scanning system would result in him being “marked” and that his willingness to undergo the scan—with his right or left hand—could lead to him being identified with the Antichrist, even though it left no physical or visible sign. His sincere belief in those ideas was not disputed.

Butcher took his concerns to his union representative, who alerted Consol’s HR department. According to Butcher, Consol instructed him to provide a letter from his pastor explaining why he needed a religious accommodation. He obtained a letter from his pastor vouching for his deep dedication to Jesus Christ. Butcher also prepared a letter of his own citing verses from Revelation and explaining his view that the hand scanner would associate him with the “mark of the beast” and cause him to serve the Antichrist through his will and actions. He ended the letter by stating:

As a Christian[,] I believe it would not be in the best interest of a Christian believer to participate in the use of a hand scanner. Even though this hand scanner is not giving a number or mark, it is a device leading up to that time when it will come to fruition, and in good faith and a strong belief in my religion, I would not want to participate in this program.

Butcher took the matter up the chain of command and had a fairly extensive dialogue with management about his concerns. Management would not bend or accommodate his request. However, unbeknownst to Butcher, Consol provided other employees an accommodation that allowed them to bypass the new scanner system altogether. By July 2012, Consol had determined that two employees who could not be checked in or out by a scan of either hand because of hand injuries could enter their personnel numbers on a keypad instead. According to Consol’s own witness, the accommodation imposed no additional costs or burdens on the company, and allowing Butcher to use a keypad would have been cost-free.

Nevertheless, Consol continued to resist providing the accommodation to Butcher and instead decided that he would be required to scan his left hand. The disparity in treatment was highlighted by a July 25, 2012, e-mail that simultaneously authorized the keypad accommodation for the two employees with hand injuries and denied the accommodation for Butcher: “Let’s make our religious objector use his left hand.”

Butcher was notified of Consol’s decision at a meeting on August 6, 2012. He requested a few days to consider the option of using his left hand in the scanner. He used the time to go “back to the scriptures again” and “pray very hard” about his dilemma. On August 10, he told management that he could not go along with the system in good conscience.

Butcher was immediately given a copy of Consol’s disciplinary procedures regarding the scanner, with the promise that discipline would be imposed if he refused to scan his left hand. According to the policy, an employee’s first and second missed scans would result in written warnings. A third missed scan would result in suspension, and a fourth would result in suspension with intent to discharge. Butcher believed the message was clear: “If I didn’t go along with the hand scan system, their intent . . . was to fire me.”

Butcher responded to the ultimatum by retiring. He emphasized that he did not want to retire, but when Consol remained unsympathetic, he felt he had no choice but to retire under protest. Shortly after retiring, Butcher learned about the keypad accommodation Consol had offered the other employees from his union, the United Mine Workers of America. The union then filed a grievance on his behalf under its collective bargaining agreement (CBA) with Consol based on the company’s failure to accommodate his religious beliefs. The union withdrew the grievance, however, when it determined that the CBA did not require the employer to provide religious accommodations.

Out of work and facing what he viewed as pressing financial need, Butcher sought new employment. In the summer and fall of 2012, he attended job fairs, looked for job postings, and applied for various jobs, including a position at the one coal mine he knew had a vacancy. After enduring several months of unsuccessful job hunting, he was hired as a carpenter helper by a temporary employment agency. In September 2013, Butcher accepted a better-paying construction position at another company, and he remained at that company for the duration of the trial.

EEOC action and trial

Butcher filed a discrimination charge, and the EEOC sued Consol on his behalf, alleging the company violated Title VII of the Civil Rights Act of 1964 by failing to accommodate his religious beliefs and constructively discharging him. The EEOC sought compensatory and punitive damages, back and front pay, lost benefits, and injunctive relief.

The case was tried before a jury in January 2015. At the close of the EEOC’s evidence, the district court agreed with Consol that the lawsuit was not a punitive damages case. However, the jury ultimately returned a verdict in favor of the EEOC, finding Consol liable for failing to accommodate Butcher’s religious beliefs. The jury made findings regarding the elements of a Title VII reasonable accommodation claim:

  1. Butcher had a sincere religious belief that conflicted with Consol’s requirement that he use the hand scanner.
  2. He informed Consol of the conflict.
  3. Consol constructively discharged him for his refusal to comply with its directions.

The damages were divided between the jury and the court. The court instructed the jury on its authority to award compensatory damages if it found a Title VII violation, distinguished compensatory damages from lost wages, and emphasized that the jury should not consider the issue of lost wages in its deliberations. Nevertheless, the jury provided “salary plus bonus & pension, court cost” in the blank for compensatory damages on the jury form.

After conferring with the parties, the trial judge reinstructed the jury on compensatory damages and sent it back for further deliberations. The judge clarified, “The fact that I am sending you back does not indicate my feelings as to the amount of damages or whether damages . . . should be awarded.” Ten minutes later, the jury returned a second verdict awarding $150,000 in compensatory damages. In response to a poll requested by Consol, each member of the jury confirmed that none of the $150,000 award was for lost wages.

The court held an evidentiary hearing on equitable remedies, including front and back pay and lost benefits, and on the EEOC’s request for a permanent injunction against Consol to prohibit further violations of Title VII’s reasonable accommodation provision. The parties differed on two issues regarding lost wages and benefits: (1) whether Butcher’s postretirement job search satisfied his duty to mitigate his damages and (2) whether the pension benefits he received after retiring should be offset from any award. The district court determined that Butcher properly mitigated his damages and that his pension benefits were a “collateral source” that should not be deducted from a damages award. The court awarded him $436,860.74 in front and back pay and lost benefits. The court issued a permanent injunction requiring Consol to refrain from future violations of Title VII’s reasonable accommodation provision and provide management training on religious accommodations.

The trial court subsequently denied Consol’s motions seeking a judgment, a new trial, and an amendment of the court’s findings on lost wages. The appeal focused on those issues and the denial of punitive damages.

4th Circuit’s decision

The 4th Circuit rejected Consol’s attempt to retry the question of whether there was a genuine issue or conflict between Butcher’s religious beliefs and the requirement that he use the hand scanner. It pointed to the long-standing standard that as long as there is sufficient evidence that an employee’s beliefs are sincerely held, it is not the employer’s—or the court’s—place to question the correctness or even the plausibility of his religious understandings. The court further noted that Consol did not dispute whether Butcher’s beliefs were sincerely held.

Next, the court rejected Consol’s argument that Butcher did not suffer an adverse employment action since he voluntarily retired and was not fired for refusing to abide by the scanner requirement. The court held that he had an intolerable choice—violate his religious beliefs or quit—and that his retirement was a constructive discharge. The court pointed out that Consol completely failed to accommodate Butcher’s beliefs despite his repeated requests. Finally, the employer was aware of a no-cost accommodation that it provided to other employees but refused to make it available to Butcher.

The trial court’s curative action in sending the jury back to make certain that the compensatory damages did not include front and back pay was proper. The jury’s award, which was issued after its review of what could and should be included, was correct and was not subject to being overturned on appeal. The court found that Butcher’s efforts to mitigate his damages were sufficient and that his pension could not be used as an offset against back pay damages. Finally, the court agreed with the trial court’s refusal to make the lawsuit a punitive damages case.

Lessons for employers

This is a case, at least as the court’s opinion described it, in which the employer appeared not to think through the facts before it. The EEOC will look at how similarly situated employees are treated. In this case, a solution was found for other employees, and it would not have required Butcher to violate what everyone seemed to agree was a sincerely held religious belief. Juries look for those things, so it was not surprising that the jury found that the employer failed to reasonably accommodate Butcher’s sincerely held religious belief.

The decision again shows that an employee articulating a sincerely held religious belief requires a religious accommodation analysis, even if the employer and its supervisory team disagree with the belief. In this case, the employer did not do that, even though there was a ready solution. Thus, the damages awarded to Butcher by the jury and the court were not surprises.

This case points out that litigation should involve the employer taking a step back from its initial decision prior to going full bore into a legal fight. In hindsight, this reader’s observation is that once the accommodation was made for some employees, it should have been provided to Butcher as well.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© McNair Law Firm, P.A. | Attorney Advertising

Written by:

McNair Law Firm, P.A.
Contact
more
less

McNair Law Firm, P.A. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.