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Mining company doomed in resurrected 'mark of the beast' lawsuitAuthored by: Richard J. Morgan, South Carolina Employment Law Letter
August 7, 2017

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The U.S. 4th Circuit Court of Appeals (whose rulings apply to all South Carolina employers) recently decided a religious accommodation case in which a jury awarded a former employee more than half a million dollars. The Equal Employment Opportunity Commission (EEOC) filed the case on behalf of the employee and was obviously very successful at trial. Read on to see what the 4th Circuit did with the jury’s verdict after the company appealed.
 
Factual background
 
Beverly R. Butcher, Jr., began working for Consol Energy, Inc., in April 1975. In September 1977, he started working at Consol’s Robinson Run Mine in West Virginia. For almost 40 years, he was, by all accounts, a satisfactory employee with no record of poor performance or disciplinary problems. He is also an ordained minister, associate pastor, and lifelong evangelical Christian. He has served in a variety of capacities at his church, including as a member of the board of trustees, part of the church’s worship team, a youth worker, and a participant on mission trips.
 
For 37 years, Butcher’s employment with Consol presented no conflicts with his religious beliefs and conduct. But in 2012, a change to the daily operations of the Robinson Run Mine put his religious beliefs at odds with his job. That summer, Consol implemented a biometric hand-scanner system at the mine to better monitor the attendance and work hours of employees. The system required each employee to scan his right hand when checking in to or out of a shift. The shape of the employee’s hand was then linked to his unique personnel number. The scanner was thought to allow for more accurate and efficient reporting when compared to the previous system, which required the shift foreman to manually track time worked by employees.
 
For Butcher, participating in the hand-scanner system presented a threat to his core religious commitments. He believes in the authenticity and authority of Scripture, and he held a good-faith belief in an Antichrist who “stands for evil” and that the Antichrist’s followers are condemned to everlasting punishment. Butcher’s understanding of the book of Revelation is that the “mark of the beast” brands followers of the Antichrist, allowing the Antichrist to manipulate them. Butcher feared that using Consol’s hand-scanning system would result in him being “marked” and that his willingness to undergo the scan—with his right or left hand—could lead to him being identified with the Antichrist, even though it left no physical or visible sign. His sincere belief in those ideas was not disputed.
 
Butcher took his concerns to his union representative, who alerted Consol’s HR department. According to Butcher, Consol instructed him to provide a letter from his pastor explaining why he needed a religious accommodation. He obtained a letter from his pastor vouching for his deep dedication to Jesus Christ. Butcher also prepared a letter of his own citing verses from Revelation and explaining his view that the hand scanner would associate him with the “mark of the beast” and cause him to serve the Antichrist through his will and actions. He ended the letter by stating:
 
As a Christian[,] I believe it would not be in the best interest of a Christian believer to participate in the use of a hand scanner. Even though this hand scanner is not giving a number or mark, it is a device leading up to that time when it will come to fruition, and in good faith and a strong belief in my religion, I would not want to participate in this program.
 
Butcher took the matter up the chain of command and had a fairly extensive dialogue with management about his concerns. Management would not bend or accommodate his request. However, unbeknownst to Butcher, Consol provided other employees an accommodation that allowed them to bypass the new scanner system altogether. By July 2012, Consol had determined that two employees who could not be checked in or out by a scan of either hand because of hand injuries could enter their personnel numbers on a keypad instead. According to Consol’s own witness, the accommodation imposed no additional costs or burdens on the company, and allowing Butcher to use a keypad would have been cost-free.
 
Nevertheless, Consol continued to resist providing the accommodation to Butcher and instead decided that he would be required to scan his left hand. The disparity in treatment was highlighted by a July 25, 2012, e-mail that simultaneously authorized the keypad accommodation for the two employees with hand injuries and denied the accommodation for Butcher: “Let’s make our religious objector use his left hand.”
 
Butcher was notified of Consol’s decision at a meeting on August 6, 2012. He requested a few days to consider the option of using his left hand in the scanner. He used the time to go “back to the scriptures again” and “pray very hard” about his dilemma. On August 10, he told management that he could not go along with the system in good conscience.
 
Butcher was immediately given a copy of Consol’s disciplinary procedures regarding the scanner, with the promise that discipline would be imposed if he refused to scan his left hand. According to the policy, an employee’s first and second missed scans would result in written warnings. A third missed scan would result in suspension, and a fourth would result in suspension with intent to discharge. Butcher believed the message was clear: “If I didn’t go along with the hand scan system, their intent . . . was to fire me.”
 
Butcher responded to the ultimatum by retiring. He emphasized that he did not want to retire, but when Consol remained unsympathetic, he felt he had no choice but to retire under protest.
Shortly after retiring, Butcher learned about the keypad accommodation Consol had offered the other employees from his union, the United Mine Workers of America. The union then filed a grievance on his behalf under its collective bargaining agreement (CBA) with Consol based on the company’s failure to accommodate his religious beliefs. The union withdrew the grievance, however, when it determined that the CBA did not require the employer to provide religious accommodations.
 
Out of work and facing what he viewed as pressing financial need, Butcher sought new employment. In the summer and fall of 2012, he attended job fairs, looked for job postings, and applied for various jobs, including a position at the one coal mine he knew had a vacancy. After enduring several months of unsuccessful job hunting, he was hired as a carpenter helper by a temporary employment agency. In September 2013, Butcher accepted a better-paying construction position at another company, and he remained at that company for the duration of the trial.
 
EEOC action and trial
 
Butcher filed a discrimination charge, and the EEOC sued Consol on his behalf, alleging the company violated Title VII of the Civil Rights Act of 1964 by failing to accommodate his religious beliefs and constructively discharging him. The EEOC sought compensatory and punitive damages, back and front pay, lost benefits, and injunctive relief.
 
The case was tried before a jury in January 2015. At the close of the EEOC’s evidence, the district court agreed with Consol that the lawsuit was not a punitive damages case. However, the jury ultimately returned a verdict in favor of the EEOC, finding Consol liable for failing to accommodate Butcher’s religious beliefs. The jury made findings regarding the elements of a Title VII reasonable accommodation claim:
  1. Butcher had a sincere religious belief that conflicted with Consol’s requirement that he use the hand scanner.
  2. He informed Consol of the conflict.
  3. Consol constructively discharged him for his refusal to comply with its directions.
The damages were divided between the jury and the court. The court instructed the jury on its authority to award compensatory damages if it found a Title VII violation, distinguished compensatory damages from lost wages, and emphasized that the jury should not consider the issue of lost wages in its deliberations. Nevertheless, the jury provided “salary plus bonus & pension, court cost” in the blank for compensatory damages on the jury form.
 
After conferring with the parties, the trial judge reinstructed the jury on compensatory damages and sent it back for further deliberations. The judge clarified, “The fact that I am sending you back does not indicate my feelings as to the amount of damages or whether damages . . . should be awarded.” Ten minutes later, the jury returned a second verdict awarding $150,000 in compensatory damages. In response to a poll requested by Consol, each member of the jury confirmed that none of the $150,000 award was for lost wages.
 
The court held an evidentiary hearing on equitable remedies, including front and back pay and lost benefits, and on the EEOC’s request for a permanent injunction against Consol to prohibit further violations of Title VII’s reasonable accommodation provision. The parties differed on two issues regarding lost wages and benefits: (1) whether Butcher’s postretirement job search satisfied his duty to mitigate his damages and (2) whether the pension benefits he received after retiring should be offset from any award. The district court determined that Butcher properly mitigated his damages and that his pension benefits were a “collateral source” that should not be deducted from a damages award. The court awarded him $436,860.74 in front and back pay and lost benefits. The court issued a permanent injunction requiring Consol to refrain from future violations of Title VII’s reasonable accommodation provision and provide management training on religious accommodations.
 
The trial court subsequently denied Consol’s motions seeking a judgment, a new trial, and an amendment of the court’s findings on lost wages. The appeal focused on those issues and the denial of punitive damages.
 
4th Circuit’s decision
 
The 4th Circuit rejected Consol’s attempt to retry the question of whether there was a genuine issue or conflict between Butcher’s religious beliefs and the requirement that he use the hand scanner. It pointed to the long-standing standard that as long as there is sufficient evidence that an employee’s beliefs are sincerely held, it is not the employer’s—or the court’s—place to question the correctness or even the plausibility of his religious understandings. The court further noted that Consol did not dispute whether Butcher’s beliefs were sincerely held.
 
Next, the court rejected Consol’s argument that Butcher did not suffer an adverse employment action since he voluntarily retired and was not fired for refusing to abide by the scanner requirement. The court held that he had an intolerable choice—violate his religious beliefs or quit—and that his retirement was a constructive discharge. The court pointed out that Consol completely failed to accommodate Butcher’s beliefs despite his repeated requests. Finally, the employer was aware of a no-cost accommodation that it provided to other employees but refused to make it available to Butcher.
 
The trial court’s curative action in sending the jury back to make certain that the compensatory damages did not include front and back pay was proper. The jury’s award, which was issued after its review of what could and should be included, was correct and was not subject to being overturned on appeal. The court found that Butcher’s efforts to mitigate his damages were sufficient and that his pension could not be used as an offset against back pay damages. Finally, the court agreed with the trial court’s refusal to make the lawsuit a punitive damages case.
 
Lessons for employers
 
This is a case, at least as the court’s opinion described it, in which the employer appeared not to think through the facts before it. The EEOC will look at how similarly situated employees are treated. In this case, a solution was found for other employees, and it would not have required Butcher to violate what everyone seemed to agree was a sincerely held religious belief. Juries look for those things, so it was not surprising that the jury found that the employer failed to reasonably accommodate Butcher’s sincerely held religious belief.
 
The decision again shows that an employee articulating a sincerely held religious belief requires a religious accommodation analysis, even if the employer and its supervisory team disagree with the belief. In this case, the employer did not do that, even though there was a ready solution. Thus, the damages awarded to Butcher by the jury and the court were not surprises.
 
This case points out that litigation should involve the employer taking a step back from its initial decision prior to going full bore into a legal fight. In hindsight, this reader’s observation is that once the accommodation was made for some employees, it should have been provided to Butcher as well.
 
For more information on the BLR, click here. For more information on the South Carolina Employment Law Letter, click here.