By Brandi O. Brown, J.D.
Responding to post-trial motions after an award of almost $600,000 to the EEOC on behalf of a Christian miner who refused to submit to biometric scanning because it created the "mark of the beast," a federal district court in West Virginia rejected several of the employer’s arguments against the judgment. Not only did the court find evidence of a grievance procedure available under a collective bargaining agreement was "irrelevant" to whether or not the employee was constructively discharged, it refused to reconsider its conclusion that pension benefits he received were a collateral source and could not be used to offset damages. The defendants' motions were denied (EEOC v. Consol Energy, Inc.
, February 9, 2016, Stamp, F. Jr.).
The employee had worked at the West Virginia mine for 35 years when, in 2012, the employer announced it would begin to use a biometric hand scanner to track time and attendance. The miner objected, explaining that he believed it was part of a system of identification and personal information collection that would be used by the Christian Antichrist to identify his followers, i.e.
, the "mark of the beast." Although the employer had developed a bypass method for miners who were physically incapable of using the scanner, it denied the employee's repeated requests for exemption. Instead, it provided him with a copy of a progressive discipline policy and told him the policy would be enforced against him if he refused to use the scanner. He retired.
Subsequently, the EEOC filed a civil action on his behalf. After the first half of a bifurcated trial, a jury found his employer failed to provide him with a religious accommodation and awarded him $150,000 in compensatory damages. Then, after an evidentiary hearing, the court awarded him back pay and front pay damages of almost $437,000. The defendants filed a renewed motion for judgment as a matter of law, a motion for a new trial, and a motion to amend the court's findings and conclusions under Fed. R. Civ. P. 59.
Ability to grieve did not affect constructive discharge.
In its motion for a new trial under Rule 59, the employer contended that several legal errors had been made by the court at trial. Among other things, it argued that the court erred in excluding evidence related to the collective bargaining agreement between the employee's union and the employer, which allowed him to file a grievance and seek arbitration prior to discharge. Basically, the employer argued that because the grievance procedure was available to the employee, he was not without options and, thus, was not forced to retire. This argument, the court explained, misapprehended what was required. Whether enforcement of the progressive discipline policy would have resulted in the miner's discharge if he had arbitrated the matter through the grievance process had no bearing on whether religious accommodation he requested was "deliberately denied" by the employer. Moreover, the employee's constructive discharge was complete before that process would have applied to an attempt to discharge the employee. "To prove constructive discharge," the court explained, "a claimant is not required to endure an intolerable work environment until their employer attempts to discharge them."
Furthermore, the court explained, even if the employee had waited and gone through the grievance and arbitration process, it would remain the case that the employer had failed to accommodate him. "Title VII requires an employer to provide a reasonable accommodation when requested by the employee," the court explained, "not to provide a reasonable accommodation when ordered to do so by an arbitrator or some other tribunal." Thus whether he was able to file a grievance upon discharge was irrelevant. Arbitration, the court explained, "could serve only as a different forum for" the employee "to bring his already ripe religious discrimination claim against the defendants." (In fact, the union had filed a grievance on his behalf but withdrew it upon concluding that the CBA did not cover claims of religious discrimination.")
Pension is collateral source.
The employer also filed a motion to amend the court's findings with regard to back pay and front pay. In addition to rejecting the employer's renewed argument regarding mitigation, the court also rejected its renewed argument that the employee's front pay award should have been offset by the pension benefits he received. The pension, explained the court, provided "a contractual retirement benefit that the employee was entitled to regardless of the Title VII violation." This was a "better" understanding of the Fourth Circuit's decision in Sloas v. CSX Transp., Inc.
, than that offered by the employer. Further, an earlier decision heavily relied upon by the employer, Fariss v. Lynchburg Foundry
, did "not purport to apply the collateral source rule."
Judgment as a matter of law.
In its renewed motion for judgment as a matter of law, the defendants argued that not only had the EEOC failed to present a prima facie case of religious discrimination, but that there was insufficient evidence that one of the defendants, CONSOL, was the employee’s employer. Rejecting the employer's argument with regard to the prima facie case, the court found sufficient evidence to support the finding that the scanner policy conflicted with the miner's sincere religious beliefs, including his testimony that he believed participating in the policy would be a pledge of his allegiance to the Antichrist. There was also sufficient evidence to support the finding that the employee was constructively discharged. Not only was the grievance procedure irrelevant to this determination, the evidence showed that the employee requested an accommodation, a bypass mechanism in fact existed, and the employer did not offer him that method as an accommodation.
As to the defendants' argument that CONSOL was not the miner's employer, the court ruled that the EEOC had successfully shown the parent company exercised control over the employees, which was sufficient to support the jury's finding. CONSOL created the hand scanner policy, as well as the related progressive discipline procedure, and CONSOL's HR personnel were the ones who considered and denied the employee's accommodation request. Moreover, the employee's retirement and benefits documents were issued by CONSOL's HR department and his employment records were maintained by CONSOL as well.