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Archive for the ‘Employment Law’ Category

Gregory Lowrey, owner of the Happy Valley Tattoo parlor, challenged the Utah Department of Workforce Services Appeals Board’s decision that the wages of a former employee, Jacklyn Johnson, were subject to unemployment insurance. Lowry argued that the business was part of his church, UBU Ministries, which includes tattooing among its religious tenets.

On appeal to the Utah Court of Appeals, Lowrey contended that Johnson was an employee of UBU and was fired for just cause. The court found that Lowrey failed to prove any of his claims, including the point that UBU qualified as an exempt religious organization:

Lowrey does not identify anything in the record besides his testimony as to UBU’s religious nature that would establish UBU as an exempt organization under the statutory definition.

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In September 2005, Tanisha Matthews, an overnight stocker at Wal-Mart for nine years, became involved in an impassioned discussion about God and homosexuality with a lesbian co-worker named Amy during a break. When Wal-Mart officials investigated the incident, they learned that Matthews screamed at Amy that God does not accept gays, that gays should not "be on earth," and that they will "go to hell" because they are not "right in the head." After the three-month investigation, Matthews was fired for violating Wal-Mart’s Discrimination and Harassment Prevention Policy, which prohibits employees from harassment based on an individual’s status, including sexual orientation.

Matthews sued Wal-Mart, arguing that Wal-Mart fired her for stating her religious belief that gays will go to hell, which she maintains is central to her Apostolic-Christian faith. If perceived harassment had really spurred Wal-Mart’s action, Matthews said the company would not have let her continue working with Amy for the next three months during the company’s investigation. The trial court granted summary judgment to Wal-Mart, finding no evidence that similarly situated employees had received different treatment.

On appeal, the Seventh Circuit Court of Appeals affirmed the decision, noting the following:

Wal-Mart fired [Matthews] because she violated the company policy when she harassed a coworker, not because of her beliefs, and employers need not relieve workers from complying with neutral workplace rules as a religious accommodation if it would create an undue hardship.               

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Prior to his termination in 2009, Blayne Brisson worked for the city of Hewitt for seven years as a utility maintenance supervisor. He was fired, in part, for looking at pornography on his work computer after an investigator found more than 150 such images on his computer. Brisson was denied unemployment benefits and appealed the decision. However, both the trial court and the Minnesota Court of Appeals upheld the ruling of the administrative law judge, despite the lack of a city policy against the behavior or the commission of a crime. The court stated the following:

Using an employer’s computer to open pornographic e-mail attachments and access pornographic websites is a serious violation of the standards of behavior that the employer has a right to reasonably expect from an employee, even if the employer has not adopted a policy that prohibits the conduct.

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Clarence McCuller, a manager for Wackenhut Corporation, interviewed Lord Osunfarian Xodus for a security guard position. During the interview, McCuller informed Xodus that he would need to cut his dreadlocks off in order to obtain the position. Xodus, a Rastafarian, refused and sued for discrimination based on religious belief. He claimed that McCuller knew of his Rastafarian beliefs while interviewing him, including the belief that dreadlocks symbolize a bond with God based on a passage from the Bible: ‘[N]o razor shall come upon his head; . . . and he shall let the locks of hair of his head grow long.'”

The trial court dismissed Xodus’s claims because there was insufficient evidence that McCuller was aware of the religious significance of Xodus’s dreadlocks. McCuller testified that he was not aware of the Rastafarian religion and did not equate Xodus’ use of the word ‘belief’ with religion. On appeal, the Seventh Circuit Court of Appeals agreed with the trial court. The court noted that the use of the word ‘belief’ and the dreadlocks themselves were insufficient notice to McCuller of the religious nature of Xodus’s hairstyle: “Unlike race or sex, a person’s religion is not always readily apparent.” Because of this, it was necessary for Xodus to expressly bring his religious belief to McCuller’s attention. Accordingly, the dismissal was affirmed.

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M.S. was a 15-year-old male student in 36-year-old Colleen McGraham’s English class. He was also involved in the poetry club and theater group, for which McGraham was an advisor. She loaned him books such as "Catcher in the Rye" and "Fahrenheit 451," but also let him borrow "Harold and Maude," a 1972 movie about a sexual relationship between a teenage boy and an older woman. McGraham eventually asked him if it was "crazy" to "think that there was something between us." M.S. told another teacher, who advised him to tell the principal. Later, M.S.’s mother and an investigator posed as M.S., eliciting more responses from McGraham, who wrote of her distress that M.S. had stopped talking to her:

Because we have both been confused, I have wanted us to talk. But that seems to create problems for both of us. When I have tried to talk to you, you seem to run a bit in the opposite direction. And my nervousness leads me to maybe not be entirely forthright. There is so much I would like to tell you, to discuss with you. But even now writing this, there is fear. You, I am sure, understand the risks involved for me. But you have no idea how happy it makes me to hear from you. And as far as where I am standing, there is only one place I would like to be standing. God, help me!

McGraham told an independent hearing officer that she had learned her lesson and was seeking therapy. The officer then suspended her for 90 days and transferred her to another school.

The New York City School District then filed suit against McGraham for additional punishment, and the trial court vacated the suspension and remanded the case for a more severe penalty. On appeal, however, the 1st Appellate Division of New York reversed the decision, ruling that the suspension and transfer constituted sufficient punishment, noting the following:

The penalty imposed here is not so lenient as to be arbitrary and capricious. The hearing officer’s conclusion that [McGraham] was not like to repeat her actions was necessarily a determination based on [her] credibility, and he was in far superior position than [the trial court] to make that determination.

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Kansas City police officers, Melody Spencer and Kevin Schnell, arrested Sophia Salva on suspicion of using a fake temporary license tag on her car. Salva complained several times during the arrest that she was three months pregnant, bleeding, and needed to see a doctor. The officers disagreed. Spencer said Salva was merely having her period and declined Salva’s invitation to check her underwear: "It’s called a menstrual cycle. I understand. OK? ‘Cause I am a woman." Likewise, Schnell believed that Salva had a case of "jailitis," in which a suspect will invent a reason to go to the hospital to avoid incarceration. Unfortunately, Salva really was pregnant, and the next morning she delivered a premature baby who did not survive. The police department fired the officers for failing to take Salva to the hospital, for the way they treated her, and for failing to recover the counterfeit tag. Spencer and Schnell filed suit to contest the firings. The trial court upheld the firings, and the appeals court agreed, noting the following:

[I]t was within the board’s discretion to terminate [the officers] for violating the department policies by failing to seek medical help for Salva when she requested medical attention . . . and by treating Salva in a discourteous and undignified manner.

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In September 2005, James Chapman was honorably discharged from the Coast Guard for failing to “maintain reasonable and consistent progress” during his probationary weight-loss period. He weighed around 250 pounds and had 32% body fat at the time he was discharged. In April, he had been given six months to shed 70 pounds and 8% body fat.

Chapman asked the Board for Correction of Military Records to vacate the discharge, reinstate him to active duty, or correct his military records so he could retire with 20 years of service. He had been approved to retire in September 2006. Chapman claimed the Coast Guard “condoned for 19 years his marginal weight performance,” and his commanding officer had unfairly singled him out in his last year of service. The board ruled against him, noting that he had previously been placed on weight probation in 1992, 1993, 1998, 2000, 2001, 2002, and 2003.

Chapman then filed a claim under the Military Pay Act, alleging that his commanding officer had used the weight program to remove him from the Coast Guard for filing grievances. The Court of Federal Claims, however, found the board’s conclusion was reasonable based on Chapman’s previous compliance with the weight program through a combination of diet and exercise. The court further noted that compulsive overeating does not qualify as a physical disability in the military.

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