10th Circuit: School Administrator Fired Over Religious Comments Has Discrimination, But Not Retaliation, Claim

 In McNellis v. Douglas County School District, (10th Cir., Sept. 10, 2024), the U.S. 10th Circuit Court of Appeals affirmed dismissal of retaliation claims by a high school Assistant Principal/ Athletic Director, but reversed dismissal of his religious discrimination claims under Title VII and the Colorado Anti-Discrimination Act.  Plaintiff Corey McNellis was fired after he complained about the depiction of Christians in an upcoming school play about the 1998 hate-motivated murder of Matthew Shepard in Wyoming. The court concluded the McNellis's speech was not protected by the 1st Amendment because it was made in the course of performing his official duties. It also concluded the McNellis's complaints about being investigated because of his Christian beliefs were not the cause of his firing. In allowing plaintiff to proceed with his discrimination claims, the court said that plaintiff had alleged sufficient facts to give rise to an inference of discrimination.

Factual Issues Remain in Chaplain's Suit Over Ouster for Anti-Trans Blog Post

 In Fox v. City of Austin, (WD TX, Sept. 4, 2024), a Texas federal district court refused to grant summary judgment to either side on several claims in a suit brought by a volunteer chaplain for the Austin, Texas fire department.  Plaintiff was fired because of his blog posts saying that God created each person as male or female, that sex is immutable and that it is unfair to allow males to compete in women's sports. Applying the balancing test in the Supreme Court's Pickering decision, the court concluded that there is a genuine dispute of material fact as to the extent of the disruption that the blog posts caused within the Fire Department.  Thus, the court refused to grant summary judgment on plaintiff's free speech retaliation claim, his free exercise claim and his claim under the Texas Religious Freedom Restoration Act. The court did dismiss plaintiff's claim that his free speech rights were violated when the Department requested that plaintiff write an apology note and it found that the fire chief had qualified immunity in the claim against him for damages.

6th Circuit Reverses Dismissal of Muslim Inmate's Religious Accommodation Complaints

 In Mustin v. Wainwright, (6th Cir., Aug. 27, 2024), the U.S. 6th Circuit Court of Appeals reversed the dismissal of free exercise, RLUIPA, equal protection and certain retaliation claims brought by a Muslim inmate who objected to the manner in which space was made for religious services and objected to inadequate Ramadan meals.  The court said in part:

Mustin contends that defendants ... substantially burdened his ability to attend Jummah and Taleem by (1) “constantly” moving Jummah and Taleem to small rooms that could safely accommodate only half of the attendees, and (2) inconsistently allowing inmates to attend Taleem services and sending inmates back to their cells to accommodate other religious events.... Mustin properly alleged that defendants ... substantially burdened Mustin’s ability to safely attend Jummah and Taleem by forcing him to put his personal safety at risk in order to fulfill his religious obligations by attending services in a room packed with roughly twice the number of people it can safely house....

At this early stage, Mustin has alleged facts sufficient to support an inference that defendants’ provision of expired, offending, and otherwise nutritionally insufficient meals during Ramadan pressured him to violate his religious beliefs or face potential malnutrition.  Mustin alleges that he was served raw food and expired drinks in his breakfast bags, and that his dinner bags often contained pork-based main courses, which Muslims are forbidden from eating.... Mustin plausibly alleged that the non-expired and non-pork-based foods he received during Ramadan were insufficient in quantity and nutrition quality to meet his nutritional needs.

Claims That College Encouraged Jewish Plaintiffs to File Antisemitism Claims Are Dismissed

As previously reported, five Orthodox Jewish faculty members at New York's Kingsborough Community College are suing the school, the faculty union and various faculty members asserting religious hostile work environment and retaliation claims. Two of the faculty member defendants in turn filed cross claims against the school (which is part of City University of New York) alleging breach of contract and First Amendment violations. They alleged that the school was complicit with plaintiffs in attempting to retaliate against them for their expression of anti-Israel views. In Lax v. City University of New York, (Kings Cty. NY Sup. Ct., July 5, 2024), a New York state trial court dismissed the cross claims. The court said that cross claimants had not alleged any retaliatory animus or adverse action taken by the school. The court said in part:

CUNY, as a governmental entity, cannot be held liable for failing to prevent plaintiffs from allegedly violating Wetzel and Perea's right to free speech since CUNY was not charged with any affirmative duty to silence plaintiffs regarding their complaints of discrimination and anti-Semitism....

Having an anti-Israel political agenda is not a protected group under the NYSHRL or the NYCHRL....

... Wetzel and Perea have not alleged that CUNY instigated or encouraged plaintiffs to file their EEOC complaints or to otherwise accuse them of anti-Semitism. 

--[CORRECTED] 

[Thanks to Volokh Conspiracy for the lead.] 

Court Upholds Firing of Nurse with Religious Objections to Flu Vaccine

In French v. Albany Medical Center, (ND NY, June 12, 2024), a New York federal district court upheld a hospital's firing of a nurse who refused for religious reasons to receive the flu vaccine. Plaintiff based her religious exemption claim on teachings of the "Israelite" religion which she adopted in 2018. Rejecting plaintiff's claim that the hospital violated Title VII by refusing to accommodate her religious beliefs, the court said in part:

[T]he Court concludes that Plaintiff's requested accommodation was not reasonable as it was a blanket exemption request which would have allowed her to continue interacting with staff and vulnerable patients while unvaccinated. This exemption would have caused an undue hardship on Defendant.

The court also rejected plaintiff's claims of disparate treatment and retaliation, saying in part:

Plaintiff has not presented any evidence that her religion was a motivating factor in Defendant's decision to suspend and terminate her.

Religious Discrimination Claim for Denial of Personal Leave Moves Ahead

In Balchan v. New Rochelle City School District, (SD NY, May 7, 2024), a New York federal district court refused to dismiss claims of religious discrimination, retaliation for submitting claims of religious discrimination, and a due process claim for stigmatization plus loss of employment. Plaintiff is a Jewish woman who was employed as the school district's Medial Director. At issue are disciplinary charges brought against her for allegedly using personal leave days for a vacation and the stigmatizing report by a hearing officer in connection with those charges. The court details the factual background in part as follows:

Plaintiff observes Jewish holidays including, but not limited to, Yamim Nora’im (a/k/a the “Days of Awe”), Rosh Hashanah, and Yom Kippur..... Plaintiff alleges that her personal scheme of things religious evolved over the course of her life, and that marriage to her Trinidadian husband resulted in her “meld[ing] many of her Jewish religious beliefs into her new Trinidadian identity.” ...

... Specifically, Plaintiff’s “personal scheme of things religious required that she take personal leave during [the Days of Awe] to adjust, meditate, repair her connection to [God], and re-focus . . . .” Accordingly, she planned a trip with her family to Trinidad and Tobago which she alleges was “religious in nature given its relation to the Jewish high holy days” and what had been going on in her personal and professional life....

LGBTQ+ Support Group Fights Texas AG's Demand for Information

Suit was filed this week in a Texas state trial court by PFLAG, a national support group for LGBTQ+ individuals and their families, seeking to set aside civil investigative demands from the Texas Attorney General's Office. PFLAG contends that the demands from the AG's Office indicate that the Attorney General is seeking to identify Texas families that are seeking gender-affirming care for their transgender adolescents. The investigative demands were issued under the Texas Deceptive Trade Practices Act.  The petition (full text) in PFLAG, Inc. v. Office of the Attorney General of the State of Texas, (TX Dist. Ct., filed 2/28/2024), alleges in part:

The goal of the OAG in serving these Demands is neither to enforce Texas law, nor to protect Texas consumers under the DTPA. These Demands are a clear and unmistakable overreach by the OAG in retaliation for PFLAG successfully standing up for its members, who include Texas transgender youth and their families, against the OAG’s, the Attorney General’s, and the State of Texas’s relentless campaign to persecute Texas trans youth and their loving parents. While that retaliation is itself a reason to set aside the Demands, PFLAG is entitled to a temporary restraining order and temporary and permanent injunctive relief because the Demands violate PFLAG and its members’ rights to freedom of petition, speech and assembly and to be free from unjustified searches and seizures, are contrary to the OAG’s authority under the DTPA, and impermissibly seek to evade the protections afforded to PFLAG as a civil litigant. 

In 2022, PFLAG successfully obtained temporary injunctive relief shielding its member families from the Texas Department of Family Protective Services’ (“DFPS”) operationalization of Governor Greg Abbott’s directive to investigate families of transgender youth who receive gender-affirming medical care for the treatment of gender dysphoria—a directive based on the Attorney General’s non-binding opinion claiming that necessary, evidence-based gender affirming medical treatment for transgender youth is per se “child abuse” under Texas law....  And in 2023, PFLAG successfully obtained a temporary injunction at the district court enjoining enforcement of Senate Bill 14 ... which seeks to prohibit the provision and state funding of gender-affirming medical care for the treatment of gender dysphoria of transgender adolescents.....

Through the OAG’s own actions, discovery has been stayed in both [cases].... But through these Demands, the OAG seeks to circumvent the normal discovery process along with its attendant protections, and in so doing, seeks to chill the ability of PFLAG and its members to exercise their free speech and associational rights and avail themselves of the courts when their constitutional rights are threatened.

ACLU issued a press release announcing the filing of the lawsuit. AP reports on the lawsuit.

Principal Can Move Ahead with Claim He Was Nonrenewed Because of Speech to Fellowship of Christian Athletes

In Littlefield v. Weld County School District RE-5J, (D CO, Oct. 19, 2023), a Colorado federal district court refused to dismiss a retaliation claim against a school Superintendent brought by a former high school principal who was demoted and then whose contract was not renewed. Plaintiff, who alleged discrimination because he was a conservative Christian male, claimed that these action against him were taken because of a motivational speech he had given to the Fellowship of Christian Athletes before school started. The court said in part:

Dr. Littlefield has plausibly alleged that Ms. Arnold retaliated against him for his association with the FCA in violation of his First Amendment rights when she issued a negative performance review and demoted him.

Plaintiff's freedom of association claim against the Assistant Superintendent of Human Resources was dismissed.

Jewish Faculty at NY College Can Move Ahead with Hostile Work Environment Lawsuit

In Lax v. City University of New York, (NY Kings Cty. Sup. Ct., Aug. 24, 2023), a New York state trial court allowed five Orthodox Jewish faculty members at Kingsborough Community College to move ahead with their religious hostile work environment and retaliation claims against the school, the faculty union and others (except for certain claims that duplicated ones being pursued administratively). According to the court:

Plaintiffs allege that they and other observant Jewish faculty and staff members at Kingsborough have faced pervasive, anti-religious discrimination from a particular segment of fellow faculty members who are the leaders of a faculty group called the Progressive Faculty Caucus of Kings borough Community College (PFC).... The New Caucus closely coordinated with the PFC.... Plaintiffs claim that the New Caucus members collaborated with the PFC members to dominate campus elections and call for the removal of observant Jewish faculty members, administrators, department chairs, and others at Kings borough. Plaintiffs allege that each of the defendants actually participated in, and aided and abetted, the conduct giving rise to their discrimination and retaliation claims.

Plaintiffs assert, among numerous alleged acts of discriminatory conduct, that ... the PFC and the New Caucus members lobbied against ... observant Jewish candidates running in campus elections; that the PFC members called for the removal of observant Jewish faculty members...; that the PFC organized an anti-discrimination event for a Friday night ... with the purpose of excluding Sabbath-observant Jewish members...; that the Union leaders applied pressure to Kingsborough's chief diversity officer ... to suppress the investigation of the Friday Night Event....

... CUNY claims that it is not responsible for the alleged discrimination against plaintiffs by a faculty group, i.e., the PFC, or the political party composed of certain members of the faculty, i.e., the New Caucus. CUNY maintains that plaintiffs lump all of their disparate allegations together in an attempt to hold it responsible for the alleged actions of the other defendants. 

An employer, such as CUNY, however, can be held liable for an employee's discriminatory act where "the employer became a party to it by encouraging, condoning, or approving it"....

Legal Insurrection reports on the lawsuit.

7th Circuit: Accommodating Teacher's Religious Beliefs as To Transgender Students Imposed Undue Hardship

 In Kluge v. Brownsburg Community School Corp., (7th Cir., April 7, 2023), the U.S. 7th Circuit Court of Appeals in a 2-1 decision upheld a school's dismissal of a teacher who refused on religious grounds to comply with the school policy of calling transgender students by their names registered in the school's official database. In a 79-page majority opinion rejecting the teacher's Title VII claims, the court said in part:

After Brownsburg initially accommodated Kluge’s request to call all students by their last names only, the school withdrew the accommodation when it became apparent that the practice was harming students and negatively impacting the learning environment for transgender students, other students both in Kluge’s classes and in the school generally, as well as the faculty. The district court granted summary judgment in favor of the school after concluding that the undisputed evidence showed that the school was unable to accommodate Kluge’s religious beliefs and practices without imposing an undue hardship on the school’s conduct of its business of educating all students that entered its doors. The district court also granted summary judgment in favor of Brownsburg on Kluge’s retaliation claim. We agree that the undisputed evidence demonstrates that Kluge’s accommodation harmed students and disrupted the learning environment. Because no reasonable jury could conclude that harm to students and disruption to the learning environment are de minimis harms to a school’s conduct of its business, we affirm.

Judge Brennan dissented as to the reasonable accommodation claim. In a 54-page dissent, he said in part:

Kluge’s religious accommodation claim comes down to a fact-intensive inquiry: Did the School District demonstrate that Kluge’s gender-neutral accommodation of calling all students by only their last names causes undue hardship—that is, more than a de minimis cost? The majority opinion says “yes,” but it sidesteps Kluge’s countervailing evidence, fails to construe the record in his favor, and overlooks credibility issues on both sides, which are reserved for resolution by the factfinder. 

... [W]ithout supporting authority, my colleagues hold that the undue hardship inquiry looks only to evidence within the employer’s knowledge at the time of the adverse employment decision.... Considering the entire record, there is a genuine issue of material fact on undue hardship, which we should remand for trial.

Reuters reports on the decision.

9th Circuit Hears Oral Arguments on Fire Chief's Religious Discrimination Claim

On Monday, the U.S. Court of Appeals for the 9th Circuit heard oral arguments in Hittle v. City of Stockton (video of full oral arguments). In the case (full text of district court opinion), a California federal district court rejected religious discrimination and retaliation claims brought by Ronald Hittle, Stockton, California's former Fire Chief. He was fired in part for attending a two-day religious "Global Leadership Summit" with three other city employees on city time and using a city vehicle. First Liberty issued a press release on the oral arguments.

Nuns' Hostile Work Environment and Retaliation Claims Can Move Forward

In Brandenburg v. Greek Orthodox Archdiocese of North America, (SD NY, Feb. 23, 2023), a New York federal district court held that it can proceed to adjudicate hostile work environment and some of the retaliation claims brought by two nuns against the Greek Orthodox Archdiocese and several of its clergy members. The nuns claimed that Father Makris, the school's director of student life and their "spiritual father" subjected them to unwanted sexual attention for 13 to 14 years. According to the court:

[T]he ministerial exception flows from the plaintiff’s status as a “minister.” In this case, however, Defendants’ argument has nothing to do with the fact that Plaintiffs were sanctified nuns; instead, it flows from Father Makris’s status as minister and the alleged rationale for his conduct.... 

These and other cases make plain that the First Amendment does not shield all decisions by religious institutions, whether or employment-related or otherwise, from review. Instead, a court is barred from adjudicating a dispute involving a religious institution “only where resolution of the dispute will require the Court or a jury to choose between competing religious views or interpretations of church doctrine or dogma in order to resolve the dispute.”... 

Defendants do ... assert a religious rationale for ... one relatively minor aspect of Father Makris’s conduct: his kissing of Plaintiffs..... [T]he fact that Defendants proffer a religious rationale does not mean that Defendants should be granted immunity from Plaintiffs’ claims. It merely means that Plaintiffs “may not offer a conflicting interpretation of the teachings of the [Greek Orthodox] Church or canon law to rebut [Defendants’] proffered religious reason.”... [H]owever, Plaintiffs are entitled to offer evidence and argument that Defendants’ proffered religious rationale was not the true rationale for Father Makris’s behavior.

Claims Against Social Worker Who Questioned Foster Parents' Religion Is Dismissed

 In Sarmiento v. Marquez, (ND CA, Nov. 10, 2022), a California federal district court dismissed religious discrimination and retaliation claims against county social work personnel who attempted, ultimately unsuccessfully, to remove a foster child from plaintiffs' care. The court explained:

Plaintiffs contend that, as they were proceeding toward adoption of the child in their care, County social worker Luz Sanclemente asked Sarmiento whether she “[believed] in God,” and whether she “[believed] in Jesus Christ.” ... Plaintiffs allege that defendants thereafter sought to remove the child from their care in “retaliation for not appearing to be Christians.”

However, the court concluded:

Sanclemente’s query into plaintiffs’ beliefs ... did not at all “coerce [them] into acting contrary to their religious beliefs or exert substantial pressure on [plaintiffs] to modify [their] behavior and to violate [their] beliefs.” ... Plaintiffs do not identify any action they took differently based on Sanclemente’s questioning. Plaintiffs do not represent that Sanclemente offered a quid pro quo, such as continued custody of the child in exchange for plaintiffs’ conversion to Christianity....

A First Amendment claim for retaliation requires a “substantial causal relationship” between a plaintiff’s “constitutionally protected activity” and “adverse [government] action . . . that would chill a person of ordinary firmness from continuing to engage in the protected activity.”,,,

Here, the [complaint] only speculates that there was a relationship between (1) plaintiffs’ response to Sanclemente that they are not Christians and (2) defendants’ actions to remove the child from plaintiffs’ care....

Suit Challenges Refusal to Grant Religious Exemption from Covid Vaccine Mandate

Suit was filed last week in a New Jersey state trial court by a Behavioral Support Technician at a state-operated group home who was fired after refusing on religious grounds to comply with the facility's Covid vaccine mandate. The facility refused to grant a religious exemption to plaintiff.  The complaint (full text) in Bowleg v. New Jersey Department of Human Services, (NJ Super. Ct., filed 11/3/2022), alleges that the New Jersey Law Against Discrimination was violated by failing to accommodate plaintiff's religious objections, and by wrongful termination and retaliation that constitute religious discrimination. Thomas More Society issued a press release announcing the filing of the lawsuit.

Prof Who Criticized Native American Grave Repatriation Laws Can Move Ahead with Retaliation Suit

In Weiss v. Perez, (ND CA, Oct. 19, 2022), a California federal district court allowed a tenured professor of physical anthropology at San Jose State University to move ahead against most of the defendants she named in a lawsuit alleging that the University has retaliated her against because of her opposition to repatriation of Native American remains.  In a book that Prof. Elizabeth Weiss co-authored that was published in 2020, she argued that the Native American Graves Protection and Repatriation Act and the California Native American Graves Protection and Repatriation Act "undermine objective scientific inquiry and violate the Establishment Clause of the United States Constitution by favoring religion over science." She expressed similar views in an op-ed and on Twitter.  Weiss claims that because of her speaking on this issue, the University has interfered with her research and limited her professional activities in a number of ways that have reduced her responsibilities and damaged her professional reputation. The Art Newspaper reports on the decision.

Pre-School Teacher Sues After Being Fired For Her Stance On Same-Sex Marriage

A child-care employee who was fired by her employer for refusing to read to her pre-schoolers books that celebrate same-sex relationships has filed suit alleging religious discrimination, wrongful termination, harassment and retaliation. The complaint (full text) in Parisenkova v. Bright Horizons Children's Center, LLC, (CA Super. Ct., filed 10/13/2022), filed in a California state trial court, alleges that plaintiff's Christian religious beliefs prevent her from promoting messages that support same-sex marriage. After an initial informal accommodation, the school's director, who took personal offense at plaintiff's religious beliefs, refused to grant plaintiff a formal religious accommodation.  As a prelude to her dismissal, plaintiff was forced to leave the school building mid-day in extremely hot weather.  Plaintiff was terminated after she refused the requirement that she receive diversity awareness training. Thomas More Society issued a press release announcing the filing of the law suit.

Religious Questioning Of Muslim Travelers By Border Officers Upheld

In Kariye v. Mayorkas, (CD CA, Oct. 12, 2022), three Muslim plaintiffs sued the Department of Homeland Security alleging that border officers routinely and intentionally single out Muslim-American travelers to demand they answer religious questions. The court, in a 71-page opinion in its official format, first dismissed plaintiffs' Establishment Clause challenge. Applying the Supreme Court's test articulated in Kennedy v. Bremerton School District, the court said in part:

The court finds substantial legal authority supporting the government's historically broad authority to implement security measures at the border.... Additionally, the court finds substantial authority holding that maintaining border security is a compelling government interest.

The court rejected plaintiffs' free exercise claim, finding that plaintiffs had not sufficiently alleged a substantial burden on their religious exercise. It additionally concluded that even if there was a substantial burden, officers' questioning was narrowly tailored to advance a compelling governmental interest in protecting borders and preventing potential terrorism.

The court also rejected freedom of association, retaliation, equal protection and RFRA challenges to practices of border officers.

Christian Flight Attendants Sue After Being Fired For Their Posted Views On LGBTQ Rights

Suit was filed yesterday in a Washington federal district court by two Alaska Air flight attendants who allege, under Title VII and state anti-discrimination laws, illegal religious discrimination, hostile work environment, workplace harassment and retaliation.  The flight attendants were fired after they posted on an internal employee message board their opposition to the Airline's support for the federal Equality Act which would add sexual orientation and gender identity as groups protected against workplace discrimination. According to the complaint (full text) in Brown v. Alaska Airlines Inc., (WD WA., filed 5/17/2022):

3.... Marli and Lacey felt compelled by their Christian faith to post one comment each, asking about the impact of the Equality Act on civil rights for religion and women in the workplace.

4. Alaska Airlines responded to Marli and Lacey’s posts by immediately removing Marli and Lacey from their flight schedules, terminating their employment, and disparaging their religious expression and beliefs as “discriminatory,” “hateful,” and “offensive.”

5. When Marli and Lacey—both union members—faced termination because of their religious practices and beliefs, AFA failed to effectively represent them, ignoring civil rights laws prohibiting both employers and unions from discriminating on the basis of religion.

First Liberty issued a press release announcing the filing of the lawsuit. 

Priest's Suit For Reinstatement Dismissed

In Iwuchukwu v. Archdiocese for the Military Services,(D DC, Feb. 11, 2022), the D.C. federal district court dismissed a suit by a former Catholic priest who worked at Georgetown University Hospital and the Department of Veterans Affairs.  After a woman accused the priest of sexually abusing her, the Archdiocese revoked his faculties and endorsement so he could not work as a Catholic pastor.  Legal authorities did not pursue charges against the priest because the statute of limitations had run; the priest submitted polygraph results supporting his denial of wrongdoing.  However the Archdiocese refused to reinstate him.  He sued claiming violation of the 14th Amendment's due process clause and illegal retaliation against him for filing an employment discrimination claim. The court held that the suit should be dismissed under the ecclesiastical abstention doctrine because this:

plainly concerns the composition of the clergy and a matter of church discipline.... Moreover, the conferral of faculties and an endorsement on a priest is a purely religious decision that cannot be reviewed by courts.

The court concluded that his claim for retaliation in violation of the D.C. employment discrimination law should be dismissed because of the statutory exemption for religious organizations.

Teacher Who Refused To Address Transgender Students By Preferred Names Loses Title VII Suit

In Kluge v. Brownsburg Community School Corporation, (SD IN, July 12, 2021), an Indiana federal district court dismissed a suit by a former teacher who resigned rather than comply with a school policy requiring him to address transgender students by their preferred names and pronouns. Plaintiff contended that it violated his Christian religious beliefs to comply with this policy. He sued under Title VII, claiming failure to accommodate his religious beliefs and retaliation. The court said in part:

[A]  name carries with it enough importance to overcome a public school corporation's duty to accommodate a teacher's sincerely held religious beliefs against a policy that requires staff to use transgender students' preferred names when supported by a parent and health care provider. Because BCSC ... could not accommodate Mr. Kluge's religious beliefs without sustaining undue hardship, and because Mr. Kluge has failed to make a meaningful argument or adduce evidence in support of a claim for retaliation, BCSC's Cross-Motion for Summary Judgment is GRANTED....

Indiana Lawyer reports on the decision.