Disruptive clerk allegedly fired for not attending church advances Title VII claim
Wednesday, September 7, 2016

Disruptive clerk allegedly fired for not attending church advances Title VII claim

By Deborah Hammonds, J.D. An employee who claimed she was fired from the Kansas Secretary of State’s office because she did not go to church could proceed with most of her Title VII claims based largely on remarks made to her grandmother by the Assistant Secretary of State about why the employee was terminated. However, her Title VII claim against the Assistant Secretary of State in his official capacity, as well as her Section 1983 and state law claims, were dismissed because of Eleventh Amendment immunity (Canfield v. Office of the Secretary of State for the State of Kansas, August 30, 2016, Crow, S.). Counseled on conduct. The employee worked as a part-time accounts clerk in one division of the Secretary of State’s office for several months before transferring to a full-time position in another division. Before the transfer, her employer had received complaints that the employee was loud in the office and was often absent from her desk. She was advised by a superior that she was being offered the full-time position on a trial basis and was counseled on how she needed to conduct herself. She was told she needed to speak quietly and less often; had to sit at her desk; needed to reduce her cell phone use; needed to refrain from having food at her desk; and should inform supervisors of future absences by phone instead of by text message. Policy violations continue. After completing the trial period and securing her position, the employee was absent numerous times during a three-month period, notifying her supervisors by email instead of personal contact. She also violated the policy against personal use of office telephones and excessive use of personal cell phones, received several office visits from her boyfriend, and was accused of other disruptive behavior. Termination explained to employee’s grandmother. In November 2014, three of the employee’s superiors met to discuss her employment. The head of the division—a Deputy Assistant Secretary—recommended the employee be terminated because of disruptive behavior, poor attendance, excessive personal calls, and unaccounted-for time away from her desk. The Assistant Secretary of State, a long-time friend and acquaintance of the employee’s grandmother, decided to terminate the employee. Later that evening, the Assistant Secretary of State went to the grandmother’s house to tell her about the termination. The grandmother testified that she was told the employee was fired for three reasons: 1) for being a diversion and away from her desk too frequently; 2) for being mean to a co-worker; and 3) for not going to church. The employee was told of her termination the following Monday. Employee did not attend devotional meetings. The Kansas Secretary of State held religious devotional gatherings in his office when his schedule permitted on sporadic Wednesday evenings after the close of business. Employees were verbally invited to attend. The employee was invited to attend between five and ten times, but she did not attend any of the gatherings. No one told the employee she would be terminated for failing to attend the devotional meetings. The Assistant Secretary of State attended on seven or eight occasions. The Deputy Assistant Secretary attended once. None of the employee’s superiors ever discussed church attendance with her, the employee did not believe there was a problem with her nonattendance at the devotional meetings, and she never observed any employee being treated differently because they did not attend church or the after-hours devotional meetings. Direct evidence of discrimination. Still, the court denied summary judgment on the Title VII claim, finding direct evidence of religious discrimination based on the Assistant Secretary of State’s alleged statements to the employee’s grandmother, close in time to the discharge, that the employee was terminated in part because she did not go to church. While the defendants argued that the Assistant Secretary of State was not the real decisionmaker but merely implemented or rubber-stamped the termination decision made by the head of the employee’s division, the court found that this was a triable question due to contradictory evidence. Comment was no stray remark. The court also rejected the argument that the Assistant Secretary of State’s alleged comment was a stray remark not connected to the decision to terminate. The timing of the alleged statement and its context did not permit a benign inference. A relatively short time after deciding to terminate the employee, the individual who stated he made the decision told a witness that part of the reason for terminating her was that she did not go to church. This statement, if believed, proves the fact of discriminatory termination without inference or presumption. Therefore, it amounted to more than a stray remark. Other claims dismissed. As for the employee’s Section 1983 claims, her Kansas Act Against Discrimination claims, and her Title VII claim against the Assistant Secretary of State in his official capacity, the court agreed with the defendants that the claims were barred by Eleventh Amendment immunity.

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