Employment Law Matters : Employment Lawyer & Attorney : Ogletree Deakins Law Firm : Labor Law, Human Resources

A federal district court in Ohio has refused to dismiss a complaint for religious discrimination made by a hospital employee after the employee was fired for refusing to be vaccinated for the flu. The basis of the refusal to be vaccinated was the employee’s veganism. The Court denied the employer’s motion to dismiss, holding that the plaintiff’s beliefs were sincerely held and, therefore, merited protection under the law. Chenzira v. Cincinnati Children’s Medical Center, S.D. Ohio, No. 1:11-cv-00917 (12/27/12).

Sakile Chenzira, a confirmed vegan, was employed by Cincinnati Children’s Medical Center (“CCMC”) as a Customer Service Representative for over 10 years. A vegan does not ingest any animal or animal by-products. Until 2010, Chenzira was allowed to forego a flu vaccine, which included animal by-products, without disciplinary action being taken against her. In 2010, when Chenzira refused the mandatory vaccine, she was fired. In response, she filed a charge of religious discrimination with the EEOC, and ultimately filed a lawsuit in federal court alleging religious discrimination, along with a related state claim for violation of public policy. CCMC filed a motion to dismiss the complaint, arguing that veganism is not a religion. That motion was denied (although the hospital’s motion to dismiss the state law public policy claim was granted).

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) requires a court to determine whether a “cognizable claim” has been pled in a complaint. A plaintiff’s complaint survives such a motion if it contains sufficient factual matter that, if accepted as true, states a plausible claim to relief. In response to CCMC’s argument that Chenzira’s veganism was simply a “social philosophy or dietary preference,” the Court pointed out that Chenzira’s claim was supported by the EEOC’s regulations, which state that “religious practices” include moral or ethical beliefs as to what is right and wrong which are “sincerely held with the strength of religious views.” Further, Chenzira provided to the Court an essay entitled “The Biblical Basis of Veganism,” and cited Biblical passages in support of her claims.

The Court found that in the context of a motion to dismiss, Chinzera set forth a “plausible” claim that she ascribes to veganism with a sincerity equating that of traditional religious views.  (In a largely unsuccessful attempt to clarify that characterization, the court pointed out that “plausibility” falls “somewhere between probability and possibility.”)  In addition, the fact that Chinzira previously had been exempted from the vaccine, along with the EEOC regulations which make it clear that “it is not necessary that a religious group espouse a belief before it can qualify as religious,” helped to support the Court’s decision that it was inappropriate to dismiss Chinzera’s claims for religious discrimination under Federal Rule 12(b)6).

This case was decided on specific facts, and does not create a new category of “religious beliefs,” nor does it mean that veganism must be accommodated in every circumstance.  Importantly, the Court added a comment in its opinion that may be critical to the ultimate outcome of the case: “The Court’s ruling in no way addresses what it anticipates as [CCMC’s] justification for its termination of [Chinzera], the safety of patients at Children’s Hospital.  At this juncture, there is simply no evidence before the Court regarding what, if any, contact [Chinzera] might have with patients, and/or what sort of risk her refusal to receive the vaccination could pose in the context of her employment.”  Here, the Court simply ruled on the sufficiency of the religious discrimination claim filed by Chinzera, finding that she alleged beliefs that may deserve legal protection.  The decision is not a determination on the merits of the claims or the defenses.
 

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It is generally understood that employees can bring claims for hostile environment, wrongful termination, or even “constructive discharge” – where an employee claims that an employer made working conditions so intolerable that a reasonable employee would feel compelled to resign. What is less clearly understood is the extent of the economic damages for which a hospital or health care system may be liable in an employment-related lawsuit. Because a successful litigant in an employment case often is entitled to compensatory damages, lost wages and, in some instances, front pay, a lawsuit by a physician-employee can create the potential for large monetary damage awards. In a clear example of this fact, a Texas jury recently awarded more than $3.6 Million to an Egyptian-born physician who claimed that he was forced to resign after race-based comments from another employed physician. Nassar v. Univ. of Texas Southwestern Medical Center at Dallas, N.D. Tex., No. 08-1337, jury verdict, 5/26/10.

Naiel Nassar, a U.S. citizen since 1990, was born in Egypt and attended medical school there. He then did a medical residency and a fellowship in infectious diseases at the University of California, Davis. In 2001, Nassar was hired by the University of Texas Southwestern Medical Center (UTSW) as an Assistant Professor of infectious disease medicine. Part of Nassar’s duties required that he provide patient care at the Amelia Court clinic, an outpatient HIV/AIDS clinic affiliated with UTSW.

In 2004, UTSW hired Dr. Beth Levine as the chief of its infectious disease program. In that role, Levine directed that Nassar begin billing for the services he provided to the HIV clinic. Nassar objected to the directive, arguing that his salary for clinical services was fully funded by a federal grant, and stating that billing the patients therefore would be “double dipping.” Nassar claimed that Levine also began to “harass” him, making derogatory statement about his race and his Muslim religion, including one comment that “middle easterners were lazy.” His allegations were supported by a clinical supervisor, whose affidavit described a “disconnect between Dr. Levine’s statements and the reality of Dr. Nassar’s work.” Based on his concerns about Levine, Nassar ultimately applied for employment at Parkland Health & Hospital System in 2006. Parkland made preparations to hire Nassar, even drafting a job offer letter, but never formally hired Nassar. Nassar contended that UTSW retaliated against him by blocking the offer from Parkland. Nassar ultimately filed a lawsuit in federal court alleging discrimination and retaliation. Levine strongly disputed Nassar’s allegations, as did UTSW.

At trial, the jury was presented with only two questions: (1) Whether Nassar was constructively discharged because of his race, national origin, or religious preference; and (2) Whether UTSW retaliated against Nassar by blocking or objecting to his employment by Parkland after Nassar complained about his treatment at UTSW. After one hour of deliberations, the jury answered “Yes” to both questions. Two days after the May 24, 2010 verdict, the same jury awarded $3.2 Million in compensatory damages and $438,000 in lost back pay to Nassar. The court now will determine whether Nassar’s claim for lost front pay – which could range from $200,000 to $4 Million – should be paid as part of the award. In addition, Nassar has made a claim for attorney fees, which also will be heard by the court. UTSW has already stated that it will be appealing the verdict and the resulting judgment.

Hospital and healthcare entities that are contemplating direct hiring of physicians should take the time to read the jury instructions and verdict sheet on which the decision in the jury’s decision was based. (Find a copy on my blog at www.employmentlawmatters.net.) Most notable is the court’s instruction in which it defines “constructive discharge” as a resignation from working conditions “so intolerable that a reasonable employee would feel compelled to resign.” The court goes on to point out that to prove constructive discharge, Nassar “need not show that his race, national origin, or religions preference was the sole or even the primary motivation for [UTSW’s] conduct.” He simply had to prove that his protected characteristics “played a motivating part in [UTSW’s] conduct, even though other factors may also have motivated [UTSW].

Employers, including health care entities, should ensure that supervisors and managers are trained to recognize and remedy discriminatory conduct, to assure that such conduct does not become viewed as a “motivating part” of any adverse employment action taken by the employer.
 

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A former editorial writer for the Indianapolis Star who claimed that she lost her job because of her “traditional” Christian beliefs regarding homosexuality was unable to support claims of religious discrimination under Title VII, because she could not show that she met the legitimate business expectations of her employer. Patterson v. Indiana Newspapers, Inc., 7th Cir., No. 08-2050, December 8, 2009.

Linda Coffey worked as an editorial writer for The Indianapolis Star and claims that she left the newspaper as a victim of employment discrimination. Coffey alleged that she was discriminated against because she is a Christian who believes that homosexual conduct is sinful. After she filed a lawsuit, the district court entered summary judgment in favor of the newspaper. That ruling was affirmed on appeal to the 7th U.S. Circuit Court of Appeals. (Note that Coffey filed her lawsuit along with another Star employee, James Patterson, who claimed age, race, and religious discrimination. His claim was dismissed, as well.)

The Indianapolis Star is that state’s largest newspaper. In 2003, Dennis Ryerson was named as the Star’s editor and vice president, and was responsible for newsroom staffing and editorial content. In that same year, Ryerson and Coffey, who was a member of the editorial department at the time, engaged in an e-mail exchange related to an editorial proposed by Coffey on the Supreme Court’s decision in Lawrence v. Texas. In that case, the Supreme Court held that the right to privacy protects adults engaging in private, consensual homosexual activity. Coffey, who describes herself as a “traditional Christian,” proposed an editorial that described, in graphic detail, HIV risks associated with such activity. Although Ryerson refused to publish that column, he said that he was open to publishing a less graphic column on the risks of unprotected sex. That refusal triggered an e-mail exchange that Ryerson perceived as an attempt by Coffey at workplace proselytizing, which he warned Coffey was inappropriate.

During this same period, Coffey had developed a habit of violating the Star’s overtime policy by failing to have her overtime pre-approved. Although she was warned of this violation, Coffey continued to do extra work without pre-approval, often submitting hours that were viewed by the paper as “excessive and unnecessary.” In September 2003, administrative oversight for the Star’s internship program was transferred from Coffey to the newsroom editor, leaving Coffey with a less than full-time position. Although Ryerson offered Coffey a full-time position on the copy-desk, Coffey preferred editorial writing and resigned rather than transfer. On her last day at the Star, Coffey sent an e-mail stating that she had “enjoyed and appreciated” her work on the paper. However, in her lawsuit, Coffey claimed that the proposed transfer to the copy department was an adverse action, based on religious discrimination.

The Seventh Circuit upheld the dismissal of Coffey’s claims, stating that Coffey could not show that she met the Star’s legitimate performance expectations, because the undisputed evidence showed that Coffey continually had violated the paper’s overtime policy. Further, to the extent that Coffey claimed that Ryerson would have permitted someone who did not share Coffey’s religious views to remain in the editorial department notwithstanding violation of company rules, Coffey failed to show that a similarly situated employee (an editorial writer who repeatedly violated overtime rules) who did not hold her same religious beliefs (that homosexual conduct is “sinful”) was treated more favorably and, therefore, Coffey was unable to support her prima facie case of religious discrimination. Moreover, Coffey’s claim of “constructive discharge” was belied by her final e-mail, which expressed no complaint or concerns.

While claims of religious discrimination should be taken seriously by employers, such claims do not overshadow an employee’s duty to meet legitimate job responsibilities. In order to effectively establish the defense asserted by the Star in this case, an employer should have a written job description that sets forth the responsibilities of the employees. In addition, clear, objective, and complete records of the individual employee’s performance should be made and kept by the employer, in order to support the assertion that the employee has not met the employer’s legitimate expectations. In this case, documentation of meeting and warnings associated with Coffey’s violation of the overtime policy was critical in establishing Coffey's failure to meet her employer’s expectations.
 

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