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:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. 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. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the 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 shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this 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 the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

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

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.