By Nicole D. Prysby, J.D.
While a claim for retaliation for requesting a religious accommodation could not go forward because requesting a religious accommodation is not opposition or participation, an employee’s claim that she was retaliated against for insisting that the employer respect the religious accommodation it had granted to her was protected opposition, held a federal district court in Maryland. In addition, the employee’s claim based on retaliation for complaining about religious discrimination could go forward. Although there was no evidence the individuals who were responsible for the adverse action taken against her were aware of her complaints, the employer itself was aware and any misconduct by its employees should be imputed to it. For the same reason, the court imputed liability to the employer for the employee’s hostile work environment based on religion claim. It also held that the employee exhausted her administrative remedies for the bulk of her claims: although her EEOC charge covered conduct before a certain date and her complaint pleaded misconduct for more than a year later, she alleged a single, continuing retaliatory action. Any investigation into the earlier conduct would have revealed the later conduct as well. The only claim for which she had not exhausted administrative remedies was based on retaliation for a prior lawsuit against the employer, because her complaint made no mention of the prior lawsuit (Johnson v. United Parcel Service, Inc., August 16, 2018, Russell, G., III).
Overloaded. The employee worked for a delivery company and had previously brought discrimination claims against her employer for race, sex, and religious discrimination, which were dismissed on summary judgment. The following year, she returned to work after an injury, and her supervisor confronted her about her previous lawsuit. Her delivery truck began to be overloaded and disorganized, causing her to have to work past sundown even though she had a religious accommodation allowing her to stop work beginning at sundown on Friday. She complained to the employer that it was not respecting the religious accommodation she had been granted, to no avail.
The overloaded truck also caused the employee physical problems; she injured herself trying to move around inside her disorganized truck and was out of work for a month. When she returned, the over-packing resumed and she was again injured. On one occasion, the employee went to work on a day she was not scheduled and found that the truck was packed neatly and safely for her replacement driver, leading her to believe that the over-packing was retaliatory.
The employee brought claims for retaliation due to protected activity, retaliation for requesting a religious accommodation, religious discrimination, and hostile work environment. The employer moved to dismiss all claims.
Exhaustion of administrative remedies. The employer argued that the employee failed to exhaust her administrative remedies because the EEOC charge only covered conduct prior to May 2016, and the amended complaint pleaded misconduct up until September 2017. The court rejected that argument because the employee pleaded that her truck was over-packed both before and after May 2016, and any violation after May 2016 would have arisen in an investigation into the pre-May 2016 violations. And this was not an attempt to plead a continuing violation, but an allegation of a single continuing act of retaliation.
The court concluded that the employee had exhausted her administrative remedies with respect to her claim of retaliation based on complaints she filed with the employer, as well as her claims for retaliation for requesting a religious accommodation, religious discrimination, and hostile work environment. But she had not exhausted her administrative remedies with respect to retaliation claims based on her previous lawsuit, because her EEOC charge made no reference to a prior lawsuit.
Retaliation claims. The court concluded that the over-packing of the truck was an adverse employment action because the employee pleaded that the over-packing was dangerous and beyond what a reasonable person could tolerate. Her claims based on retaliation for complaining about religious discrimination could go forward. The employer argued that there was no evidence the individuals who packed the truck were aware of her complaints, but the employer itself was aware, and any misconduct by its employees should be imputed to the employer. Her claims based on retaliation for requesting a religious accommodation could not go forward, because requesting a religious accommodation is not opposition or participation. However, she also argued that the employer retaliated against her for insisting that it respect the religious accommodation it had granted to her, and that activity did constitute protected opposition.
Hostile work environment claim. The employer argued that the employee failed to state a hostile work environment claim because there was no basis for imputing liability to it for the harassment she alleged and because there was no allegation that the individuals who overloaded her truck were aware of her religious beliefs. The court rejected that argument because it had already concluded that based on the employee’s allegations, the employer was aware of her religion, and the conduct of its employees would be imputed to the employer.
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