Speaking of Religious Discrimination: Second Appeal to Supreme Court on Former Nursing Home Employee's Termination for Refusal to Pray with Residents

Thursday, December 10, 2015
By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Former nursing home employee, Kelsey Nobach, a Jehovah's Witness, filed a discrimination suit against former employer, Woodland Village Nursing Center Inc. (Woodland), alleging her termination from the facility was the direct result of her religious beliefs.  The suit was originally filed in the U.S. District Court for the Southern District of Mississippi on September 16, 2011.  Nobach claimed that Woodland violated Title VII of the Civil Rights Act of 1964 by unlawfully discharging her from her position as an activities aide as a result of her exercise of her faith.  

Woodland appealed a jury finding in favor of Nobach to the Fifth Circuit Court of Appeals.  The Fifth Circuit reversed the district court's ruling and Nobach filed a petition for writ of certiorari to the United States Supreme Court.  The Supreme Court ruled in Nobach's favor and the case returned to the Fifth Circuit.  

On remand from the Supreme Court, the Fifth Circuit upheld its prior ruling that as a matter of law, Woodland could not be found by a reasonable jury to have violated the Civil Rights Act because of religious discrimination.  Nobach petitioned the Supreme Court for a second time arguing that due to the inherently religious nature of the case, a religious conflict that contributed to the insubordination for which Woodland allegedly fired Nobach, could easily be implied and should be. 


Leading Up to Nobach's Termination.


Nobach worked as an activities aide at Woodland for approximately 13 months.  Nobach stated in her petition that although the nursing home describes itself as "spiritual" on its website, there was never a need for Nobach to divulge her personal religious beliefs as a condition of employment.  

On September 19, 2009, Nobach was called in for an unscheduled shift to work in the facility's main hall (contrary to the hall Nobach normally worked in).  A certified nurse's assistant (and non supervisor) asked Nobach to pray the rosary with a resident and Nobach refused because it was against her religion.  Nobach did not go into detail regarding her religious beliefs, nor did she inform Woodland of her refusal to pray the rosary because she did not believe it was necessary.  Woodland never informed Nobach that praying the Catholic rosary was a job requirement, nor had she ever previously been asked to do so during her thirteen months of employment at the facility.

Nobach was informed of her termination by Woodland's activities director and Nobach's head supervisor, Lynn Mulherin, on September 24, 2009.  When Nobach asked for the reason Mulherin informed Nobach her termination was the result of her failure to assist a resident with the rosary which constituted insubordination.  It was at this time that Nobach told Mulherin of her religious conflict, stating that she was a former Jehovah's Witness and praying the rosary was against her religion.  Mulherin responded, "I don't care if it is against your religion or not.  If you don't do it, it's insubordination."  Nobach v. Woodland Village Nursing Center, Inc., No. 13-60378 at 4 (5th Cir. Aug. 20, 2015).


At Issue (An Interesting Case).


Woodland raised three issues on appeal.  The first issue was that the district court erred in denying its renewed motion for judgment as a matter of law for insufficient evidentiary support for Nobach to bring a Title VII violation claim.  This was the only issue addressed by the Fifth Circuit.  

The Fifth Circuit concluded that nothing in the court record suggested that Nobach provided evidence sufficient to satisfy the Title VII requirement that Woodland be motivated by Nobach's religious beliefs to terminate her employment.  Rather, it is contended that Woodland was not made aware of Nobach's religion as a Jehovah's Witness until after her employment was effectively terminated.  

The Fifth Circuit relied on the wording of Title VII which states that it is unlawful for an employer to terminate an individual's employment "because of such individual's...religion."  Section 2000e-2(a)(1), 42 United States Code (emphasis added).  The Supreme Court provided further guidance on Title's VII language per EEOC v. Abercrombie & Fitch Stores, 575 U.S. _____, 135 S. Ct. 2028 (2015).  This case law puts forth the causation standard that the religion must be a motivating factor of the employer's employment decision.  Therefore, it's not what the employer knows about the employee's religion but rather what motivates the employer's decision to employ or discharge the employee.  Nobach v. Woodland Village Nursing Center, Inc., No. 13-60378 at 7 (5th Cir. Aug. 20, 2015).

In this circumstance, although Nobach's termination was motivated directly by her refusal to assist a resident in the Catholic rosary, sufficient evidence did not exist to find that Woodland intentionally discriminated against Nobach because of her religious beliefs.  Nobach has petitioned the Supreme Court for the second time arguing that she should have been granted an accommodation since the insubordination was the result of a religious conflict, regardless of whether Woodland gained knowledge of such conflict prior to or after Nobach's termination.  

To read the full opinion of the Fifth Circuit, click here


Comments?


Do you believe you have a claim against a former employer for unlawful termination?  Or are you currently facing allegations of employment discrimination?

For a copy of a successful motion to dismiss we filed on behalf of a medical group we represented before the Florida Commission on Human Relations (FCHR) based on a lack of jurisdiction in the case, click here

For a copy of the memorandum of law we filed (discussing the law on this issue) in support of the motion to dismiss referred to above, click here


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Sources:


Nobach v. Woodland Village Nursing Center, Inc., No. 13-60378 (5th Cir. Aug. 20, 2015).

Kass, Dani.  "High Court Asked to Rule on Employees Disclosing Religion."  Law360.  Portfolio Media Inc.: 7 Dec. 2015.  Web.  9 Dec. 2015. 


About the Author:
George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida area.  www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.



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12/10/2015

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