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EEOC v. CONSOL Energy, Inc., No. 16-1230 (4th Cir. June 12, 2017)

The Fourth Circuit affirms a jury verdict and back-pay relief of $586,860 in favor of the EEOC, in a Title VII religious accommodation case where the employer stubbornly "belie[ved] that it could rely on its own understanding of scripture to limit the scope of the accommodation it offered" an employee who, because of his Christian faith, refused to use a hand scanner.

EEOC v. CONSOL Energy, Inc., No. 16-1230 (4th Cir. June 12, 2017): The worker, Mr. Butcher, was a West Virginia coal miner for over 40 years. The trouble began when the mine instituted a "biometric hand-scanner system at the mine, in order to better monitor the attendance and work hours of its employees."

Mr. Butcher, described as "a life-long evangelical Christian" and "ordained minister and associate pastor," asserted that the new system clashed with his religious beliefs. Because of his own interpretation of the Book of Revelations and the Mark of the Beast, "his willingness to undergo the scan - whether with his right hand or his left - could lead to his identification with the Antichrist."

In what must be savored in full, the employer's clumsy response was to counter Mr. Butcher's interpretation of the Bible:

"[HR Director] Fazio gave Butcher a letter written by the scanner's manufacturer, offering assurances that the scanner cannot detect or place a mark - including the Mark of the Beast - on the body of a person. Offering its own interpretation of '[t]he Scriptures,' the letter explained that because the Mark of the Beast is associated only with the right hand or the forehead, use of the left hand in the scanner would be sufficient to obviate any religious concerns regarding the system."

Mr. Butcher prayerfully declined. Making matters worse for CONSOL, it already offered an accommodation from the scanner to employees with hand injuries. They could enter their employee numbers on a keyboard, which would have been unobjectionable to Mr. Butcher. Faced with a choice between violating his faith and unemployment, Mr. Butcher chose the latter. He retired, then successfully obtained other (less remunerative) replacement employment. Mr. Butcher's union filed a grievance on his behalf, but withdrew it "because its collective bargaining agreement did not cover religious accommodation claims."

At trial, the jury held that the employer failed to reasonably accommodate Mr. Butcher's sincere religious beliefs, and awarded him $150,000 in compensatory damages for emotional distress. The judge added $436,860 in back pay, and denied defendant's post-judgment motions for judgment as a matter of law and a new trial.

The Fourth Circuit opinion affirming the judgment addresses a number of issues of recurring interest to Title VII litigators:

1. The panel rejects the employer's attempt to re-try on appeal whether there was a genuine conflict between Mr. Butcher's religious beliefs and his use of the hand scanner.

"At bottom, Consol's failure to recognize this conflict - in its dealings with Butcher as well as its litigation of this case - appears to reflect its conviction that Butcher's religious beliefs, though sincere, are mistaken ... [Yet i]t is not Consol's place as an employer, nor ours as a court, to question the correctness or even the plausibility of Butcher's religious understandings ... So long as there is sufficient evidence that Butcher's beliefs are sincerely held - which the jury specifically found, and Consol does not dispute - and conflict with Consol's employment requirement, that is the end of the matter.

"Indeed, once we take out of this case any suggestion that Butcher may have misunderstood the Book of Revelation or the significance of the Mark of the Beast, there is very little left."

2. The employer also questioned whether Mr. Butcher suffered any adverse employment action, because he retired voluntarily and was not fired for refusing to abide by the scanner requirement. But the Fourth Circuit holds that the intolerable choice - violate religious beliefs or quit - constituted a "constructive discharge." The panel notes that "the district court found that evidence of Consol's 'complete failure to accommodate, in the face of repeated requests,' combined with evidence that Consol was aware of a costless accommodation but nevertheless refused to make it available to Butcher, was sufficient to support the jury's verdict." The panel notes that the intervening decision in Green v. Brennan, 136 S. Ct. 1769 (2016), expressly rejected any "deliberateness" or intent requirement for proof of constructive discharge.

3. The panel affirms the district court's exclusion - even after some testimony slipped through - of evidence that the plaintiff supposedly did not avail himself of the union's grievance process to cure the problem. The employer's duty was to provide the accommodation upon request, the panel holds, not wait until impelled to do so by an arbitrator's award. The district court "directed the jury to disregard all testimony related to the grievance process ... Consol offers no reason to believe that the jury here ignored the curative instruction or otherwise was confused, in a way that prejudiced Consol, by the grievance evidence introduced on the first day of trial."

4. The panel holds that the district court did not abuse its discretion in returning the jury to deliberate damages, when it may have erroneously included lost back pay in the award. "[O]n its initial verdict form, where directed to '[s]tate the amount of compensatory damages you award,' the jury filled in 'salary plus bonus & pension, court cost.'" To rectify possible misunderstanding or mistake, the district court retains discretion under Federal Rule 49(b)(3) "to determine whether the damages verdict 'reflects jury confusion or uncertainty,' and, if it does, to 'clarify the law governing the case and resubmit the verdict for a jury decision.'"

5. The panel holds that the back pay award did not have to be offset by pension payments that Mr. Butcher received, holding that such payments fall within the "collateral source" rule.

6. Finally, on the EEOC's cross-appeal, the panel affirms the decision to grant judgment as a matter of law on punitive damages. "'[W]hatever inference' might arise from Consol's general awareness of its religious accommodation obligations, J.A. 903, there was no similar evidence to suggest that Consol subjectively appreciated a risk that it failed to meet those obligations by offering Butcher an alternative that did not require scanning of his right hand."

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