UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA, INDIANAPOLIS
DIVISION
2002 U.S. Dist. LEXIS 3495; 88 Fair Empl. Prac. Cas. (BNA) 1363
March 1, 2002, Decided
NOTICE: [*1] NOT FOR PUBLICATION
DISPOSITION: Defendants' motion for summary judgment denied, except
with respect to plaintiff's claim that Ellen Blice was victim of discriminatory
discipline. Defendants' motion to strike denied. Plaintiff's
motion for partial summary judgment in all particulars granted in part
and denied in part. Plaintiffs'
claims not barred by any statute of limitations.
COUNSEL: For EQUAL EMPLOYMENT OPPORT COMM, plaintiff: JO ANN FARNSWORTH,
EQUAL EMPLOYMENT OPPORTUNITY COMM, INDIANAPOLIS, IN.
For PREFERRED MANAGEMENT CORP, PREFERED MEDICAL CARE INC, PREFERRED
HOME HEALTH CARE, OREFERRED HOME HEALTH CARE defendants: DANIEL E EMERSON,
BOSE, MCKINNEY & EVANS, INDIANAPOLIS, IN.
JUDGES: SARAH EVANS BARKER, JUDGE, United States District Court Southern District of Indiana.
OPINIONBY: SARAH EVANS BARKER
OPINION: ENTRY ON ALL PENDING MOTIONS
I. Introduction and Outline.
This is an employment discrimination case involving alleged religious
harassment and disparate treatment in violation of Title VII, 42 U.S.C.
§§ 2000e et
seq., as amended, 42 U.S.C. § 1981a. The case consists of
two categories of claims: "pattern or practice" claims and individual disparate
treatment claims.
Both categories include allegations of hostile work environment
[*2] and allegations of job discrimination. More specifically, the
complaint alleges that the
defendants (collectively known here in the singular as "Preferred")
engaged in a pattern or practice of unlawful conduct, in that it systematically
created or
condoned a hostile and abusive work environment based on religion,
and systematically engaged in discriminatory employment actions on the
basis of
religion. It also alleges disparate treatment claims on behalf
of seven individual complainants in that Preferred allegedly created or
condoned a hostile and
abusive work environment based on religion affecting six of the
complainants, and unlawfully based specific employment decisions affecting
all seven
complainants on religious criteria.
The case is before us on defendant's motion for summary judgment
as to all claims. We also address here three collateral but significant
matters. Two of
the collateral issues were raised in Preferred's "Establishment
Objections" (which we construe as a motion to strike certain of the EEOC's
statements of
fact and the evidence upon which they rest) and in the EEOC's
Motion for Partial Summary Judgment on Preferred's affirmative defenses.
The third
preliminary [*3] issue was raised by Preferred on
summary judgment. It alleges that some of the EEOC's claims do not rest
on a timely charge of
discrimination so that the EEOC's pattern or practice claim is
time barred, as is the failure-to-hire claim on behalf of Teresa Raloff.
We address these
pending motions and related matters here because they are inextricably
intertwined with the merits on summary judgment.
Because this case is complicated, we acknowledge that, this Entry
is long. Accordingly, we provide the following outline in order to facilitate
access to its
various parts and analyses.
II. Statement of Facts
A. Facts Generally Relevant to All Claims.
B. Facts Pertinent to Individual Claims.
1. Theresa Raloff.
2. Sondra Sievers
a. Facts Pertaining to Religion.
b. Events Leading to Ms. Sievers' Demotion
and Discharge.
3. Ellen Blice.
a. Background.
b. Events Leading to Ms. Blice's Termination.
4. Suzanne Elder
a. Background.
b. Ms. Elder Resigns from Employment.
5. Sherry Stute.
6. Diana DeWester.
7. Mary Mulder.
III. Analysis
A. Summary Judgment Standard
B. [*4] Preliminary Matters
1. Preferred's "Establishment Objections."
2. Charge-Filing Statute of Limitations and Teresa Raloff's Claim
3. EEOC's Motion for Partial Summary Judgment
C. Hostile Environment and Constructive Discharge.
1. The Law of Hostile Environment.
2. Pattern or Practice.
3. Individual Harassment Claims.
a. Sondra Sievers
b. Ellen Blice
c. Suzanne Elder
d. Sherry Stute
e. Diana DeWester
f. Mary Mulder
4. A Note on Coercion
5. Vicarious Liability versus Negligence
6. Constructive Discharge
D. Individual Disparate Treatment Claims.
1. Legal Analysis
2. Sondra Sievers: Demotion, Discharge,
Retaliation.
a. Ms. Sievers' Demotion.
b. Ms. Sievers' Discharge
c. Retaliatory Discharge
3. Ellen Blice
a. Discriminatory Disipline
b. Discriminatory Discharge
i. The Decision Maker
ii. Ms. Blice's Discharge
4. Sherry Stute: Failure to Promote.
IV. Conclusion.
For the reasons explained here, We DENY Preferred's motion for
summary judgment except with respect to the EEOC's [*5] claim
that Ellen Blice was the
victim of discriminatory discipline. We construe Preferred's
"Establishment Objections" as a motion to strike and DENY that motion.
We GRANT the EEOC's
motion for partial summary judgment in all particulars, except
for its request that we find as a matter of law that PMC is a proper defendant
and except for
its request that we find admissible all evidence of Preferred's
conduct before June 18, 1995 and after July 26, 1996. To the extent that
Preferred's
arguments concerning statute of limitations may be viewed as
a motion separate from its motion for summary judgment, we DENY that motion
and
conclude that none of the EEOC's claims is barred by any statute
of limitations.
II. Statement of Facts
A. Facts Generally Relevant to All Claims.
It is a commonplace of summary judgment jurisprudence that we
recite the facts in a light reasonably most favorable to the plaintiff
as the party opposing
summary judgment and that we resolve all disputes of fact in
the plaintiff's favor. These principles are of more than ordinary importance
here, because
many of the facts, and even the facts' nuances, are hotly contested.
Where, as here, the parties [*6] advance different theories
of the case, they tend to
question whether certain facts are even relevant, much less material.
We remind the parties -- and particularly the defendant moving
for summary judgment -- that, since we do not weigh the evidence, we do
not seek a
"balanced" recitation of the facts. We recite the facts "uniformly
favorable" to the non-moving party. Venters v. City of Delphi, 123 F.3d
956, 962 (7th Cir.
1997). Similarly, notwithstanding Preferred's objections to the
EEOC's "selective editing" and other literary devices, the EEOC has no
duty on summary
judgment to be "fair" or "balanced" or "complete" in its presentation
of the facts. Fairness is for trials. Summary judgment tests only whether
the plaintiff
has presented legally sufficient evidence to go to trial. Accordingly,
the EEOC's only obligation on defendant's motion for summary judgment is
to present
admissible evidence tending to raise genuine issues of material
fact.
1. The Company and its Management Personnel.
The Preferred companies consist of four operating companies, n1
a real estate company, n2 and a management company. n3 Pl. Add. Facts,
P 661. All of
the Preferred entities [*7] are owned equally by
Jackie Steuerwald and Greg Steuerwald (husband and wife). Pl. Add. Facts,
P 663. All of the Preferred
companies use the same personnel manual, financial policies,
and employee benefits. Pl. Add. Facts, P 664. With the exception of Preferred
Properties, all
of the Preferred entities have the same officers and board of
directors. Pl. Add. Facts, P 665. Preferred Management Corporation (hereafter
"PMC")
provides training for all of the operating companies; it also
manages the operating companies' payrolls, finances, information systems,
and human
resources. Pl. Add. Facts, PP 667, 667. The defendants here are
the Preferred entities that are engaged in operating home health care services.
We refer
to them collectively throughout as "Preferred."
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- - - - - - - - -
n1 The four operating companies are: Preferred Care Unlimited;
Preferred Medical Care; Preferred Home Health Care-Vincennes, Inc., d/b/a/
Preferred
Home Health Care Vincennes; and Preferred Home Health Care-Vincennes,
d/b/a/ Preferred Home Health Care-Lafayette.
n2 The real estate entity is known as Preferred Properties.
n3 The management company is Preferred Management Corporation.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - -
- - - - - - - - - [*8]
Michael Pyatt was employed by PMC as Director of Human Resources
from October 1994 through 1998. He was a member of the executive management
team. He had authority to hire for any position within the company
and oversight of all decisions to terminate. He was responsible for all
training with
respect to personnel. He also participated in creating and reviewing
company policies. Pl. Add. Facts PP 678-683.
Denise Schrock is Preferred's Chief Financial Officer. As CFO,
her primary responsibility is the company's fiscal condition and its overall
management. She
also helps make company policy. Pl. Add. Facts, PP 684-687.
Diane Christian started as a director of training and development
in 1991; she later became the company's Northern Area Administrator. As
the Northern
Area Administrator, her job duties included visiting the northern
branches and meeting with the branch managers to discuss issues in the
office such as
client load, patient problems, personnel issues and issues in
the health care market. In 1995 or 1996, she became Preferred's Chief Nursing
Officer, which
made her a member of the executive management team. Pl. Add.
Facts PP 688-690.
Ann Parker was Preferred's Southern [*9] Area Administrator
from some time in 1990 through November 1995. As Southern Area Administrator,
she
supervised branch managers in the Vincennes, Jasper and Washington
offices. Pl. Add. Facts PP 692, 693.
Teresa Jennings (later Hedges) was promoted to Southern Area Administrator
in December 1995. As the Southern Area Administrator, she had authority
to
hire and fire employees. Pl. Add. Facts PP 694, 697.
Gregg Johnston was the Director of Program Development at Preferred and was responsible for marketing. Pl. Add. Facts P 698.
Nellie Foster was initially hired as a consultant for Preferred;
in January 1996, became a member of the corporate team as a training and
development
manager. Ms. Foster's previous work experience included working
as a minister of Christian education at the Southwest Church of God.
Sue Klein became the interim branch manager for the Vincennes
branch in mid-November 1995. After being interviewed by a panel, Darlene
Wright sent a
summary of the panel's evaluations to Jackie Steuerwald, who
decided to promote Ms. Klein to the branch manager position. Ms. Klein
had had no
managerial experience prior to being named interim branch manager
at Vincennes. As an interim [*10] branch manager and as a branch
manager, Sue
Klein's responsibilities included overseeing the functions of
the office and the staff, managing the financial aspects of the branch,
hiring employees, and
disciplining employees. Pl. Add. Facts P 712, 734-737.
Wanda Wallace became acting branch manager for the Evansville
branch in February 1996. Ms. Wallace trained and supervised Sherry Stute.
Pl. Add. Facts
PP 738-740.
Since 1990, Darlene Wright has been the personnel director for
the southern district of Preferred. Ms. Wright's responsibilities include
pre-screening of
applications, preliminary interviewing of applicants, making
recommendations to supervisors about applicants, making recommendations
about corrective
actions and discipline, and making recommendations for termination.
Pl. Add. Facts PP 741, 742.
Donna Drew started as a field nurse in 1993. In 1996 or 1997, she was promoted to be RN Supervisor in the Vincennes office. Pl. Add. Facts PP 743-744.
2. Religion and the Work Place.
Preferred's guiding hand is Jackie Steuerwald, the company's co-owner
and chief executive officer. Def. Facts, P 2. Ms. Steuerwald identifies
herself as a
practicing Christian who adheres to [*11] a literal
interpretation of the Bible, which she reads daily. She professes a concept
of salvation by the grace of
God and that she is "born again." Ms. Steuerwald believes that
God directed her to establish PHHC in Vincennes and that Preferred is God's
home health
care agency. She openly shares these beliefs with her employees.
Ms. Steuerwald has prepared a narrative entitled "The Transfiguration of
Preferred," a
brief history of the company's formation, which discusses her
belief that God was involved in Preferred's establishment and is involved
in Preferred's
direction. Def. Facts, PP 9-16. Pl. Add. Facts, P 815.
Ms. Steuerwald believes in "The Great Commission," a religious
directive to go into the world to share her faith. "The world" includes
the work place. Def.
Facts, PP 19-20. Asked whether she believes that religion is
appropriate in the workplace, Ms. Steuerwald responded: "I don't believe
it can be . . . If
you're a person of faith, it can't be separated." Steuerwald
Dep., I, 69. She added by way of explanation: "Well, in Him I live and
breathe and have my
being, and I don't leave my faith at the door when I go to work.
It's who I am. It permeates my thinking, my decisions. [*12]
" Steuerwald Dep., I, 69.
Ms. Steuerwald anoints new branch offices with olive oil and asks
God's blessing on each new office. Def. Facts, P 18. When a new office
is anointed, the
ceremony is conducted during working hours. Pl. Add. Facts, P
810. Ms. Steuerwald also has anointed two existing facilities, in Terre
Haute and Evansville,
because of strife and discord in those offices. Ms. Steuerwald
testified that she discerned demons in those offices and that by anointing
them she believed
she was able to rid the offices of the demons. Pl. Add. Facts,
P 803, 806, 807. Ms. Steuerwald also has anointed individual employees
of Preferred for
healing purposes. She believes that anointing has healing power.
Pl. Add. Facts, P 811, 812.
Ms. Steuerwald defines Preferred's mission as presenting God and
his Son, Jesus Christ, to all of Preferred's employees. Def. Facts, P 23.
Preferred's
mission statement includes that its primary mission is "to be
a Christian dedicated provider of quality health care." Def. Facts, P 30.
Preferred employs an
"evangelism and discipleship" subcommittee, whose members have
prayed for the salvation of employees. Def. Facts, PP 27, 28.
Beginning in June 1995, Preferred [*13] has required
its employees, as a condition of employment, to sign a statement that includes
the words: "I have
examined myself and I agree that I have respected and actively
supported Preferred's Mission and Values during this past year of employment
and I agree
to respect and actively support Preferred's Mission and Values
for the coming year." Def. Facts, P 37; Pl. Add. Facts, P 824. Preferred's
managers and
supervisors are instructed to use the company's values in disciplining
employees because values are considered a standard of performance. Def.
Facts, P
41. Preferred employees are evaluated according to the Mission
and Values Statement. Pl. Add. Facts, P 841. They are also disciplined
on the basis of the
Mission and Values Statement. Pl. Add. Facts, P 843. Religious
references are made on employee evaluations. Pl. Add. Facts, P 842. Employees
were
terminated for violating the values in the Mission and Values
Statement. Pl. Add. Facts, P 844.
Preferred's corporate organizational chart is known as "the wheel."
At its center is the name "Jesus," who represents the rock upon which Preferred
professes to be built. From this center, all of Preferred's departments
radiate as spokes. [*14] Def. Facts, PP 43-44. During comprehensive
orientation or
a management meeting, Ms. Steuerwald had a wheel on the board
with Jesus in the middle and employees' names on the spokes. She told those
in
attendance that, with Jesus as the foundation of Preferred and
the employees there providing the care, Preferred would grow and benefit.
During the
comprehensive orientation that Sherry Stute attended, Ms. Steuerwald
said that it was a vision of hers that the conference room at Preferred
would some
day be a church and that people could come there and pray. Pl.
Add. Facts PP 1246, 1247.
Preferred gives copies of the company's mission statement, statement
of values, definitions, "the wheel," and the "Transfiguration" to all applicants
as
they apply for employment. Def. Facts, P 45. Applicants are informed
that Preferred is a Christian organization and that prayers are recited
at the company;
they are asked how they feel about working for a Christian organization.
Pl. Add. Facts, P 827. Former branch manager Sondra Sievers testified that
Ms.
Steuerwald told her and others that a candidate for employment
who said that there was no room in the work place for religion did not
belong at
Preferred. [*15] Pl. Add. Facts, P 828; Sievers Decl.,
P 11. A Mormon who also was a candidate for employment, was not hired.
The chaplain who
interviewed the candidate told others who had been present at
the interview that Mormonism is a "cult." Pl. Add. Facts, P 828; Fennell
Dep., 28-30.
Preferred offers religious gatherings, which it refers to as "devotions,"
to its employees on a weekly basis. The devotions are facilitated by two
staff
chaplains. Def. Facts, PP 46-47. Preferred states that there
was no corporate-wide policy of mandatory attendance at devotions. Def.
Facts P 48. By
contrast, Ann Parker testified that, as a manager she was required
to be a "role model," which meant, among other things, that she was "expected"
to
attend and was required to embody and exemplify corporate policy.
Ms. Parker also testified that she discussed the manager's responsibilities
with Sherry
Stute when Preferred was going to open an Evansville facility
and one responsibility was to attend devotions. Accordingly, she perceived
devotions to be
mandatory. Parker Dep., pp. 38-40.
Human Resources Director Michael Pyatt professes to be a follower
of Jesus Christ. Mr. Pyatt testified that he is saved or born again
[*16] and that all of
the churches he has attended are fundamentalist. Pl. Add. Facts
PP 756-758. On two occasions, Mr. Pyatt conducted devotions at a branch
office. Pl. Add.
Facts, P 831. Prayer and "script devotion" on various themes
are conducted at the weekly devotions. Pl. Add. Facts P 838. Ms. Steuerwald
sometimes
commented about employees' attendance at devotions. Pl. Add.
Facts PP 833-835, 914, 1488. Employees are not told that they may leave
meetings before
prayer is conducted. Pl. Add. Facts, P 840. The handwritten document,
"Expectations of Branch Manager," included the following items: (1) actively
demonstrate company values, behavior standards of branch manager
(attached) and (2) devotions are held weekly at a scheduled time. Pl. Add.
Facts P
1474.
Sue Klein became the interim branch manager for the Vincennes
branch in mid-November 1995. She was interviewed for the regular branch
manager
position on December 20, 1995 by a panel consisting of Darlene
Wright, Terry Jennings and Chaplain Chuck Harrington. The interview panel
asked Ms.
Klein: "How has your association with Preferred affected you
personally since you were hired?" Ms. Klein responded that her association
with Preferred
[*17] had a tremendous impact professionally and spiritually,
that she loves to share her beliefs about Jesus and is able to do that
at Preferred. The
interview panel asked Ms. Klein: "What significant growth have
you experienced in the past year and what brought it about?" Ms. Klein
responded that
she experienced growth of a spiritual nature and knew that she
rested in God's hands and that God is in charge. The interview panel asked
Ms. Klein to
name three assets that she would bring to the branch manager
position. She responded: "Caring, Dependence on the Lord, and Willingness
and desire to
do the job." The interview panel asked her: "What temperment
[sic] traits and/or characteristics do you have that would enable you to
be an effective
manager?" She responded that she tries to be gentle in approach,
listens to all sides of different situations and "takes all situations
to the Lord in prayer."
Pl. Add. Facts PP 712-722.
The interview panel asked Ms. Klein "What role do you feel evangelism
plays in the position of branch manager?" She responded: "Spreading the
Gospel is
dear to my heart. The opportunities are endless with Preferred.
Shared an opportunity to share the power of God yesterday [*18]
with Lori Merchant,
Physical Therapist." The interview panel asked Sue Klein, "What
motivates you as a person?" She responded: "Faith in the Lord Jesus Christ."
Pl. Add.
Facts PP 723-725.
In evaluating their interview with Ms. Klein, panel members indicated
whether they would hire her and why, including such comments as: "I appreciate
her
strong faith in Jesus and because faith is a priority with her.
She also has a spirit of cooperation; . . . she has Godly values; . . .
Sue's faith is devoted and
inspiring." Panel members wrote the following types of comments
to the question "Could you identify their values in the interview and what
were they?" in
Sue Klein's interview: "Honesty, Integrity and a dependence on
the Lord for guidance; God is her source of wisdom and strength; Faith,
honesty, integrity
and caring; Integrity, Trust in God, Fairness, honesty, non-indispensability."
Pl. Add. Facts P 731, 732.
Darlene Wright compiled the responses of the panel members and wrote the following summary on Sue Klein's interview:
The committee identified Sue as a person
with integrity who exemplifies honesty and fairness. She derives her wisdom
and strength from the
Grace of God. [*19]
* * *
The concerns of the committee were her
lack of knowledge regarding regulations and the financial aspects of the
branch. It was also noted
that she fails to see "The Big Picture"
in regard to Branch Operations. We feel with Sue's willingness to learn,
and intelligence she will succeed
as an effective Branch Manager.
Pl. Add. Facts P 733.
After Sue Klein became acting branch manager for the Vincennes
branch, she told Ellen Blice that Ms. Blice had to attend devotions because
she needed to
learn to be more humble. Ms. Blice declined to attend because
such devotions were contrary to her religious beliefs. Pl. Add. Facts PP
1082, 1083. At the
February 14, 1996, devotions, Ms. Steuerwald handed Ellen Blice
a song sheet for the song beginning "He is a mighty God" and said "You
need to sing
this." Pl. Add. Facts P 1114. Christine Fennell was reprimanded
at one point during her employment at Preferred for missing too many devotions.
Pl. Add.
Facts P 1446.
As a consultant and as a trainer and developer, Nellie Foster
was responsible for teaching the "Leader in the Making" program to corporate
and branch
managers. Ms. Steuerwald described The Leader in the Making program
[*20] to employees as a way to "understand Jesus modeled leadership."
Ms.
Foster spoke about scriptures in her management training and
referenced scriptures, the Bible, and religion in the handouts she distributed
in training
sessions. Corporate and branch managers were required to attend
sessions for the Leader in the Making management program. In conjunction
with the
area administrators, Ms. Foster had authority to decide who met
the qualifications for the Leader in the Making program. Ms. Foster also
did training
sessions in the branches for the branch staff. Pl. Add. Facts
PP 699-708. Preferred's CEO, Jackie Steuerwald, sent a letter to Preferred
staff that reads, in
part: "I would ask every employee at Corporate and each Branch
to be involved in this training [Leader in the Making programs]. You will
be notified by a
memo as to which track you will be a part of." Pl. Add. Facts
PP 709, 710.
Preferred also encourages prayer in the workplace outside of devotions.
For example, prayers are recited before employee meetings. Pl. Add. Facts
P 839.
Sondra Sievers testified that Vincennes branch had prayer at
weekly devotions and then employees began praying for help with anything
and everything.
[*21] Pl. Add. Facts PP 910, 912. Ellen Blice testified
that a prayer was recited before each meeting that Ms. Steuerwald conducted.
Pl. Add. Facts P 1070.
At times, branch manager Sue Klein would grab Sherry Stute's
arm, as well as the arms of other employees, and ask: "Have you prayed
today?" Pl. Add.
Facts PP 1203, 1204. "Leader in the Making" presentations always
started out with prayer. Pl. Add. Facts P 1206. Prayer also was conducted
each day at
comprehensive orientation and branch manager meetings. Pl. Add.
Facts PP 1243, 1251.
As Director of Human Relations, Michael Pyatt did not conduct
any training on religious harassment or religious discrimination for Preferred
employees, nor
did Mr. Pyatt have training on religious harassment. Pl. Add.
Facts, P 845, 847. Preferred's manual, used by directors to train branch
managers, did not
contain any reference to religious harassment. Also see Pl. Add.
Facts, P 846. Preferred branch managers, supervisors, and office managers
-- including
Terry Jennings, Ann Parker, Sue Klein, Wanda Wallace, Nellie
Foster, Kathy Robinson, Rebecca Selm, Karen Lemons, and Carol Smith --
received no training
with respect to religious discrimination or to the [*22]
handling of potential complaints concerning religious discrimination or
harassment. Pl. Add. Facts,
PP 846-856.
B. Facts Pertinent to Individual Claims.
The EEOC has brought hostile environment harassment claims on
behalf of six employees: Sondra Sievers, Ellen Blice, Suzanne Elder, Sherry
Stute, Diana
DeWester, and Mary Mulder; and individual disparate treatment
claims on behalf of seven employees: Suzanne Elder, Sherry Stute, Diana
DeWester, Mary
Mulder (all four alleging constructive discharge); Sondra Sievers
(alleging demotion and discharge based on religion and/or retaliation);
Ellen Blice (alleging
discriminatory discipline and discharge); Sherry Stute (alleging
failure to promote); and Theresa Raloff (alleging discriminatory failure
to hire). n4
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- - - - - - - - -
n4 The listing of these names reflects the passing of Kay Wright,
who had been a complainant with respect both to harassment and disparate
treatment.
The EEOC filed Notice of Intent not to Pursue Relief on Behalf
of Kay Wright, accompanied by a death certificate, on October 31, 2000.
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- - - - - - - - - [*23]
We turn now to the factual background of these claims. In doing
so, we note that many of the facts pertaining to the individual claims
also have a bearing
on the pattern or practice and environmental claims.
1. Theresa Raloff.
T7heresa Raloff applied for the Director of Nursing ("DON") position
in Preferred's Lafayette Branch. She interviewed in February 1995. As part
of the
interview, Ms. Raloff met with Ms. Steuerwald. Preferred acknowledges
that Ms. Steuerwald terminated the interview because of Ms. Raloff's religious
beliefs. Def Facts PP 655-658. Specifically, Ms. Steuerwald asked
Ms. Raloff: "What kind of religion are you anyway?" Ms. Raloff responded:
"Unitarian." Ms.
Steuerwald replied: "You damned humanists are ruining the world"
and told Ms. Raloff that she was going to burn in hell forever. She told
Ms. Raloff the
interview was terminated because Ms. Raloff was inappropriate
for the company. She also told Ms. Raloff that she would pray for Ms. Raloff's
soul. Pl. Add.
Facts PP 1621-1623.
2. Sondra Sievers
a. Facts Pertaining to Religion.
Sondra Sievers served as a branch manager and nursing supervisor
in Preferred's Lawrenceville facility for three years, [*24]
from May 1990 until her
promotion to branch manager at the Vincennes facility in 1993.
Def. Facts P 58. She was demoted from branch manager on November 14, 1995
and
replaced by Sue Klein. Pl. Add. Facts P 989; Def. Facts P 129.
She was discharged from employment on March 8, 1996. Def. Facts P 186.
Ms. Sievers has been a practicing Catholic all of her life. Def.
Facts, P 50. She considers herself to be a Christian in that she is baptized
and believes in
Jesus Christ. Def. Facts, P 51. She does not, however, believe
in the idea of being saved or born again. Pl. Add. Facts PP 898. Ms. Steuerwald
knew that
Ms. Sievers was a Catholic. Def. Facts P 60.
During a luncheon with Ms. Sievers and employees Chuck Harrington
and Ann Parker, Jackie Steuerwald asked Ms. Sievers, while giggling, whether
it is
"really true that you keep the Holy Spirit in a box at the front
of your church?" Pl. Add. Facts P 901; Def. Facts P 67. Ms. Sievers was
embarrassed by the
question and made uncomfortable by it. Pl. Add. Facts P 902.
Ms. Sievers signed Preferred's Mission and Values Statement, although she
was
uncomfortable doing so. She believed she had to sign the document
as a condition of employment. Pl. [*25] Add. Facts PP 906,
907.
As a Preferred employee, Ms. Sievers watched religiously-oriented
videos at work. She believed she was expected to watch the videos because
Ms.
Steuerwald talked about religion in every conversation and in
every meeting that Ms. Sievers heard or attended. As a Catholic, Ms. Sievers
was offended
by the content of the videos and also thought it inappropriate
for Ms. Steuerwald to imply that Medicare should pay for her to evangelize.
Pl. Add. Facts PP
908, 909; Sievers Dep., 215-220. Ms. Sievers perceived prayer
to be a regular aspect of the work place. Pl. Add. Facts, P 910. Ms. Sievers
testified that, at
the Vincennes branch, prayer was conducted at weekly devotions,
and then employees began praying for help with anything and everything.
After Sue
Klein arrived as interim branch manager, prayers were conducted
every morning. Pl. Add. Facts P 912; Sievers Dep., 188-189.
Ms. Sievers' supervisor at the Lawrenceville facility, Ann Parker,
told Ms. Sievers that Jackie Steuerwald knew which employees attended devotions
and
that Ms. Steuerwald expected employees to attend. Pl. Add. Facts
PP 914. n5 She also told Ms. Sievers that Ms. Steuerwald wanted staff meetings
[*26]
opened with prayers. Pl. Add. Facts PP 915.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - -
- - - - - - - - -
n5 Two of Plaintiff's Statement of Additional Facts are Numbered
914. We have restated the content of both but use only the single citation.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - -
- - - - - - - - -
While Ms. Sievers was still working at the Lawrenceville branch,
she told Ms. Parker that she was uncomfortable with the way religion was
"pushed" at
Preferred. Pl. Add. Facts P 916. Ms. Parker recommended that
Ms. Sievers read the book, "This Present Darkness," a book about spiritual
warfare, which,
she said, might help Ms. Sievers understand the beliefs of Jackie
Steuerwald, Darlene Wright and other people with whom Ms. Sievers was working.
Pl.
Add. Facts PP 917, 918.
Ms. Sievers received religious memos at work that were distributed
in her tray or mailbox. As a branch manager, she also received from Mike
Pyatt's
newsletters called "Focus on Managing," some of which contained
Biblical and religious references. Pl. Add. Facts PP 919, 920.
At various business meetings which Ms. Sievers attended, religion
was a topic of discussion. [*27] Jackie Steuerwald conducted
presentations and
meetings which Ms. Sievers attended in which Ms. Steuerwald talked
about her religious beliefs. Pl. Add. Facts PP 922, 923. Marketing Director,
Gregg
Johnston, held a branch-manager meeting which Ms. Sievers attended
in which he used the Bible, and he gave the attendees a book that related
to the
Bible. Human Resources Director Pyatt also conducted meetings
at which he injected religious topics. So did Johnny Garrison, one of Preferred's
chaplains
who also conducted devotions. Pl. Add. Facts PP 924, 925, 926.
As a branch manager, Sondra Sievers was expected to attend all branch meetings.
Pl. Add.
Facts P 927.
Ms. Sievers was uncomfortable attending some meetings. At one
meeting, Ms. Steuerwald discussed her visit to Cuba, during which she distributed
Bibles
to Cubans. Ms. Sievers was uncomfortable because she did not
expect to hear about passing out Bibles in a business meeting. Def. Facts,
PP 88-90; Pl.
Add. Facts P 928. At the same time, she felt excluded or marginalized
by not being invited to participate in certain events related to business.
She felt
slighted that Jackie Steuerwald did not invite her to attend
a prayer meeting at [*28] Ms. Steuerwald's home. She also felt
slighted that she was not
invited to attend a religious video showing at the Vincennes
office. Ms. Sievers thought these exclusions revealed that Ms. Steuerwald
did not believe that
she fit in at Preferred. Pl. Add. Facts P 932, 933.
b. Events Leading to Ms. Sievers' Demotion and Discharge.
Ms. Sievers' first performance evaluation was at the end of her
first six months. Her supervisor at the time, Annette Dodd, identified
concerns about her
performance, including comments that she at times appeared "too
good to learn from her subordinates," and that she did not appear focused
at work. Def.
Facts P 93. Thereafter, at her annual evaluation, Ms. Sievers'
new supervisor, Ann Parker, observed that Ms. Sievers appeared to have
undergone a
change in her attitude because she was taking a more positive
and progressive approach to problems. Def. Facts P 94. Indeed, on her annual
evaluation
of June 27, 1991, Ms. Sievers received ratings of 7, 8, 9, or
10 in 30 categories. Ratings of "7" or "8" mean "consistently over achieves"
and ratings of "9"
or "10" mean "outstanding." Pl. Add. Facts PP 937, 938. On her
last review before her promotion to Vincennes, [*29] it was
noted that Ms. Sievers
needed to improve the timeliness of "difficult" personnel evaluations
of her subordinates. Def. Facts P 95.
In Ms. Sievers performance evaluation for May 1994, Ann Parker
noted that there had been some hard feelings in the Vincennes office relating
to Ms.
Sievers management style, that Ms. Sievers needed to work on
developing a "softer, less controlling 'people side,'" and that she needed
to be "more
specific" in her communications. Two employees transferred to
Lawrenceville ostensibly because of Ms. Sievers approach to managing the
Vincennes
branch. Def. Facts PP 96, 97.
On her May 1995 evaluation, Ms. Sievers received a "2.3" out of
"3"; "3" was the highest possible rating. Def. Facts P 98. Before writing
up the May 1995
evaluation, Ann Parker sent out surveys to people in the office
and field staff. Ms. Parker does not remember receiving any negative responses
from these
surveys regarding Ms. Sievers' work performance. Ms. Parker,
who served as Ms. Sievers' supervisor until November 1995, thought Ms.
Sievers was doing
a good job and was working hard at being a good leader and manager.
Ms. Parker had been instructed in a management meeting to include
[*30] "trust in the Lord" as part of the employee evaluation process.
Accordingly, her
May 1995 evaluation of Ms. Sievers included a section addressing
Preferred's values, and Ms. Parker wrote the words "in the Lord" next to
the value of
"trust." Pl. Add. Facts PP 943, 944, 946; Def. Facts P 99. The
"trust in the lord" reference came from Preferred's "behavior tags." For
the value "Trust in the
Lord and not your own understanding," the related behavior tags
are "assured reliance," "constant verbal expression of faith," and "positive
response to
negative situations." Preferred managers were expected to comply
with the behavior tags. Pl. Add. Facts PP 945-948.
On October 24, 1995, Ms. Steuerwald conducted a "Values Presentation"
at Preferred's Vincennes branch. During the meeting, Ms. Steuerwald shared
how
God had changed her life and asked each of the participants to
share how they had come to Jesus Christ. Ms. Sievers was uncomfortable
with the question
because she never had a "big conversion" and knew that Ms. Steuerwald's
perception of how one becomes a Christian was different from hers. In her
response to Ms. Steuerwald's query, Ms. Sievers stated that she
was very fortunate to have [*31] been born into and raised
by a Catholic family and that
God had always been a part of her life. At the meeting, Sherry
Stute also talked about joining a Catholic church and becoming Catholic.
Ms. Sievers was
uncomfortable with this meeting. She felt that it involved sharing
personal information and she did not believe Ms. Steuerwald's past sins
were any of her
concern; additionally, she felt that Ms. Steuerwald was putting
people on the spot to talk about their personal relationships with God.
Def. Facts PP
112-116; Pl. Add. Facts P 972.
On November 2, 1995, at a breakfast meeting in Vincennes with
Chuck Harrington and the branch managers for the southern branches, Ms.
Steuerwald
stated that if her managers were not where they should be spiritually,
they should resign. Ms. Sievers believed that Ms. Steuerwald was looking
directly at
her when she made this remark. After making the comment that
if her managers were not where they should be spiritually, they should
resign, Jackie
Steuerwald said: "I have done this with my top management people,
and your area director, Ann Parker, has resigned." The next day, Ms. Sievers
spoke
with Ms. Steuerwald for two hours by phone about this statement,
[*32] because Ms. Sievers interpreted the remark as directed at her.
She told Ms.
Steuerwald that she, too, had a personal experience of God, to
which Ms. Steuerwald responded: "Well, you know, you've never said this
to me before."
Ms. Sievers was offended by Ms. Steuerwald's response because
she thought it was none of her business. Ms. Sievers believed she had to
make some
profession of faith to Ms. Steuerwald in order to keep her job.
Def. Facts PP 117-119; Pl. Add. Facts PP 975-978.
In September and October 1995, Preferred's management team developed
a survey relating to employee satisfaction. Entitled "Your Opinion Counts,"
the
survey covered a number of areas, including working conditions,
training, compensation, and advancement opportunities. It also included
the question:
"Are the Company's Values actively promoted and modeled by supervisors
and managers?" And the request: "Please make any other comments or
suggestions that you believe would help Preferred be more effective
and be a better place to work and serve the Lord and our customers," providing
space for comments. Def. Facts P 108, 109; Pl. Add. Facts PP
962, 963.
Human Resources director Mike Pyatt distributed the survey
[*33] to all of the employees in the Vincennes branch on October
25, 1995. Def. Facts P 111.
As he did so, he was asked by an employee what would happen as
a result of the survey. Mr. Pyatt responded that "they were looking at
all the managers
and if they weren't where they thought they should be, there
would be changes made." Pl. Add. Facts PP 965, 966.
Fifty-nine surveys were given out. Thirty-four employees responded.
Def. Facts P 123. Some of the responses were negative with respect to Ms.
Sievers.
Def. Facts P 124. The negative responses included: (1) "We have
lost a lot of very good, kind, caring office and field staff because of
the branch manager
and it sure is a shame;" (2) "Sondra does not respect our opinion.
If we voice our opinion she will usually disagree and then she will be
angry"; (3)
"Sondra has us all very unhappy with her lack of responsibility,
caring or understanding"; (4) "Sondra does not like others, is either [sic]
revengeful with
field staff, clients and families"; and (5) "If a person isn't
liked or if a person does a job well, branch manager will do anything to
create problems for the
person." Def. Facts P 125. These comments appeared on three of
the thirty-four [*34] surveys returned to Mr. Pyatt. Pl. Resp.
to Def. Facts P 125.
After receiving the results of the survey, on November 14, 1995,
Ms. Steuerwald and Mr. Pyatt went to Vincennes to inform Ms. Sievers of
her demotion.
Def. Facts P 127. Ms. Sievers met with Mr. Pyatt who addressed
the survey results and told Ms. Sievers that she would be removed from
her position,
placed in the Leader in the Making program with Nellie Foster,
and re-evaluated by December 31, 1995. He also gave Ms. Sievers three documents.
The
first outlined the "qualifications" of a Leader in the Making
as (1) having a teachable spirit, (2) having love for one another, (3)
honoring others above self;
(4) being approachable; (5) willing to ask others other for help
and advice; and (6) willing to invest in others. The second, entitled "Confess-Repent-Turn,"
outlined what Ms. Sievers needed to accomplish by December 31,
including (1) restoring broken relationships with Cherie Deem, referral
sources, patients
and staff; (2) submitting to authority; (3) regaining trust and
respect of the staff and community; and (4) consistently walking in a blameless
way to be
above reproach. The third document was called "Characteristics
of [*35] Broken People Prepared for Revival." Def. Facts PP
133-136. After the meeting,
Mr. Pyatt told Ms. Sievers to take three days off and pray and
think about things. Def. Facts P 138 and Pl. Resp.
Regarding leadership training, Nellie Foster, Preferred's training
and development manager and also a minister, had developed the "Leader
in the Making"
program discussed earlier; the program included twenty-four lessons
and Ms. Foster was going to customize a training program for Ms. Sievers'
circumstances. Def. Facts PP 127, 128. The customized training
involved meetings between Ms. Sievers and Ms. Foster on December 5 and
6, 1995.
The December 5 meeting was religiously-oriented. Pl. Add. Facts
PP 1018, 1019. At the December 6 meeting, Ms. Foster presented the "Lordship
Ladder"
to Ms. Sievers. Ms. Foster asked Ms. Sievers where she was on
that ladder, to which Ms. Sievers responded, "Well, I'm certainly not on
the sixth step,"
signifying a life filled with peace. Def. Facts PP 166, 167.
Ms. Foster then asked Ms. Sievers: "What was the last sin you committed?"
and "What was the
last thing you asked God forgiveness for?" Ms. Sievers responded,
"I am a Catholic, and I discuss my sins with my [*36] priest,"
and began crying. Def.
Facts PP 168, 169. Ms. Foster took Ms. Sievers' hand and asked
Ms. Sievers: "Is it okay if I pray over you?" Ms. Sievers but testified
that she was "totally
offended" at the suggestion that Ms. Foster pray over her, but
acquiesced only because she "was already in such hot water with my job."
Def. Facts PP
170, 171.
At the December 6 meeting, Ms. Foster told Ms. Sievers that if
it were she, she would quit. Ms. Sievers told her that she did not intend
to quit. Pl. Add.
Facts PP 1023, 1024. Ms. Foster concluded that Ms. Sievers was
so devastated by the survey results and so torn by the damaged relationships
in the
office that it would have been unfair to put Ms. Sievers back
in her old position. Def. Facts PP 174, 175. Accordingly, Ms. Foster told
Ms. Steuerwald that Ms.
Sievers was not a candidate for leadership training. Def. Facts
P 178. Ms. Steuerwald decided not to return Ms. Sievers to the branch manager
position.
Instead, she offered her a quality assurance position. Def. Facts
PP 179, 180.
On December 7, 1995, Ms. Sievers met with Ms. Foster, Darlene
Wright (personnel director for the southern branches), and Sue Klein. During
this meeting,
Ms. [*37] Foster informed Ms. Sievers that she would
not be reinstated to the branch manager position, but that the company
was offering her a position
in quality assurance. She was also informed that Sue Klein would
become the new branch manager at Vincennes. The following week, Ms. Sievers'
demotion was formalized in a meeting with Ms. Klein, Ms. Wright,
and Mr. Pyatt. Ms. Sievers accepted the quality assurance position at a
reduced rate of
pay. Her performance in the quality assurance position was always
satisfactory. Def. Facts PP 181-184; Pl. Add. Facts PP 1035, 1039.
On January 31, 1995, Ms. Sievers' attorney, L. Edward Cummings,
wrote a letter to Ms. Steuerwald questioning whether religion had played
a part in Ms.
Sievers' demotion. The letter read in part:
There was no secret . . . that [Sondra
Sievers] was a practicing Catholic and was not comfortable with some or
even much of the religious
materials and indoctrination which was
provided to your employees. When you had a discussion with her critical
of her performance, the
materials provided her were clearly
religious telling her to confess and repent. Subsequently, she was placed
in a program, Leader in the
Making, in which [*38] she
sincerely attempted to perform to your and your company's expectations
so that she could return to her position
as manager. As you know, the entire
focus of the "Leader in the Making" was religious and her success or lack
of success in the program
related to how she characterized her
relationship with Jesus Christ. She and Ms. Foster had a particular discussion
involving something called
the Lordship Ladder which was not to
Ms. Foster's satisfaction and the following day Ms. Sievers learned that
she was no longer going to be
returned to her position as branch manager.
Def. Facts, P 185; Pl. Add. Facts P 863.
Slightly more than a month later, on March 8, 1996, Ms. Steuerwald
terminated Ms. Sievers at a meeting which Mr. Pyatt also attended. Ms.
Steuerwald
opened the meeting by saying to Ms. Sievers: "I understand that
you have some questions about your demotion and that you feel it has to
do with
religious discrimination." Pl. Add. Facts P 1052. The parties
do not, of course, agree as to the reasons for Ms. Sievers' termination.
Preferred argues that
the discharge was performance related. The EEOC argues that it
was based on Ms. Sievers' failure to conform to Ms. Steuerwald's
[*39] religious views.
We defer our discussion of the underlying facts until the analysis
portion of this entry.
3. Ellen Blice.
a. Background.
Ellen Blice began working at Preferred's Vincennes facility in
April 1994. She was discharged on February 14, 1996. Def. Facts PP 199,
269; Pl. Add. Facts P
1002.
At the time of her hire, Ms. Blice had been a Registered Nurse
for less than a year. She had worked as a student nurse extern in the emergency
room at
Wellborn Baptist Hospital from December 1992 to May 1993 and
from then until October 1993 as a graduate nurse in Wellborn's emergency
room
performing the duties of a registered nurse. On October 31, 1993,
Ms. Blice received her license and became a RN. From October 31, 1993 until
mid-April
1994, Ms. Blice worked as a registered nurse at Wellborn. At
the time of her hire, Ms. Blice had not had home health care experience.
Def. Facts and Pl.
Resp. P 205. Ms. Blice received positive six-month and one-year
performance evaluations prepared by Ms. Burke. Def. Facts P 206.
As a field nurse, Ms. Blice was responsible for coordinating total
client care, which included conducting the initial assessment, determining
what other
services [*40] are appropriate (e.g., home health
aids, therapists), and coordinating the client's eventual discharge. To
qualify for Medicare, a patient
must have a skilled nursing need and must be homebound. Skilled
nursing needs include the need for instruction from nurses on how patients
were to
care for themselves, monitoring the patient's, medication needs,
and watching for changes in the patient's condition. Def. Facts PP 210-212.
Ms. Blice was a life-long Catholic. During her interview with
Darlene Wright, Ms. Wright, personnel director for the southern branches,
informed Ms. Blice
that Preferred was a Christian company, but did not discuss religion
on a personal level or ask Ms. Blice about her religion. Ms. Blice also
interviewed with
Barb Burke, who did not mention religion at all. Def. Facts PP
196, 199-203. Ms. Burke offered Ms. Blice a position and Ms. Blice accepted.
Def. Facts P 204.
Although Ms. Blice expressed no offense about Preferred's Christian
values and mission statement, she was uncomfortable with management's persistent
use of prayer. She asked Sue Klein not to pray before giving
her an answers to questions of a professional nature. She also complained
to another
employee [*41] that she didn't need Sue Klein's prayers.
Pl. Resp. to Def. Facts P 215. During the week preceding her termination
on February 14, 1996,
Ms. Blice told Sue Klein six times not to pray over her all the
time. Pl. Add. Facts P 1076.
Ms. Blice thought that it was inappropriate to have religiously-oriented
documents placed in her mailbox and was offended by receiving such documents
at
work. Pl. Add. Facts PP 1078, 1079; Def. Facts P 229. Ms. Blice
testified that on several occasions she received documents relating to
religion, broken or
unbroken spirits, Psalms, scriptures, and prayers. Def. Facts
and Pl. Resp. P 232. Although Ms. Blice routinely discarded the materials,
she told Ms. Klein
that she did not want to receive such religious materials in
her mailbox. She said: "I don't need this stuff in my mailbox because I
already know the truth."
Def. Facts and Pl. Resp. P 231; Pl. Add. Facts P 1080 and Def.
Resp. Ms. Blice continued to receive the religious materials. Pl. Add.
Facts P 1081.
Additionally, there was a prayer before each of the meetings that
Jackie Steuerwald conducted. During a meeting called Home Care 101, Ms.
Steuerwald
asked a series of questions and gave prizes to the [*42]
individual who was the first to answer correctly. The correct answers to
the questions at the
Home Care 101 meeting usually were "Jesus," "God" or "the Bible."
Ms. Blice testified that she was uncomfortable at the meeting. She thought
it was a
waste of time because Ms. Steuerwald spent too much time talking
about religion and not enough about home care. Pl. Add. Facts PP 1068-1072;
Def.
Facts P 219, 221.
Similarly, Ms. Blice understood that devotions at the Vincennes
facility were optional during Sondra Sievers' management, but that, after
Sue Klein became
acting branch manager, Ms. Klein told her that she had to be
at devotions because she needed to learn to be more humble. Ms. Blice did
not attend
devotions because they were contrary to her religious beliefs.
Pl. Add. Facts P 1082, 1083. On the day that she was terminated, Ms. Blice
had been told to
go to devotions. Pl. Resp. to Def. Facts P 216.
Ms. Blice perceived a change in the atmosphere at work after Sondra
Sievers was demoted and Sue Klein was promoted to branch manager in November
1995. Prior to becoming branch manager, Sue Klein was complimentary
of Ms. Blice's work. After Ms. Klein and Karen Lemons became managers,
the [*43]
atmosphere in the office became more overtly religious. Pl. Add.
Facts PP 1073, 1074. Before Sue Klein assumed the interim branch manager
role, she had
occasionally invited Ms. Blice to attend her church. Ms. Blice
always declined, but was not offended by the offers, nor did she feel any
pressure to accept
them. Ms. Blice described her relationship with Ms. Klein before
Ms. Klein's promotion as "great." After Ms. Klein assumed the managership,
however, Ms.
Klein always prayed before and after discussing any problem.
When Ms. Blice was part of a group and the group was praying, she "just
kinda sat there
and let them pray." Def. Facts PP 222-226; Pl. Add. Facts PP
1075.
Ms. Klein told Ms. Blice that she needed more prayer in her life.
Def. Facts and Pl. Resp. P 234. She also told Ms. Blice that "attending
devotions would be
good for her to learn to become more humble" and that Ms. Blice
had to be at devotions on Tuesday because she needed to learn to be more
humble. Def.
Facts and Pl. Resp. P 235. Nevertheless, Ms. Blice continued
to avoid devotions because they were contrary to her beliefs. Def. Facts
P 236; Pl. Add. Facts P
1083.
b. Events Leading to Ms. Blice's Termination. [*44]
On a Friday afternoon in November 1995, Ms. Blice received an
order from Dr. Shelton to remove a patient's catheter and to reinsert it
some time over the
weekend. Ms. Blice paged Donna Drew, who was the on-call nurse
for the weekend. As the on-call nurse, Ms. Drew was supposed to visit patients
on an
as-needed basis over the weekend. Ms. Drew did not respond to
Ms. Blice's page. When Ms. Drew did not respond, Ms. Blice informed Karen
Lemons, her
supervisor, that she needed to see Ms. Drew. Ms. Lemons indicated
that Ms. Drew had left for the day. Ms. Blice informed Ms. Lemons of the
change in the
patient's condition, and Ms. Lemons said she would inform Ms.
Drew of the change.
Ms. Drew received a page at 9:57 a.m. concerning the catheter
patient. Ms. Drew spoke with Dr. Shelton, at 10:08. Dr. Shelton told Ms.
Drew that he left
specific orders to replace the catheter if the client was unable
to void. Ms. Drew talked to Ms. Blice about the situation by 11:27 a.m.
She told Ms. Blice that
she was with her daughter at a sporting event and could not leave
to take care of the patient right then. Ms. Drew did not go to the patient's
house to
replace the catheter until 1:30 p.m. Sue Klein, [*45]
the Acting Branch Manger, believes that the optimal response would have
been for Donna Drew to
replace the catheter immediately. Pl. Add. Facts, PP 1084-1099;
Def. Facts PP 238-252.
Throughout the morning, the patient did not complain of any discomfort
and a home health aid was present in the patient's home. Def. Facts P 253.
The
patient was not pleased with Ms. Drew when she arrived; during
Ms. Blice's next regularly scheduled visit, the patient asked that Ms.
Drew not come back.
Def. Facts P 257.
The following Monday morning, Sue Klein, Ellen Blice and Karen
Lemons met. Ms. Klein and Ms. Lemons instructed Ms. Blice to be certain
to make direct
contact with the on-call nurse in the future whenever a patient's
condition changed. Although Ms. Blice did not accept any responsibility
for the catheter
incident because she felt she had acted appropriately by informing
the nursing supervisor, she apologized and indicated that she would give
proper
notification in the future.
Toward the end of Ms. Blice's employment, she attended a meeting
with Sue Klein, Donna Drew, Karen Lemons, and Terry Jennings. At the end
of the
meeting, Ms. Blice was encouraged to be more humble, to look
to God [*46] and things would be better and she wouldn't have
as much chaos in her life.
On February 8, 1996, Ms. Blice received a formal verbal warning
about the catheter incident. Donna Drew did not receive a formal verbal
warning, nor was
any corrective action form was put in her file regarding her
role in the incident. Pl. Add. Facts PP 1100-1105; Def. Facts PP 255, 256.
In early February 1996, a surveyor from the State audited some
of Preferred's client charts based on a complaint received from the client
involved in the
catheter incident. As a result of the survey, Preferred received
a deficiency for lack of communication in the area of "coordinating client
care." The state
surveyor had found two charts where the primary nurse had failed
to coordinate with the on-call nurse; one chart involved the catheter matter
where Ms.
Blice was the primary nurse, while the other chart, on which
Ms. Drew was the primary nurse, involved a failure to communicate a medication
change. In
response to the State's deficiency, Preferred was required to
prepare a plan of correction. The plan included counseling both primary
nurses involved on
the appropriate procedure for communicating changes in a client's
condition. [*47] As the primary nurse involved in the catheter
incident, Ms. Blice
received a verbal warning for her part in the miscommunication.
Def. Facts PP 262-267.
Ms. Drew said she was not at fault over the incident. She did
not receive any formal discipline and was not counseled about the incident
until February 16,
1996, two days after Ms. Blice was terminated. Pl. Add. Facts
PP 1104-1105.
Ms. Blice asked to speak with Ms. Steuerwald about the verbal
warning. Ms. Steuerwald came to Vincennes on February 14, 1996. At devotions
that day,
Ms. Steuerwald handed Ms. Blice a song sheet for the song beginning
"He is a mighty God" and said "You need to sing this." Ms. Blice did not
sing the
song. Ms. Steuerwald stared at Ms. Blice for the remainder of
the devotions period. Def. Facts PP 269-272; Pl. Add. Facts PP 1111-1116.
Following the conclusion of the devotions, Ms. Blice met with
Ms. Steuerwald, Sue Klein, and Terry Jennings. Sue Klein opened the meeting
with prayer. Ms.
Blice explained her disagreement with the verbal warning she
had received. She also said that the state auditor had not seen the whole
truth regarding
the incident. Ms. Klein acknowledged that management had not
shown the [*48] state auditor all of the information regarding
the incident. Def. Facts PP
273, 274 (and Pl. Resp.), 275 (and Pl. Resp.).
Preferred states that Ms. Steuerwald discovered during this meeting
of February 14 that Ms. Blice had discharged a patient prematurely when
the patient
had been at risk for congestive heart failure. Ms. Steuerwald
states that, had she known the facts surrounding the catheter patient earlier,
she would
have discharged Ms. Blice when she found out. Def. Facts PP 280-301.
Preferred asserts that Ms. Blice was discharged because of Ms. Klein's
and Ms.
Steuerwald's assessment of her "performance" and "attitude."
Def. Facts P 301, n. 4. Ms. Blice was terminated that day.
4. Suzanne Elder
a. Background.
Ms. Elder began work at Preferred's Lawrenceville, Illinois facility
in February 1993. She interviewed with Darlene Wright and Sondra Sievers.
Religion was
not discussed during her interviews. During her orientation,
Ms. Elder reviewed the "Transfiguration of Preferred," which she thought
was "a joke" and
that "it was kind of silly" to hand it out. Def. Facts PP 306,
309-313. She thought handing out the Transfiguration was unnecessary and
inappropriate. Pl.
Add. [*49] Facts P 1127.
Ms. Elder's initial performance evaluation was good. When Ms.
Sievers was promoted to the Vincennes facility, Ann Parker offered Ms.
Elder the branch
manager position at Lawrenceville, but Ms. Elder declined. Def.
Facts P 317 and Pl. Resp. She gave several reasons for declining, one of
which was,
according to Preferred, "having to allow devotions in the office
and to attend meetings at the corporate office that would be opened with
prayer." Pl. Add.
Facts P 1128 and Def. Reply.
In describing the branch manager position, Ann Parker told Ms.
Elder that, as a branch manager, she would have to start having devotions
in the
Lawrenceville office. Pl. Add. Facts P 1129. She also told Ms.
Elder that, as a branch manager, when she visited the corporate office
there would be
devotions and prayer before meetings. Pl. Add. Facts P 1130.
Ms. Elder did not want to attend devotions because she thought it was inappropriate.
It was
no secret in the Lawrenceville office that Sondra Sievers and
Suzanne Elder went to the same Catholic church. Pl. Add. Facts PP 1132,
1133.
Terry Jennings ultimately became the branch manager of the Lawrenceville
office in July 1993, at which time devotions [*50] at Lawrenceville
began. Ms.
Jennings prepared Ms. Elder's six-month performance evaluation,
which was positive. Def. Facts PP 318, 319. Pl. Add. Facts P 1131.
After Ms. Jennings took over the branch operations, conflict developed
between her and Ms. Elder. Ms. Jennings testified that she perceived Ms.
Elder as
being rude and disorganized. Ms. Elder thought that Ms. Jennings
criticized her for everything from how she sighed, to when she went to
lunch, to how she
acted on the telephone, to how she interacted with the field
nurses. Ms. Elder believes Ms. Jennings treated her in this manner because
Ms. Elder is
Catholic, although she never heard Ms. Jennings say anything
negative about Catholics. Def. Facts PP 322-326.
Ms. Elder testified that Darlene Wright was called in "to mediate
the problems [between Ms. Elder and Ms. Jennings] and make me change."
Ms. Wright
told Ms. Elder at these meetings to read the Bible and once attempted
to conduct a laying of hands on her. Def. Facts and Pl. Resp. P 328. Ms.
Wright
prayed at the start of each meeting. Def. Facts and Pl. Resp.
PP 329. Ms. Wright discussed with Ms. Elder how to approach Ms. Jennings
with a more open
communication style and [*51] to be aware of how
her body language was perceived. Ms. Wright also gave Ms. Elder some books
to read on personality
profiles and told Ms. Elder to read the Bible. Ms. Wright counseled
her to show a constant verbal expression of her faith. Def. Facts and Pl.
Resp. PP
330-332.
Sometime after this meeting, Ms. Wright met with Ms. Elder and
Ms. Jennings in an effort to resolve the conflict between them. Def. Facts
P 333. Ms. Elder
testified that "supposedly the conflict was all on my fault,
on my side, that I was the reason for the conflict and I was the one who
had to change." Pl.
Resp. to Def. Facts P 333. Ms. Jennings presented Ms. Elder with
a list of goals to meet by February 17, 1994. The goals included: (1) improving
communications; (2) meeting with Ms. Jennings daily to discuss
agendas; (3) following office protocols established by the branch manager;
(4) limiting
telephone calls to the corporate office to a designated time
during the day; (5) focusing on time management; (6) communicating events
to the
appropriate staff person; and (7) displaying courtesy to other
staff members. Ms. Elder thought these goals were unnecessary and were
based on isolated
incidents rather than patterns [*52] of behavior.
Some of the goals she considered completely groundless. Def. Facts P 335-337.
Ms. Elder met several times with Ms. Wright one-on-one. Ms. Wright
started each with prayer. During one of these meetings, Ms. Wright asked
Ms. Elder if
she had a Bible and said that Ms. Elder should read the Bible
because it would help her become a better person. Pl. Add. Facts PP 1144-1145.
When Ms.
Wright told Ms. Elder that she needed to show constant verbal
expression of her faith, Ms. Elder felt that it was none of Ms. Wright's
business how she
presented herself in her religious beliefs. At one of these meetings
Ms. Wright said that laying on of hands would make Ms. Elder feel better.
Ms. Elder
was upset by the suggestion to do laying on of hands because
it is contrary to her beliefs. Pl. Add. Facts PP 1146-1147.
Ms. Elder transferred from Lawrenceville to Vincennes prior to
February 14, 1994: Def. Facts P 338. In Vincennes, Ms. Elder was primarily
a field nurse, but
performed quality assurance work as well. She did not experience
harassment or religious discrimination in Vincennes while Sondra Sievers
was her
branch manager. Def. Facts PP 339, 340.
On July 22, 1994, Ms. Elder became [*53] Preferred's
liaison to the Lodge of the Wabash, which is an assisted living community
located in Vincennes. In
this role, Ms. Elder was responsible for working with the management
at the Lodge and overseeing Preferred's nurses and aides who would make
visits to
Preferred clients housed at the Lodge. The Lodge was a major
referral source for Preferred. Def. Facts PP 341, 342, 343.
While at Vincennes, Ms. Elder attended mandatory quality assurance
(QA) nurses meetings that would be opened with prayer. Def. Facts PP 344;
Pl. Add.
Facts P 1132. During the prayer, Ms. Elder would "zone out [and]
do paperwork." Def. Facts. P 345. She did not complain about prayer at
meetings
because she believed she had had enough harassment in the Lawrenceville
office and did not want to bring any more scrutiny on herself. Pl. Add.
Facts P
1155. Ms. Elder also attended a mandatory values presentation
conducted by Jackie Steuerwald; she also signed the Values Statement. Def.
Facts P 346;
Pl. Add. Facts PP 1156, 1158. Ms. Elder objected to the value
that required "subordination of self-interest to company interest," because
her nursing
training had taught her that her interests may not always be
the same [*54] as the company's; she might be directed to carry
out an improper order.
Def. Facts P 347. She also objected to the part of the Mission
and Values Statement in which there were specific references to places
in the Bible and that
these Biblical definitions were the company's characterization
of what the value meant. Pl. Add. Facts P 1157. Ms. Elder testified that
she signed the
Mission and Values Statement because she wanted to keep her job.
Pl. Add. Facts P 1158. Ms. Elder attended an introduction to home care
meeting at the
corporate office at which passages of scripture were read. Def.
Facts P 348. In addition, she attended a Home Care 101 seminar at which
Biblical Scripture
was quoted throughout the seminar. A client care coordinator
at the Home Care 101 seminar told the audience that everyone in the company
had a faith in
Christ. Pl. Add. Facts PP 1159, 1160. Ms. Elder testified that
she thought the references to scripture were "unnecessary in a business
atmosphere." Def.
Facts P 349.
While she was working in the Vincennes office, Ms. Elder heard
during a nurses meeting that they should work hard because Jesus worked
hard. Pl. Add.
Facts PP 1161. At Vincennes, Ms. Elder did not [*55]
attend devotions and was not disciplined for not attending. She was asked,
however, why she
wasn't attending. Def. Facts P 350; Pl. Add. Facts P 1162. Ms.
Elder received unwanted religious materials in her mailbox; she threw the
materials away.
Def. Facts P 351; Pl. Add. Facts P 1163.
When Sue Klein was working in QA, she often brought up religion
to Ms. Elder. She told Ms. Elder that Ms. Elder's religion does not believe
that one can
pray for people after they die. She told Ms. Elder that Mary
(the Mother of Jesus) is just a person in the Bible. And she talked about
being saved. Ms. Elder
told Ms. Klein that she did not want to hear about that. Pl.
Add. Facts PP 1164-1168.
During the time she worked in the Vincennes office, Ms. Elder
was given a copy of the document, "Characteristics of Broken People Prepared
for Revival."
Various items on the bulletin board in the Vincennes office had
religious references on them. Pl. Add. Facts, PP 1171, 1172.
b. Ms. Elder Resigns from Employment.
In October 1995, around the time at which Preferred conducted
its "Your Opinion Counts" survey in the Vincennes office, Ms. Elder applied
for a position as
the director of home health at Crawford [*56] Memorial
Hospital in Illinois. After Ellen Blice and Sondra Sievers had been fired
in February and March
1996, Ms. Elder perceived a general unrest in the office, because
people were concerned for their jobs. On March 8, 1996, Ms. Elder received
her
performance evaluation from Karen Lemons, who was her supervisor
at that time. On this evaluation, Ms. Lemons noted that Ms. Elder had a
"good
working relationship" with Lodge of the Wabash. Ms. Elder received
a "3.3" rating; "5" was the highest possible. She was also scheduled for
a pay raise
effective April 3, 1996. Def. Facts PP 352; 354-357, 360.
Ms. Elder resigned her employment with Preferred on March 18,
1996. Before she resigned, she accepted the position at Crawford Memorial
Hospital, which
paid more than her position at Preferred. Prior to Ms. Elder's
resignation but after Ms. Blice's discharge, Sue Thiakodimitris ("Sue T.")
spoke with the
Lodge's director of nursing and administrator to see if there
were any concerns with PHHC or its staff, and in particular Ms. Blice.
Def. Facts PP 361. Ms.
Elder resigned because she did not feel welcome in the office
and because Preferred employee Sue Thiakodimitris had gone to the Lodge
to [*57] inquire
about herself and Ellen Blice and she believed that Ms. Thiakodimitris
was trying to dig up dirt on her. Def. Facts PP 361-364.
Ms. Elder believes that Preferred wanted to fire her because her
religious views did not compare favorably with those of Sue Klein, who
was the new
branch manager at Vincennes. Def. Facts P 366. Julie Guy, from
the Lodge of the Wabash, took Ms. Elder into a bathroom inside one of the
rooms on the
Lodge's premises, closed the door and told Ms. Elder that: "They
[Preferred] were looking for dirt on Ellen and on you." Ms. Guy asked Ms.
Elder if Suzanne
was next to be fired. Pl. Add. Facts, PP 1173, 1174. n6
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - -
- - - - - - - - -
n6 Preferred objects to the introduction of these statements because
they were made by Ms. Elder and are, therefore, hearsay. They are admissible,
however, not for the purpose of proving the statements are true
-- that Preferred was trying to dig up dirt on Ms. Elder -- but to explain
Ms. Elder's state of
mind: that is, why she quit her employment. Fed.R.Evid. 803(3).
See E.E.O.C. v. University of Chicago Hospitals, 276 F.3d 326, 332 (7th
Cir. 2002).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - -
- - - - - - - - - [*58]
5. Sherry Stute.
Sherry Stute applied for a Nursing Supervisor position at Preferred
in July 1995. Shortly before, she had converted to Catholicism. Ms. Stute
was attracted
by Preferred's logo, which she recognized as a Christian symbol.
Ms. Stute spent much time in prayer before submitting her application and
resume. The
position for which Ms. Stute applied involved assisting in opening
a satellite office in Evansville which would become an independent branch
once it became
sufficiently stable and financially sound. Def. Facts PP 370,
372-375.
Ms. Stute initially interviewed with Darlene Wright. She told
Ms. Wright that she was active in her church and wanted to become more
so, that she hoped
to read the Bible all the way through within the next year, that
one of her strengths was her faith in God, and that she thought God had
brought her to
Preferred for the interview. Ms. Wright explained the history
of Preferred to Ms. Stute, informed her that it was a Christian organization,
and shared with
her some of her own strong commitment to religion. Def. Facts
PP 376-378. She also told Ms. Stute that she and Jackie Steuerwald had
prayed in a closet
together at some point because [*59] they didn't
know how the other people in the office would receive the praying. Pl.
Add. Facts PP 1183-1185.
After meeting with Ms. Wright, Ms. Stute met with Sondra Sievers,
then branch manager of the Vincennes office, and Cherie Deem, who was the
nursing
supervisor for the Vincennes branch. Ms. Stute also interviewed
with Chaplain Chuck Harrington. Darlene Wright phoned Ms. Stute and offered
her the
position of Nursing Supervisor and Ms. Stute accepted. This job
represented Ms. Stute's first experience with Medicare, Medicaid, home
health care, and all
of the associated administrative functions, such as regulatory
compliance and paperwork. Def. Facts P 380-382; Pl. Add. Facts P 1188.
Sondra Sievers served as Ms. Stute's supervisor until Ms. Sievers
was removed as branch manager in November 1995. When Terry Jennings succeeded
Ann Parker as the area administrator in December 1995, Ms. Jennings
served as Ms. Stute's supervisor. Meanwhile, Sue Klein was serving as interim
branch manager and prepared Ms. Stute's three month evaluation.
On it, Ms. Klein noted that Ms. Stute needed to "increase her knowledge
of home care
and this company" and learn the Choice program. Ms. Stute acknowledged
[*60] that she needed to expand her understanding of Medicare, Medicaid
and
the accompanying regulations. Ms. Stute identified as her own
developmental goals: (1) increase her knowledge; (2) increase the patient
base for
Evansville; (3) work toward establishing Evansville as an independent
branch; and (4) continue to grow in her faith. Def. Facts PP 383-387. Before
Ms.
Stute wrote these goals on the November 7, 1995, evaluation,
Ms. Klein told her that her goals needed to be reflective of Sue Klein's
suggestions for
improvement.
Any time Ms. Stute interacted with Ms. Klein, Ms. Klein, always
made some reference to God and faith. She asked Ms. Stute whether she wanted
to be her
prayer partner. Ms. Stute was uncomfortable when Ms. Klein asked
her whether she prayed and read the Bible regarding a drop in the Preferred's
Evansville clientele. When Sondra Sievers had to go to the hospital
because of her blood pressure, Ms. Klein said to Ms. Stute: "if Sondra
had been right
with God she wouldn't be having physical problems." In response,
Ms. Stute asked her whether that meant that all of Preferred's patients
were not right
with God. Ms. Klein replied: Well, that's why we are there in
their lives, [*61] so that we can bring them to the Lord before
they die." Pl. Add. Facts PP
1196-1201; Def. Facts P 391, 392.
During a meeting that Ms. Stute attended, Jackie Steuerwald announced
that Nellie Foster was being hired as an independent contractor to assist
in their
spiritual growth. Ms. Foster conducted seminars and in-service
presentations. "Leader in the Making" presentations, which came under Ms.
Foster's
auspices, always began with prayer. Ms. Stute attended Ms. Foster's
presentation on "Big People see the Big Picture," a religious presentation.
Although
Ms. Stute did not find the content offensive, she found it offensive
that such presentations were mandatory in the work place. One of the categories
on the
self-assessment forms used during the in-service presentations
was on studying the Bible. Pl. Add. Facts PP 1205, 1206, 1208-1212; Def.
Facts P 390.
Ms. Stute received her orientation in August 1995. That day she
had lunch with Jackie Steuerwald and Sondra Sievers, during which Ms. Steuerwald
stated
that Preferred was operated based on the fundamentals of her
religious beliefs. Although Ms. Stute expressed no conflict with Preferred's
mission
statement and values, she testified [*62] that she
thought it "unreasonable to expect us to base our day-to-day activities
on the Bible verses that
[Preferred management] chose for us." Ms. Stute signed the values
statement because she felt if she did not do so she would be terminated.
Def. Facts PP
393-395, (and Pl. Resp.), 396-397.
Ms. Stute attended a values presentation presented by Jackie Steuerwald
on October 24, 1995. During this presentation, Ms. Steuerwald spoke of
Preferred's history, showed a video tape, shared her own religious
testimony and asked those in attendance to share how they became Christians.
When
it was her turn to speak, Ms. Stute told the group that she had
"joined the Catholic Church just prior to coming to Preferred and that
[she] was still trying
to learn and develop [her] faith." After various individuals
expressed their faith, Ms. Steuerwald would say "Amen" or "Praise God."
When Ms. Stute said
that she had converted to Catholicism, Ms. Steuerwald had a "devastated"
look on her face, her eyes got large, and she looked as if she had been
knocked over. After this meeting, Ms. Stute believed that Ms.
Steuerwald's demeanor toward her changed, which she attributed to having
said she was
Catholic. [*63] Ms. Steuerwald did not interact with
her as much; when she did, the interaction lacked the "warm fuzzies" from
before. Instead of a
"smile" toward her, Ms. Stute perceived in Ms. Steuerwald's eyes
a "blank stare." Def. Facts PP 397-400, 402, 403; Pl. Add. Facts PP 1256,
1257.
During Ms. Stute's three-day orientation, Ms. Steuerwald stated
that all Preferred employees are working and dedicated, resembling Christ.
During the
orientation or a management meeting, Ms. Steuerwald presented
the company's organizational "wheel" with Jesus at the center and employees'
names
on the spokes radiating outward from it. Ms. Steuerwald told
those in attendance how Jesus was the foundation of Preferred and that
with the employees
providing the care, Preferred would grow and benefit. During
the comprehensive orientation that Sherry Stute attended, Ms. Steuerwald
said that it was a
vision of hers that the conference room at Preferred would some
day be a church and that people could come there and pray. Pl. Add. Facts
PP 1244-1246.
On one occasion when Ms. Stute decided not attend devotions, Ms.
Jennings told her she really ought to appreciate the devotions more because
Chaplain
Chuck Harrington did [*64] a lot of work preparing
for them. Ms. Stute took this to mean that she was expected to go to devotions.
Ms. Jennings told Ms.
Stute that it was mandatory for her and her staff to attend an
in-service program on fasting that Chaplain Chuck Harrington was presenting.
Pl. Add. Facts
P 1247 (and Def Resp.), 1248, 1249.
On February 21, 1996, Preferred hired Wanda Wallace to be the
acting branch manager of the Evansville branch. Ms. Wallace had been the
area
administrator over PMCI, the southern non-Medicare Preferred
company, before she had retired in the Fall of 1993. Among her duties,
Ms. Wallace was to
train Ms. Stute to become the branch manager. Ms. Stute was informed
that Ms. Wallace would be training her for that job, although she was also
told that
she "probably would like working under Wanda so much that [she]
would want to stay on as the RN supervisor and . . . do the supervisory
visits and the
home health aide supervision and let Wanda do management." Preferred
asserts that Ms. Stute was not qualified for the branch manager's position,
because she did not have any previous home health experience,
and one year of experience was desirable for the position. Def. Facts PP
404 [*65] (and
Pl. Resp.), 405. The EEOC points out that Darlene Wright knew
that Ms. Stute had no prior home health care when she recommended her for
the job. And
so did branch manager Sondra Sievers and nursing supervisor Cherie
Deem. When Ms. Stute interviewed with Ms. Wright, she told Ms. Wright about
her
financial experience; Ms. Wright said that "sounds perfect for
what the job we want done in Evansville, because we want someone who is
working with
finances and understands the bottom line." Pl. Ad. Facts 1181,
1188, 1191. Ms. Wallace understood her assignment as training Ms. Stute
in Medicare and
Medicaid regulations, branch operations, coordinating patient
care, quality assurance matters, staffing and issues concerning the professional
advisory
committee. Def. Facts P 407.
Terry Jennings told Ms. Stute that Ms. Wallace was going to train
her and that she would be working under Wanda's supervision. She also told
Ms. Stute
that when the time came, both she and Ms. Wallace could apply
for the branch manager position. Def. Facts P 408 and Pl. Resp. Ms. Stute
was
disappointed when Ms. Wallace was brought in as her trainer,
because Ms. Stute thought she would automatically become the branch
[*66] manager
over Evansville once it became an independent branch. Def. Facts
P 409. Ms. Stute had been told when she was hired that Preferred was hiring
her as RN
Supervisor to get the Evansville office operational, but that
once it became financially stable enough, the RN supervisor would move
into the branch
manager position and a new RN Supervisor would be hired. Pl.
Add. Facts P 1221. Ms. Stute was never given the opportunity to apply for
the branch
manager position at Evansville. Pl. Add. Facts P 1223.
Terry Jennings told Ms. Stute that Wanda Wallace and Jackie Steuerwald
were very close. She told Ms. Stute that Ms. Steuerwald hired Wanda Wallace
-- it
was her company and she could hire whom she wanted; the Bible
says, "obey and support your superiors." That was what Ms. Jennings was
doing and so
should Ms. Stute. Pl. Add. Facts PP 1227, 1228.
In April 1996, Ms. Jennings put together a self-improvement plan
for Ms. Stute which included daily Bible readings, daily prayer and a checklist
indicating
how well Ms. Stute was meeting the company's values criteria.
Wanda Wallace monitored the plan by making an appropriate notation each
time Ms. Stute
met a goal. Every meeting between Ms. [*67] Wallace
and Ms. Stute started with prayer. After April 1996, Ms. Wallace often
asked Ms. Stute whether she
had read her daily scripture. Regardless of Ms. Stute's answer,
Ms. Wallace went to the phone. She would come back after her phone call
and say: "Well,
Terry says that you need to be doing this, because if you want
to move forward . . ." After Pl. Add. Facts PP 1272-1277. Ms. Wallace also
brought in a Bible,
laid it on Ms. Stute's desk, and told her that they would be
studying this Bible. Ms. Stute responded by saying that she already had
a Bible. Def. Facts PP
411-417 (and Pl. Resp.), 418.
On more than one occasion, Ms. Wallace referred to Ms. Stute as
a "wounded spirit" and stated that the Bible says wounded spirits need
healing and
nurturing. Indeed, Ms. Wallace told Jackie Steuerwald that she
thought Ms. Stute was a wounded spirit. She told Ms. Stute that Ms. Steuerwald
agreed
with that assessment. Def. Facts P 425 (and Pl. Resp.); Pl. Add.
Facts PP 1293, 1295. One of the topics of the improvement plan developed
by Ms. Jennings
was how to heal a wounded spirit. Pl. Add. Facts P 1298. Ms.
Wallace told Ms. Stute that she needed to study the Bible and pray more
to overcome being
[*68] a wounded spirit. She also asked Ms. Stute if she
had confessed her sins. Ms. Stute was insulted by Ms. Wallace classifying
her as a wounded spirit.
Pl. Add. Facts P 1300.
One day when Ms. Stute had a headache, Ms. Wallace and an Evansville
secretary said they would pray for her headache to go away. Ms. Stute
acquiesced, whereupon Ms. Wallace and the secretary unexpectedly
put their hands on her and prayed for healing. The touching made Ms. Stute
feel very
uncomfortable and she told Ms. Wallace that she didn't like people
putting their hands on her. Def. Facts P 425 (and Pl. Resp.), 426-430 (and
Pl. Resp.). Ms.
Wallace responded that she was a firm believer in laying on of
hands. Pl. Add. Facts P 1288. Later, Terry Jennings talked to Ms. Stute
about the hands on
incident and told her that she should have been thankful that
Ms. Wallace and the secretary came in to heal her. Pl. Add. Facts P 1289.
Ms. Stute
reiterated that she did not like people putting their hands on
her. Ms. Jennings responded by becoming angry and telling Ms. Stute that
she had caused
Ms. Jennings many headaches since she had been there; she appreciated
when people around her cared about her; and Sherry Stute should [*69]
be
lucky that they cared. Pl. Add. Facts P 1291.
Ms. Wallace also told Ms. Stute that Ms. Stute was a proud person.
Pl. Add. Facts P 1233. When intakes for Evansville dropped, Ms. Wallace
told Ms. Stute
that they should pray for more new patients. Pl. Add. Facts P
1234. Ms. Wallace brought religious tapes into the office and asked Ms.
Stute to listen to
them. Pl. Add. Facts P 1236.
After she became area administrator, Ms. Jennings told Ms. Stute
that being a Christian company, Preferred didn't do anything without including
a prayer.
She told Ms. Stute that she should go to church with Wanda Wallace.
She told Ms. Stute that Jackie Steuerwald was looking at her managers spiritually.
Pl.
Add. Facts PP 1260-1264. Ms. Stute had not, as directed, signed
up to become a prayer partner. Ms. Jennings came into Ms. Stute's office
with the prayer
partner form and said "you can't even sign a piece of paper."
Several times during the last few weeks of Ms. Stute's employment, Ms.
Jennings told her
that she was causing Ms. Jennings undue stress and that dealing
with Sherry just took all of her energy. One day when Sherry Stute was
talking to Terry
Jennings on the phone, Terry Jennings told Sherry [*70]
Stute that Sherry Stute had upset her so, she [Terry] just thought about
running in a ditch and
killing herself, that having to deal with Sherry Stute was the
most stressful thing she had ever done. Pl. Add. Facts PP 1268-1271.
After the Values Presentation, Ms. Jennings asked Ms. Stute if
Catholics prayed before meals, to which Ms. Stute said yes. In another
conversation, Ms.
Jennings told Ms. Stute that "Catholics don't believe in the
Holy Spirit." Def. Facts P 433, 434 (and Pl. Resp.), 436 (and Pl. Resp.).
Some time after the Values Presentation, Terry Jennings told Ms.
Stute that Catholics were not considered Christians, adding that Ms. Steuerwald
had told
her that Catholics didn't believe in the Holy Spirit. Ms. Stute
asked in response: "So when a Catholic makes the sign of the cross, what
do you think that
is?" Ms. Jennings responded that she thought Catholics were making
fun of God. During the same conversation, Ms. Jennings said that Catholics
have idols
other than God. Ms. Jennings also said that Jackie Steuerwald
told her that Catholics keep God in a box in the front of the church. She
also told Ms. Stute
that Jackie had told her that Catholics were pagans. Pl. Add.
Facts [*71] PP 1305-1312. During another conversation, Ms.
Jennings told Ms. Stute that she
ought to change her religion. Pl. Add. Facts P 1313.
During a managers meeting at the corporate office, those in attendance
were told that Bibles were available for them to purchase; they were told
Ms.
Steuerwald felt that everybody in the company needed a Bible
so she encouraged the branch managers or supervisors to purchase them for
their staff.
Someone referred to the Bibles as being the corporate word. Pl.
Add. Facts PP 1317, 1318.
Preferred asserts that, as Ms. Stute's supervisor, Ms. Jennings
was not always pleased with Ms. Stute's work. Def. Facts PP 443. Ms. Stute.
testified,
unrebutted, that she was not criticized at Preferred until after
she announced at the Values Presentation in October 1995 that she was a
Catholic. After
that, Ms. Jennings told Ms. Stute to come in, go to her office,
keep her mouth shut, and if she had any dealings with anybody in the office,
whether with
the secretary, the nurses, the home health aides, she was to
go to Wanda Wallace and that Ms. Wallace would deal with everybody. Pl.
Resp. To Def.
Facts P 443; Pl. Add. Facts P 1265, 1320.
During the last three weeks of [*72] her employment,
Ms. Jennings told Ms. Stute that she would not have hired Ms. Stute had
she been given the
original choice. On May 8, 1996, Ms. Jennings met with Ms. Stute
to address Ms. Stute's handling of some advertising matters, her failure
to adhere to
certain office procedures, some notes from a patient chart that
had come up missing, the manner in which an 800 number was set up without
authorization from the corporate office, and Ms. Stute's organizational
skills. The next day, Ms. Stute submitted her resignation letter to Ms.
Jennings. Def.
Facts PP 444-448.
6. Diana DeWester
Diana DeWester began work for Preferred in 1991. Although she
was hired as Director of Nursing in the Danville branch, she never worked
as a Director of
Nursing. Instead, she assisted with the Lafayette office for
her first four to six weeks as an employee, and then became the branch
manager and nursing
supervisor for the newly opened Indianapolis office. Def. Facts
PP 459, 463, 464,
Ms. DeWester grew up Presbyterian, but converted to Catholicism
in 1956 when she was 18 years old. She considers herself to be a Christian.
She
perceived Ms. Steuerwald's religious views as "far-right fundamentalist"
[*73] and relying on a literal interpretation of the Bible. Ms. DeWester
believes
that the teachings of the Catholic Church are consistent with
a literal interpretation of the Bible. Def. Facts PP 455, 456. 457, 458
(and Pl. Resp.),
Approximately six weeks into Ms. DeWester's employment, Diane
Christian, Preferred's Northern Area Administrator, told her that Ms. Steuerwald
did not
think Ms. DeWester would fit in at Preferred because of Ms. DeWester's
"nonbeliefs." Def. Facts P 465. Ms. Christian told Ms. DeWester to be very,
very
careful, a statement that Ms. DeWester took as a warning. Pl.
Add. Facts PP 1342, 1343. Shortly after this conversation, Ms. DeWester
said at a luncheon
Ms. Steuerwald attended that Christians did not have a corner
on the "God market," and that just as there is "more than one way to get
to Beech Grove,
there is more than one way to get to God." Def. Facts PP 465,
466. Ms. Steuerwald appeared to be very angry after Ms. DeWester made this
comment. Pl.
Add. Facts P 1344. Ms. Steuerwald observed that Ms. DeWester's
comment "was new age thinking and it was not allowed at Preferred Home
Health Care."
Def. Facts P 468; Pl. Add. Facts P 1345.
Ms. DeWester was the first [*74] office employee hired
for the Indianapolis office. Becky Selm, who had attended a Catholic church
before Jackie
Steuerwald pointed her in another spiritual direction, was hired
as office manager. Def. Facts PP 470, 471; Pl. Add. Facts P 1498.
Some employees complained of Ms. DeWester's leadership of the
office. Ms. DeWester believed that because of her attitude toward the religious
issues at
Preferred, some employees didn't like her. Def. Facts P 473 and
Pl. Resp. Ms. DeWester believed that her approach to devotions created
some tension in
the office. Devotions were held every Thursday morning. Ms. DeWester
did not want everybody to go at the same time; instead, she proposed that
half
the staff wold attend one week and half the next. Several employees
objected to her proposal, believing that the office should be closed during
devotion
time. Def. Facts PP 474 and Pl. Resp., 476. Ms. Steuerwald and
Ms. Christian directed Ms. DeWester to go to devotions to show support
for Preferred's
values. Def. Facts P 475; Pl. Add. Facts P 1361.
Ms. DeWester does not believe that human beings receive religious
visions from God or that evil spirits can be present in the work place.
Pl. Add. Facts
[*75] PP 1339, 1340. Her problem with Ms. Steuerwald was
that she demanded that Ms. DeWester abide by her religious beliefs and
that she direct her
subordinates to abide by them as well. Pl. Add. Facts P 1347.
Ms. Christian told Ms. DeWester that, as far as religious views were concerned,
it was Jackie
Steuerwald's way or the highway. Pl. Add. Facts P 1348. Ms. DeWester
was expected to present religious memos and posters in meetings. She did
not
support hanging religious posters in the workplace and she complained
to Ms. Christian about the religious bulletins and posters in the work
place. Pl.
Add. Facts PP 1356-1358.
On two occasions, Ms. Steuerwald prayed over the phone regarding
Ms. DeWester's brother, who was having surgery, and once for wisdom for
an
upcoming business meeting. Def. Facts P 478 and Pl. Resp. Ms.
DeWester was uncomfortable with Ms. Steuerwald praying over the phone.
Pl. Add. Facts P
1367.
On more than one occasion, Ms. Steuerwald told Ms. DeWester that
she was "walking in the flesh." Ms. DeWester took exception to the Values
Definitions
attached to Preferred's Values Statement, because she did not
think the Bible verses belonged in the workplace. Def. Facts PP 482,
[*76] 485, 486.
Ms. DeWester was directed to support Ms. Steuerwald's religious
beliefs on several occasions. She was directed to go to devotions. She
was encouraged
to fast. She was instructed, when she hired employees, to make
sure that they were Christians. In a letter dated August 18, 1995, Ms.
Steuerwald told
Ms. DeWester to be present at an in-service values presentation
to make the introduction and to show her support. Ms. DeWester felt that
her
employment was threatened when she did not attend a religious
function during work hours, even though she acknowledged that she was not
disciplined
for not attending. Pl. Add. Facts PP 1359-1363, 1364 (and Def.
Reply).
At two meetings Ms. DeWester attended, Darlene Wright and Jackie
Steuerwald talked about speaking in tongues. Towards the end of Ms. DeWester's
employment, Ms. Steuerwald discussed, in Ms. DeWester's presence,
a vision she had of the Antichrist. "Walking in the flesh" was a common
statement at
Preferred. Ms. DeWester heard repeated discussions about the
spirit and spirituality. Pl. Add. Facts PP 1365, 1366, 1371. On more than
one occasion, Ms.
DeWester heard Ms. Steuerwald say in a meeting that she was looking
at her managers [*77] and thought that some of them were not
where they
should be spiritually. On one such occasion, Ms. Steuerwald gave
Ms. DeWester books on religious topics. She then followed up by asking
Ms. DeWester
about the books. Pl. Add. Facts PP 1377-1381.
Ms. DeWester tried to appear busy in her office in order to avoid
seeing the Holy Spirit videos presented at the Indianapolis branch. Occasionally,
Pastor
Johnny Garrison would come to her office to ask her if she was
attending the Holy Spirit videos. Pl. Add. Facts PP 1386, 1387. As a branch
manager, Ms.
DeWester was directed to tell applicants during the interview
that Preferred is a Christian organization and to direct all applicants
to talk with Pastor
Johnny Garrison after she interviewed them. Pl. Add. Facts PP
1405-1406.
Ms. DeWester attended a branch manager meeting on June 21, 1995,
at which Jackie Steuerwald discussed the Values Statement with the branch
managers. Ms. Steuerwald told the attendees that each employee
would be asked to sign a statement at the beginning of the year agreeing
to uphold
Preferred's values -- among them, "Trust in God." Ms. Steuerwald
added that employees also would be asked to sign a statement at the end
[*78] of the
year agreeing that they had supported the values during that
year. The values, Ms. Steuerwald said, were to be used in disciplinary
actions. Ms.
Steuerwald told the attendees that the values are the heart of
Preferred and are not negotiable. Ms. DeWester was told to prepare a list
of employees
who refused to sign the Values Statement and send that list to
Ms. Steuerwald. Ms. DeWester was also told to prepare a list of all employees
who would
like to discuss the values personally with Ms. Steuerwald and
send that list to the corporate office. Ms. DeWester was offended by having
Bible verses in
the Values Statement, notwithstanding their consistency with
her own religious beliefs. In a meeting that Ms. DeWester attended, Ms.
Steuerwald
explained that Jesus was the center of all of Preferred's operations
and that all of the employees were spokes on the wheel. All employees were
required
to attend a Values Presentation. Ms. DeWester signed the Values
Statement because she wanted to keep her job. Pl. Add. Facts PP 1388-1401.
Ms. DeWester reacted negatively to Ms. Steuerwald's writing called
the "Transfiguration of Preferred" because, she opined, she did not believe
that "God's
real [*79] anxious to make Jackie Steuerwald a rich
woman." Def. Facts P 489 and Pl. Resp. Ms. DeWester testified that, every
time she had an extended
conversation with Jackie Steuerwald (except for the last), Ms.
Steuerwald would ask: "Have you been saved?" or "Have you found Jesus?"
or words to that
effect. On each occasion, Ms. DeWester would respond: "Jackie,
I am a Christian." Def. Facts P 490 and Pl. Resp.
Ms. DeWester once said in a meeting which Ms. Steuerwald attended
that Preferred was a business, not a church. Diane Christian phoned Ms.
DeWester
the next day and told her that she was in serious trouble with
Ms. Steuerwald over the remark and that Ms. DeWester had to understand
that Ms.
Steuerwald considered Preferred to be a mission. Ms. DeWester
testified that one did not disagree with Ms. Steuerwald about religion
for fear of losing
one's job, although she acknowledged that she knows of no person
who was ever fired because of a dispute with Ms. Steuerwald over religious
beliefs.
Def. Facts P 496; Pl. Add. Facts P 1409; Def. Facts P 498.
After an interview with an applicant, Ms. Steuerwald came to a
branch manager meeting and announced that she may have her first lawsuit.
She said
[*80] that the applicant was from the Southwest and that
the applicant was Unitarian and wouldn't fit in. Pl. Add. Facts PP 1410,
1411.
On October 7, 1992, Diana Christian reviewed Ms. DeWester's work
performance. In the "development" box on the evaluation form, Ms. Christian
noted:
"sometimes can be reactionary"; "can be abrupt when under pressure";
"but also needs to work on handling frustration." Def. Facts PP 499, 500
(and Pl.
Resp.). On that evaluation, on a scale of I to IV, with IV being
the highest, Ms. DeWester received a "III" in leadership, a "III" in planning
and organizing, a
"III" in decision making, a "III" in delegation and control,
a "III" in achieving results, a "II" in cost control, a "III" in organizational
knowledge, a "IV" in
training/development, between "II" and "III" in organizational
cooperativeness, a "IV" in initiative, a "III" in resourcefulness/creativity,
a "IV" in
integrity/honesty, a "III" in communications, a "III" in interpersonal
relations, and a "II" in corporate philosophy. Pl. Add. Facts P 1414.
Her overall rating on the October 22 evaluation was a "III." Pl.
Add. Facts P 1415. In addition, in the handwritten section listing "Areas
of Concern," the
[*81] following comments are written: "None"; "I think
she was under a lot of stress up until a QA nurse was hired"; and "I think
she was afraid she was
not doing a good job due to the work load. She has always done
a great job, even though there was lots to do." Pl. Add. Facts P 1417.
Her next evaluation was on September 22, 1993. Ms. Christian wrote
that Ms. DeWester needed to increase her communication with her staff,
be more
approachable, and to work on ways to deal with anger. Def. Facts
P 501, 502. On a scale of I to IV, with IV being the highest, she received
a "III" in
leadership, a "III" in planning and organization, a "III" in
decision making, a "III" in delegation and control, a "III" in achieving
results, between a "I" and a
"II" in cost control, a "IV" in organizational knowledge, a "III"
in training/development, a "III" in organizational cooperativeness, a "IV"
in initiative, a "III"
in resourcefulness/creativity, a "IV" in integrity/honesty, a
"III" in communications, a "II" in interpersonal relations, a "III" in
corporate philosophy. Her
overall rating was a "III." Pl. Add. Facts P 1418, 1419. In one
of her comments in the narrative section Ms. Christian wrote of Ms. DeWester:
[*82]
"Overall, she is a wonderful employee & is a great asset
to the agency." Pl. Add. Facts P 1420.
On Ms. DeWester's evaluation of May 19, 1994, Ms. Christian identified
Ms. DeWester as a strong leader, but noted that her staff had changed its
perception of her since the preceding September. Her staff had
raised concerns about Ms. DeWester's honesty, integrity, fairness, respect
for authority
and ability to work with cohesiveness, among other things. Def.
Facts PP 503, 504, 505. n7 Notwithstanding these comments, on a scale of
1 to 3, with "1"
meaning "job performance does not meet requirements", "2" meaning
"job performance meets requirements" and "3" meaning "job performance exceeds
requirements," the only score that Ms. DeWester received below
a "2" on this evaluation was in the area of "implements company policy
and procedure
within an acceptable time frame." Under the comments for that
criterion, Ms. Christian wrote: "implements procedures, however, seems
to be
non-supportive at times." Pl. Add. Facts P 1421, 1422. When discussing
the comment in the May 19 evaluation, Ms. Christian told Ms. DeWester that
she
had to support Preferred's religious philosophy. Pl. Add. Facts
P 1423. [*83] Prior to receiving the May 19, 1994 evaluation,
numerous Indianapolis
employees told Ms. DeWester that she should be more supportive
of Preferred's religious philosophy and its Chaplain. Pl. Add. Facts P
1424.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - -
- - - - - - - - -
n7 The EEOC objected to the introduction of the employee comments
as hearsay. They are not admissible for the truth of their assertions.
But to the
extent that Preferred relied on the comments to form an opinion
as to Ms. DeWester's work performance, they are admissible. Fed.R.Evid.
803(3). They
also may be admissible as a business record, subject to additional
proof. Fed.R.Evid. 803(6).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - -
- - - - - - - - -
After the May 19 evaluation, Ms. Christian established a set of
60-day goals as follows: (1) "do not let any unclean thing come out of
your mouth"; (2) do
nothing out of favoritism; (3) be a good role model; (4) "openly
support Chaplain and Preferred's philosophy"; and (5) develop positive
relationships with
office and field staff. Def. Facts P 506 and Pl. Resp., 507 and
Pl. Resp. Ms. Christian also admonished Ms. DeWester [*84]
that if significant improvement
was not made in these areas, especially in the areas of interpersonal
relationships, Ms. DeWester could face additional disciplinary action up
to and
including discharge. Def. Facts P 508. Ms. DeWester believed
that the employees she had difficulties with were those who supported Ms.
Steuerwald's
religious beliefs. Pl. Add. Facts P 1427. Diane Christian's instruction
for goal number three was to support Preferred's religious philosophy.
Pl. Add. Facts P
1425. The instruction for goal number four was to go to devotions.
Pl. Ad. Facts P 1426.
In September 1994, Ms. Christian advised Ms. DeWester that she
had shown marked improvement in the areas relating to her goals, and noted
that she
had been working hard at improving her relationships within the
office. Def. Facts P 509. Ms. Christian observed, for example, that "during
the last few
months, I have noted her strong support for the Chaplain." Pl.
Add. Facts P 1428.
On May 10, 1995, Ms. DeWester received her last performance evaluation.
Ms. Christian noted that Ms. DeWester needed to continue working on
controlling her emotions. Def. Facts P 510-511. On this evaluation,
on a scale of 1 to 3, "1" signified [*85] "job performance
does not meet requirements,"
"2" meant "job performance meets requirements," and "3" meant
"job performance exceeds requirements." The only score that Ms. DeWester
received
below a "2" was for: "adheres to established branch budget and
advises appropriate supervisor of variations." Pl. Add. Facts P 1429. In
the narrative
section of this evaluation, Ms. Christian wrote: "Diana is an
excellent client advocate. She is a resource to other branches on IV's.
She is innovative &
creative. On her branch audit in April, her office was well organized,
up to date, excellent charting & well run with only very minor suggestions.
It has been
a challenging, growing & stretching year for the Indpls office
& I feel that Diana has grown as well." Pl. Add. Facts P 1430.
On February 19, 1996, Ms. Christian spoke with Ms. DeWester on
the telephone to set up a meeting between the two of them and Nellie Foster
to discuss
Ms. DeWester's performance and areas of potential improvement.
Ms. Christian informed Ms. DeWester about Ms. Foster's "Leader in the Making"
program
and that Ms. Foster had been brought on board to elevate the
performance of Preferred's managers. The three met on February 28, 1996.
During [*86]
the meeting, Ms. Christian and Ms. Foster discussed with Ms.
DeWester some personality issues that were affecting the operations and
morale of the
Indianapolis branch. Ms. Christian addressed the perceptions
that Ms. DeWester could be "bossy," controlling and intimidating. By the
end of the meeting,
however, Ms. Christian believed some progress had been made and
she and Ms. Foster, along with Ms. DeWester, developed a personal improvement
plan. Def Facts P 513-514, 516-519.
Ms. DeWester's personal improvement plan called for Ms. DeWester
to do the following: (1) pick two weaknesses to target over the next few
months; (2)
document two instances where she made progress in overcoming
those weaknesses within a given period of time frame; (3) complete some
exercises
concerning relational skills within a given time period; and
(4) implement values in areas of "atmosphere, attitude, behavior, conduct,
[and] discipline"
within a the time period. Def. Facts P 520.
Ms. DeWester attended two or three of Ms. Foster's training sessions
and found them to be religiously-oriented. Pl. Add. Facts P 1433. On March
1, 1996,
Ms. DeWester called Ms. Christian to inform her of her resignation.
Ms. DeWester [*87] stated that she was not willing to make
the changes discussed in
the meeting held two days earlier and could no longer put up
with the religion at Preferred. Def. Facts PP 523, 524. Ms. DeWester said
that, after years of
religiously-oriented materials and comments, attending Ms. Foster's
training sessions was the last straw. The day after Ms. DeWester turned
in her
resignation letter, Diane Christian told her: "Jackie has decided
she wants you to leave now." Pl. Add. Facts PP 1432, 1434.
7. Mary Mulder
Mary Mulder has attended Catholic churches with her husband and
children, but has never joined any church or become Catholic herself. She
considers
herself a Christian, which she understands to mean that she is
to be kind to people and honest with them. Def. Facts PP 590, 591. She
believes that being
"saved" means that you believe in God and are kind to other people,
you try to live an honest life and take care of your family. Pl. Add. Facts
P 1481. She
perceives her beliefs about being "saved" are different from
those of Jackie Steuerwald, Mike Pyatt, and Becky Selm. She thinks that,
for them, in order to
be saved one had to preach the gospel to other people and verbally
express [*88] one's feelings about religion. Ms. Steuerwald
told Ms. Mulder that to
become "saved," Mary Mulder needed to learn how to preach the
word of God to other people, to openly talk about it and to give away her
sinner ways of
life. Pl. Add. Facts P 1482-1484.
Ms. Mulder applied at Preferred's Indianapolis branch in October
1995 for a staffing coordinator position, which involved organizing the
schedules for all of
the home health aides in the branch. She interviewed with Becky
Selm, who would be her direct supervisor and who told Ms. Mulder during
the interview
that she "used to be a wild person that wasn't directed by spiritual
guidance and that Jackie Steuerwald had helped direct her in the right
direction, and
that her husband still wasn't walking in the right path but that
that was something that [she] had to work out, but [she] felt like a better
person." Def.
Facts P 592, 595; Pl. Add. Facts P 1486.
Ms. Mulder received her only performance evaluation on January
8, 1996. It was prepared by Ms. Selm, to whom she reported directly, and
it was a good
review. Def. Facts P 597; Pl. Add. Facts P 1489.
Before her first day of work, Ms. Mulder met Johnny Garrison,
the chaplain, who [*89] told her that Preferred offered a devotional
time, and that she was
welcome to attend. Ms. Mulder always understood that the devotions
were optional and she went as often as she could, because she enjoyed them.
Ms.
Mulder did not consider anything that occurred at the devotions
to be offensive. Def. Facts P 598-600. At times, when Ms. Mulder did not
attend devotions,
Becky Selm would ask "Why didn't you go into devotions today?"
She also observed: "Well, Jackie likes for everybody to attend." Pl. Add.
Facts PP
1487-1488.
During her orientation, Ms. Mulder reviewed the Transfiguration
of Preferred. Ms. Mulder's reaction to it was that, if Ms. Steuerwald wanted
to believe that,
so be it. Def. Facts PP 601, 602.
On one occasion, Ms. Mulder attended a meeting presented by Mike
Pyatt where he discussed the need for the people in the branch to work
together and
told those in attendance that because they "weren't reaching
out to each other and being like Godly children should be," that was why
their work was not
flowing; he also said that, if they centered their lives around
Jesus, everything would flow. Def. Facts P 604 and Pl. Resp. Mr. Pyatt
told the attendees: "If
you're not walking [*90] in the right path of God,
you need to look for a new job, this is not the place for you." Def. facts
P 605 and Pl. Resp. Becky Selm
told employees that Ms. Pyatt was coming on a particular day
at a particular time and that they were expected to be there. Pl. Add.
Facts P 1491. Mary
Mulder was shocked and offended by Mr. Pyatt's comments and actions
during the meeting in which he put up the organizational wheel chart with
"Jesus"
in the center. Pl. Add. Facts P 1492.
On one occasion Ms. Steuerwald brought a video, "The Holy Spirit,"
to the Indianapolis branch and employees were expected to attend. Pl. Add.
Facts P
1493. Ms. Selm told Ms. Mulder that she did not need to see the
tape because she was Catholic and would not understand it. Def. Facts P
606. Ms. Mulder
was not eager to see the movie, but she was shocked by Ms. Selm's
comment. At the time of the showing, Ms. Steuerwald talked about how she
found the
Holy Spirit and she wanted her "people" to experience it as well
because it would change their lives as it had hers. Ms. Mulder understood
the phrase "her
people" to mean the Preferred's employees. Pl. Add. Facts P 1495,
1496, 1497. Ms. Mulder went to the showing of the tape anyway. [*91]
Def. Facts P
607.
In November 1995, Ms. Selm told Ms. Mulder that she should not
tell Jackie Steuerwald that she was involved with the Catholic church because,
according
to Ms. Selm, Ms. Steuerwald did not like Catholics. Ms. Selm
observed that she herself used to be involved with the Catholic Church,
but that after she met
Jackie, Jackie was able to bring religion into her life the way
it should be. She said she was no longer involved with the Catholic Church,
and she was
heavily involved with another church Def. Facts P 609; Pl. Add.
Facts P 1498. Ms. Steuerwald denied having said that she does not like
Catholics and
denied having any bias against Catholics. Def. Facts PP 610,
612.
Ms. Steuerwald also told Ms. Mulder that she was very open about
her religion because she wanted others to have the glory of God in their
lives too. Ms.
Mulder responded by stating that she was very private about her
religion, that she liked to pray in private and did not like preaching
to other people. Ms.
Steuerwald responded that, because she was not charismatic about
religion, she could not be walking in the right path of God. She told Ms.
Mulder that
she could not be a saved Christian. Def. Facts [*92]
PP 613, 614; Pl. Add. Facts PP 1510, 1511.
In Ms. Mulder's presence, Becky Selm said, "Oh, you know those
Catholics, they're just heathens." Ms. Selm told Ms. Mulder that Diana
DeWester always
fought corporate on religious issues, and they did not like that.
Ms. Selm often told Ms. Mulder what a good Christian she was because she
participated in
church all the time, believed in Jesus Christ, and believed in
the Bible. Ms. Selm would ask Ms. Mulder daily for her list of problems,
and when Ms. Mulder
would show them to her, Ms. Selm would say "Let's pray about
them." Ms. Selm suggested that Ms. Mulder pray over her paperwork. After
Ms. Selm and
another employee took Ms. Mulder's paperwork into another room
and prayed over it, Ms. Selm told Ms. Mulder that the only reason the work
got done
was because they had prayed over it. When Ms. Mulder asked Ms.
Selm not to pray over her work, Ms. Selm told her that was a common practice
for them
and that they would continue to do it. Pl. Add. Facts P 1517-1523;
Def. Facts PP 616-618.
In January 1996, Ms. Mulder was attending comprehensive orientation
at the corporate office when Mike Pyatt asked her how she was enjoying
working
for Preferred. [*93] Ms. Mulder stated that she enjoyed
the work but was uncomfortable with all of the religious aspects, such
as praying over paper
work. Mr. Pyatt responded, "You're the hardest kind to break."
Def. Facts P 619-621.
At the comprehensive orientation attended by Ms. Mulder, each
speaker explained her role in the company and also shared some personal
information
about her spiritual journey. Although Ms. Mulder found none of
the individual presentations offensive, by the end of the day when every
speaker had
talked about a religious experience, Ms. Mulder thought that
it was a strange thing: by her own beliefs, a religious experience may
only come once in your
life or may never come at all, yet all of the speakers had one
or more religious experiences. Def. Facts P 623, 624 and Pl. Resp. After
listening to the
speakers' recitations, Ms. Mulder started to feel excluded; she
thought that, if she didn't believe the way they did, then she would be
considered different
or an outcast. She started to think that she shouldn't voice
her opinion on what she felt. Pl. Add. Facts P 1530, 1531.
Ms. Mulder also attended some of the presentations made by Nellie
Foster, which she found offensive not because [*94] the content
was contrary to her
religious beliefs but because she did not feel it was necessary
in the workplace. She was uncomfortable about having someone stand in front
of her telling
her that religion was necessary in the work place. She also took
offense on one occasion when she saw the Lordship Ladder posted for one
day in the
women's restroom. Def. Facts P 625 and Pl. Resp., 626.
Once, one of Ms. Mulder's co-workers made a reference to the Masonic
temple being a cult after Ms. Mulder mentioned that her father belonged
to the
Masons. Def. Facts P 627. Whereupon employees Jennifer Underwood,
Marilyn Pitzulo and Deanna Roberts said: "Didn't you know that the Masonic
Temple
is a cult?" They then began snickering and laughing and whispering
in each other's ears. One of them said that the Masonic Temple was a religious
cult.
Ms. Mulder was humiliated by this experience. She did not complain
about the comments concerning the Masonic Temple because of the steady
barrage of
religion, and it would not make any difference what she said;
unless she conformed to the group's religious views, she wouldn't be part
of the group. Pl.
Add. Facts PP 1534-1540.
After employee Rebecca Lambert left [*95] Preferred,
Becky Selm came into Mary Mulder's office and said: "I think we need to
pray in this office to get rid
of the evil demons." After Diana DeWester left, Becky Selm told
Mary Mulder that she and Jackie Steuerwald had prayed over Diana DeWester's
office to
get ride of the evil demons in her office when she left. Pl.
Add. Facts PP 1541, 1542. At some point in her employment, Ms. Mulder began
to get sick to her
stomach at the sight of religious memos. She became increasingly
uncomfortable seeing items with Bible verses on them in the reception area.
Pl. Add.
Facts PP 1544, 1545.
Jackie Steuerwald had meetings at least once a month at the Indianapolis
branch during Ms. Mulder's employment there. When Ms. Steuerwald talked
about religion, she would say: "If you can't speak up and talk
about God and talk his preachings and to walk his walk, you are not a good
Christian and
you need to get your life on the right path." At one of the meetings,
Ms. Steuerwald passed out the writing entitled "Characteristics of Broken
People
Prepared for Revival." After doing so, Ms. Steuerwald suggested:
"You might want to read down it and see which side of the page that you
fall on and
work toward [*96] getting to the proper side." Jackie
Steuerwald told the group that the proper side was the side of "broken
people." Pl. Add. Facts PP
1546-1550.
Ms. Mulder was frustrated at what she saw as inefficiencies or
inter-disciplinary problems in the workplace that affected how she was
able to perform her
job. Whenever she attempted to raise these concerns, however,
the response focused on religion rather than a practical solution to the
problem. Def.
Facts P 629, 630. The religious response increased the frustrations.
Pl. Add. Facts P 1552. Ms. Mulder perceived the morale in the Indianapolis
office to be
low. She believed that many employees were upset and scared that
they were going to lose their jobs if they didn't agree with everything
the corporate
office presented on religion. Pl. Add. facts P 1553.
After Diana DeWester resigned and Preferred was in search of her
successor in May 1996, Ms. Steuerwald held a meeting in the Indianapolis
office with
Ms. Mulder, Angie Weiskittel, Amy Butler, Cathy Robinson and
Carol Fuzzell to address the reasons why some of the departments were not
running
smoothly. Ms. Steuerwald opened the meeting by reading from her
Bible and said that the office was [*97] not running smoothly
because the employees
were not on the path of God and were all sinners. She told the
group: "You realize that you're all sinners, that you all play a part in
this, of being a sinner.
Each and every one of you is a sinner." Def. Facts P 633, 635.
Ms. Steuerwald asked Angie Weiskittel: "Do you believe that you're a sinner?"
She replied:
"Well, I guess I am." Pl. Add. Facts PP 1556, 1557. Ms. Steuerwald
looked at Amy Butler and asked: "Do you believe that you're a sinner?"
Ms. Butler hung
her head and started to cry and said: "Yes, I'm a sinner." Pl.
Add. Facts PP 1558, 1559. Ms. Steuerwald concluded: "That's right. Because
each and every
one of you is a sinner." Pl. Add. Facts P 1560. She added: "Until
you people release your vanity and quit becoming vain people, you're always
going to
come up with these problems." Pl. Add. Facts P 1561. n8
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - -
- - - - - - - - -
n8 Preferred disputes these statements of fact. It claims: "Other
people at the meeting, including those whom Ms. Mulder claims were asked
to repeat "I
am a sinner," testified that no such thing occurred. Deposition
of Kathy Robinson ("Robinson Dep.") at 163-65; Selm Dep. at 80-81." At
the cited testimony,
both Ms. Robinson and Ms. Selm testified that they did not remember
hearing these things, but not that "no such thing occurred." Def. Facts
P 636, n. 5. Ms.
Mulder, by contrast, testified that she did remember and that
the events happened. We ordinarily credit positive testimony over lack
of memory. In
addition, Preferred's objection misses the point. We resolve
disputed issues of fact, such as this one, in favor of the party opposing
summary judgment.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - -
- - - - - - - - - [*98]
Kathy Robinson asked Ms. Steuerwald "What do you mean by being
vain?" Ms. Steuerwald replied: "When you cause problems, when you think
that you're
the only important person in this office, that everybody else
is wrong, that means that you're a vain person." Ms. Robinson queried:
"How can you tell us
this is a vain act when we're just trying to make our jobs run
more smoothly?" Ms. Steuerwald got up from her seat, put her hands on the
table, leaned
forward to about six inches from Ms. Robinson's face and said:
"You are a vain sinner." Pl. Add Facts PP 1562-1566. Ms. Steuerwald told
Ms. Robinson to
repeat after her: "I will pray to God and ask him to keep me
from thinking in vain ways." Ms. Robinson repeated the statement. Ms. Robinson
and others
present began crying. Pl. Add. Facts P 1568-1570. Ms. Mulder
was crying because it upset her to see her fellow workers so upset and
because she felt that
Ms. Steuerwald had "reduced her to slime," that Ms. Mulder was
a horrible person because she wasn't practicing Ms. Steuerwald's beliefs.
Pl. Add. Facts P
1571.
At one point during the May 1996 meeting, Ms. Steuerwald mentioned
something about the Holy Spirit. Mary Mulder responded: "You act
[*99] as though,
when you talk about the Holy Spirit that this is something totally
new in your life. If you believed in God, what did you believe in if you
didn't believe in the
Holy Spirit?" Ms. Steuerwald responded that she had learned not
to be a sinner and not to be a vain person and that her new way of life
taught her about
the Holy Spirit. Ms. Steuerwald then continued for a lengthy
period of time giving the attendees of the May 1996 meeting examples of
how they were
sinners. She said that, instead of trying to deal with each other
in a religious fashion, looking toward God for answers, they were going
to supervisors and
they weren't dealing with their problems when there really was
no problem; she told them it was just a fact that they were just being
bad to each other,
being sinners, and being vain people. When Ms. Steuerwald said
things like "You're all sinners," she would look at each person in attendance.
Some of the
"you're all sinners" comments were directed at Mary Mulder. Pl.
Add. Facts PP 1573-1580.
During the May meeting, Ms. Steuerwald asked Ms. Mulder whether
she prayed over her work. Ms. Mulder responded that she was not raised
to pray for
material gain and that she [*100] thought it was
selfish to do so. Ms. Steuerwald replied: "Your kind are the hardest to
break." Def, Facts PP 640, 641.
During the May 1996 meeting, Becky Selm started to argue with
another employee. During the argument, Ms. Selm burst into tears and said:
"I'm a sinner,
I'm a sinner, oh, God, please forgive me, I'm a sinner." Ms.
Steuerwald commented that: "Becky is the only one in this room who is on
the right path to
being a good Christian." The May 1996 meeting ran until the end
of the day. At the close of the meeting, Ms. Steuerwald said: "I see it's
the end of the
day. It's time for us to get ready to leave. You know, there
are people that are going to be passing us in the hallway. I would like
for them to think that
we're all in accordance with each other. I think it's time that
we should sing a song together." Ms. Mulder reluctantly joined in the singing
of "Jesus Loves
Me." She thought: as a person who believes in God, it was hard
not to join in on some of the things that went on at Preferred. Ms. Mulder
thought she
was in such a weakened state at that moment that she needed some
strength herself and it felt like such a horrible thing to say, gee, God,
I'm going to
insult [*101] you now and not sing this simple little
child's song. Ms. Mulder did not consider singing the song a choice. Pl.
Add. Facts PP 1581-1588.
On May 22, 1996, Ms. Steuerwald sent a memo to Kathy Robinson,
Carol Fuzzell, Becky Selm, Amy Butler, Angie Weiskittel and Mary Mulder
entitled "Your
New Walk." Ms. Steuerwald intended the memo to teach the recipients
that "carnal weapons are reasoning and spiritual weapons would be prayer.
And so
I was trying to teach them instead of reasoning some of the things
they were and coming up with wrong conclusions, it would be better to pray
about
those things." Def. Facts P 645 and Pl. Resp. The memo entitled
"Your New Walk" read, in part:
I thank my God every time I remember
you. In all my prayers for all of you, I always pray with joy because of
your partnership with me in living
out the gospel.
In my daily prayer journal this week,
I had these 2 lessons and felt I should share them with you. The Divine
Reasonings of Faith and the
explanation of it will encourage you
in your walk of laying down your carnal weapons. The admonition is to "Seek
ye first the kingdom of God,
and His righteousness, all these things
shall be added unto you. [*102] " Matthew 6:33
Please feel free to share with me your
trials and victories. I'm believing for you and in you!
Pl. Add. Facts P 1595. Mary Mulder interpreted the phrase "laying
down your carnal weapons" to mean that the attendees should stop being
vain and start
becoming more Godly, and not go against Ms. Steuerwald's wishes;
that everyone was supposed to walk in this religious path that Ms. Steuerwald
wanted them to go into. Pl. Add. Facts P 1597.
After receiving the memo, Ms. Mulder left a meeting in frustration
when someone in attendance remarked that they needed to pray about some
matter. Ms.
Mulder stated as she left that she was tired of hearing about
"praying about it." Def. Facts PP 646, 647.
Two weeks before Ms. Mulder quit, Kristi Fenter, the acting branch
manager, referred to those in attendance at a staff meeting as sinners
because they
had continued to argue over paperwork and other office matters.
At that point, Ms. Mulder began crying, could not stop and had to leave
the room. Def.
Facts P 648, 649.
Ms. Mulder found herself growing depressed. She would go home
in tears at night because of the events at work. Def. Facts P 651; Pl.
Add. Facts P 1602.
Ms. [*103] Mulder resigned on June 30, 1996, because
she could no longer tolerate the campaign of religious activities at Preferred.
Pl. Add. Facts P
1603, Def. Facts P 650. In her resignation letter to Ms. Steuerwald,
Ms. Mulder stated that the burden she could no longer bear was not the
stress of the
job but Ms. Steuerwald's religious convictions. Def. Facts P
652.
III. Analysis.
A. Summary Judgment Standard.
The parties here have established a record of dubious distinction.
Pursuant to Local Rule 56.1 they have submitted factual statements consisting
of 1,624
separately numbered items. Most consist of two or three paragraphs
including statements of fact, rebuttals, and sur-replies. The statements
of fact fill 372
pages. They are replete with legal arguments, objections, and
arguments concerning the admissibility of statements and the evidence underlying
them,
and verbal pot-shots at one another. We expect better from able
counsel such as those on both sides of this action.
Even though this case is more complicated than most employment
discrimination cases, it is useful to remind parties who make such voluminous
submissions that summary judgment was not designed to be a "paper
[*104] trial." Instead, on a motion for summary judgment, "the court
has one task
and one task only: to decide, based on the evidence of record,
whether there is any material dispute of fact that requires a trial." Waldridge
v. American
Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994); Winter v. Minnesota
Mutual Life Insurance Company, 199 F.3d 399, 408 (7th Cir. 1999). Also
see Harbison v.
The Prestige Group, 2001 U.S. Dist. LEXIS 5024, 2001 WL 395786
(S.D. Ind. 2001) at *1; Moore v. Hosier, 43 F. Supp. 2d 978, 987-988 (N.D.Ind.
1998). We
also note that, while the grant of a motion for summary judgment
effectively ends a lawsuit on the merits, the denial of a summary judgment
motion is
"strictly a pretrial order that decides only one thing -- that
the case should go to trial"; denial of the motion "does not settle or
even tentatively decide
anything about the merits of the claim." Switzerland Cheese Ass'n,
Inc. v. E. Horne's Market, Inc., 385 U.S. 23, 25, 87 S. Ct. 193, 195, 17
L. Ed. 2d 23 (1966).
See Watson v. Amedco Steel, Inc., 29 F.3d 274, 277 (7th Cir.
1994).
Thus, "summary judgment serves as the ultimate [*105]
screen to weed out truly insubstantial lawsuits prior to trial." Crawford-El
v. Britton, 523 U.S. 574,
600, 118 S. Ct. 1584, 1598, 140 L. Ed. 2d 759 (1998); Higgs v.
Carver, 2000 U.S. Dist. LEXIS 18930, 2000 WL 1902190 (S.D. Ind. 2000) at
*2. It is not,
however, a substitute for a trial, notwithstanding the "drift"
in that direction that then Chief Judge Posner noted. Wallace v. SMC Pneumatics,
Inc., 103 F.3d
1394, 1397 (7th Cir. 1997). In considering a motion for summary
judgment, we draw all inferences in a light reasonably most favorable to
the non-movant.
Where a jury trial has been requested, it is neither our job,
nor is it within our competency, to resolve swearing contests. Nor do we
have authority on
summary judgment to choose among disputed issues of fact. Weeks
v. Samsung Heavy Industries Company, Limited, 126 F.3d 926, 933; Giannopoulos
v.
Brach & Brock Confections, Inc., 109 F.3d 406, 410 (7th Cir.
1997). In determining a motion for summary judgment, we bear in mind that
a genuine issue of
material fact exists if there is sufficient evidence for a reasonable
jury to return a verdict in favor of the non-moving party [*106]
on the particular issue.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.
2505, 2510, 91 L. Ed. 2d 202 (1986); Eiland v. Trinity Hosp., 150 F.3d
747, 750 (7th Cir. 1998).
"Material facts are those which might affect the outcome of the
suit" under the prevailing substantive law. Insolia v. Philip Morris Inc.,
216 F.3d 596, 598-99
(7th Cir. 2000); Anderson, 477 U.S. at 248, 106 S. Ct. at 2510.
See Local Rule 56.1(h) ("For purposes of summary judgment, a material fact
is a potentially
outcome determinative fact." An issue is "genuine" if a reasonable
trier of fact could find in favor of the nonmoving party. Anderson, 477
U.S. at 248, 106 S.
Ct. at 2510.
On summary judgment, the initial burden rests on the moving party
to demonstrate "that there is an absence of evidence to support the nonmoving
party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91
L. Ed. 2d 265, 106 S. Ct. 2548 (1986). After the moving party shows the
absence of a genuine
issue for trial, the burden shifts to the non-movant, which must
"go beyond the pleadings," to present evidence of a genuine [*107]
factual dispute
precluding summary judgment. Id. at 322-23. If the party opposing
summary judgment fails to present evidence that would reasonably permit
the finder of
fact to find in its favor on a material question, then the court
must enter summary judgment against the non-movant. Waldridge v. American
Hoechst Corp.,
24 F.3d 918, 920 (7th Cir.1994); Celotex, 477 U.S. at 322-24;
Anderson, 477 U.S. at 249-52).
B. Preliminary Matters.
Before turning to the substantive claims underlying this case,
we address three preliminary matters. These issues were raised by two motions
collateral to
Defendants' Motion for Summary Judgment: Preferred's "Establishment
Objections"; and EEOC's Motion for Partial Summary Judgment which seeks
dismissal of Preferred's affirmative defenses. The third preliminary
issue was raised by Preferred on summary judgment. It alleges that some
of the EEOC's
claims do not rest on a timely charge of discrimination. Accordingly,
Preferred argues, the EEOC's pattern or practice claim is time barred and
so is the
failure-to-hire claim it brought on Teresa Raloff's behalf.
These preliminary [*108] matters involve important
issues of law whose resolution have an impact on the substantive claims.
We address these
preliminary issues here instead of in a separate entry in order
to avoid the unnecessary multiplication of entries involving issues that
are inextricably
related to one another.
1. Preferred's "Establishment Objections."
Preferred filed a document entitled "Establishment Objections,"
which we construe as a motion to strike certain factual assertions by the
EEOC as well as
the evidence that the EEOC has offered in support of those factual
assertions. At the heart of Preferred's argument is the contention that
the EEOC, an
agency of the federal government, exceeded its constitutional
authority by focusing on Jackie Steuerwald's religious beliefs to such
an extent that it has
unlawfully intruded into her free exercise of religion, in violation
of the First Amendment and the Religious Freedom restoration Act, 42 U.S.C.
§§ 2000bb,
et seq. (RFRA). n9 Preferred seeks, in effect, to strike the
offending statements and the evidence in support of those statements from
the EEOC's
opposition to summary judgment. We are not persuaded that such
action [*109] is warranted. Clearly, the effect of granting
Preferred's motion would be
to find as a matter of law that the EEOC's pattern or practice
claims are not viable. Resolution of this issue bears implications for
both the merits of the
case and for the resolution of certain evidentiary issues.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - -
- - - - - - - - -
n9 42 U.S.C. § 2000bb(1) provides:
(a) In general
Government shall not substantially burden a person's exercise
of religion even if the burden results from a rule of general applicability,
except as provided
in subsection (b) of this section.
(b) Exception
Government may substantially burden a person's exercise of religion
only if it demonstrates that application of the burden to the person --
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling
governmental interest.
(c) Judicial relief
A person whose religious exercise has been burdened in violation
of this section may assert that violation as a claim or defense in a judicial
proceeding
and obtain appropriate relief against a government. Standing
to assert a claim or defense under this section shall be governed by the
general rules of
standing under article III of the Constitution.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - -
- - - - - - - - - [*110]
We begin with the obvious. Title VII prohibits an employer from
discriminating against employees on the basis of religion. 42 U.S.C. §
2000e-2(a)(1). The
statute defines "religion" to include "all aspects of religious
observance and practice, as well as belief. . . ." 42 U.S.C. § 2000e(j).
See Anderson v. U.S.F.
Logistics, 274 F.3d 470, 475 (7th Cir. 2001). Title VII prohibits
employers from taking adverse employment actions against employees on the
basis of
religious criteria; this includes prohibiting employers from
harassing employees on the basis of religion. n10 Novitsky v. American
Consulting Engineers,
LLC, 196 F.3d 699, 701 (7th Cir. 1999); Venters v. City of Delphi,
123 F.3d 956, 971-972 (7th Cir. 1997). Additionally, just as it empowers
the EEOC to
investigate and conciliate race and sex discrimination (among
others), Title VII also authorizes the EEOC to investigate and conciliate
complaints of
religious discrimination, and it empowers the EEOC to sue on
its own behalf as well as on behalf of complaining parties. 42 U.S.C. §
2000e-5(b).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - -
- - - - - - - - -
n10 Title VII also includes a "reasonable accommodation" provision
with respect to religion. While the case law arising under that provision
has proven
useful here, the "reasonable accommodation" provision itself
is not specifically at issue. Analysis of disparate treatment is different
from reasonable
accommodation analysis. Venters, 123 F.3d at 972.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - -
- - - - - - - - - [*111]
This case involves, perhaps to an unprecedented degree, the clash
of two sets of religious rights: the rights of the plaintiffs, pursuant
to Title VII, to be
free from a religiously-hostile work environment and from employment
decisions based on religious criteria or preferences; and the rights of
Preferred
personnel, including Jackie Steuerwald, pursuant to the First
Amendment and the RFRA, to be free from government interference in the
free exercise of
their religion in operating their business. It is important to
bear in mind that this case does not involve a "balancing" of the plaintiffs'
religious rights and
Preferred's religious rights as if their respective rights were
asserted against each other. Instead, the issues here involve two different
legal relationships:
Title VII positions the plaintiffs against Preferred; the First
Amendment and the RFRA pit Preferred against the federal government (in
its persona as the
EEOC).
Thus, in the underlying complaint -- involving the relationship
between Preferred and its employees -- the EEOC alleges that Preferred
violated Title VII by
fostering or condoning a hostile work environment and by making
employment decisions on the basis [*112] of religion, thus
violating the employees'
right to work in an environment free from decisions based on
religious requirements. By its Establishment Objections -- which involves
the relationship
between Preferred and the federal government -- Preferred has
asserted that some of the EEOC's factual assertions, and the evidence underlying
those
assertions, are the product of the EEOC's overly-aggressive and
intrusive inquiry into Ms. Steuerwald's religious beliefs and the religious
beliefs of other
employees and former employees of Preferred, in violation of
the First Amendment and the RFRA. In an argument akin to a fruit-of-the-forbidden-tree
argument, Preferred asks us to remedy the EEOC's alleged impermissible
intrusion by striking its pattern or practice claims -- which arise from
the alleged
intrusion -- and thus to limit the EEOC's complaint to its disparate
treatment allegations.
We decline Preferred's invitation to strike the allegedly offending
statements and evidence because we find that the EEOC did not exceed its
constitutional
authority in its investigation into Preferred's alleged religious
discrimination. Although Preferred entitles its pleading "Establishment
Objections, [*113] "
its arguments arise at the intersection of the First Amendment's
"establishment" and "free exercise" clauses. n11 Preferred's essential
point is that the
EEOC has unlawfully intruded into Jackie Steuerwald's religious
beliefs and practices in order to make its Title VII case against Preferred.
Thus, whether
we analyze its motion through the structure provided by Lemon
v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971) and
its progeny -- as
Preferred suggests in its Establishment memorandum -- or through
the regime provided by the RFRA and Employment Division, Dep't of Human
Resources of
Oregon v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d
876 (1990) -- on which Preferred relies more heavily in its motion for
summary judgment -- we
arrive at the same conclusion.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - -
- - - - - - - - -
n11 The Seventh Circuit noted in Venters, 123 F.3d at 969, that,
while the free exercise and establishment clauses "constitute distinct
protections, they
also embody 'correlative and coextensive ideas, representing
only different facets of the single great and fundamental freedom [of religion].'
Everson v.
Board of Educ. of Ewing Tp., 330 U.S. 1, 40, 67 S. Ct. 504, 523,
91 L. Ed. 711 (1947) (Rutledge, J., dissenting). Consequently, "any attempt
to formulate a
bright-line distinction is bound to founder.'"
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - -
- - - - - - - - - [*114]
What has become known as "the Lemon test" consists of three factors:
"First, the statute must have a secular legislative purpose; second, its
principal or
primary effect must be one that neither advances nor inhibits
religion; finally, the statute must not foster an excessive government
entanglement with
religion." 403 U.S. at 612-13, 91 S. Ct. at 2111. See I.C.L.U.
v. O'Bannon, 259 F.3d 766, 770 (7th Cir. 2001); Books v. City of Elkhart,
235 F.3d 292, 301 (7th
Cir. 2000).
Preferred concedes that the first two Lemon criteria are satisfied
here. It questions only the third factor: "excessive entanglement." It
argues that: "The
EEOC has immersed itself into [sic] the religious beliefs of
Preferred's owner and its current and former employees. In doing so, it
has enmeshed itself in
an administrative entanglement of religion." Def. Memo., p. 3.
In other words, the EEOC's involvement with Preferred has resulted in government's
excessive entanglement in religion. We disagree.
Our points of departure are Lemon and Agostini v. Felton, 521
U.S. 203, 117 S. Ct. 1997, 138 L. Ed. 2d 391 (1997), in which the Supreme
[*115] Court
modified Lemon's "excessive entanglement" inquiry so as to merge
"excessive entanglement" analysis with "advance or inhibit" analysis. Mitchell
v. Helms,
530 U.S. 793, 807, 120 S. Ct. 2530, 2540, 147 L. Ed. 2d 660 (2000)
(acknowledging that Agostini modified Lemon test); n12 DeStefano v. Emergency
Housing Group, Inc., 247 F.3d 397, 405 (2d Cir. 2001). In other
words, if it cannot be shown that the government's action has the "effect"
of either
"advancing" or "inhibiting" religion, then it will be exceedingly
difficult to show that the government is excessively "entangled" in religion.
In analyzing the
"excessive entanglement" prong, "it is simplest to recognize
why entanglement is significant and treat it . . . as an aspect of the
inquiry into a statute's
effect." 521 U.S. at 233, 117 S. Ct. at 2015.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - -
- - - - - - - - -
n12 Although the Supreme Court has struggled for more than a century
to generate a consistent understanding of the establishment clause, it
has found
itself compelled to acknowledge that it can only "dimly perceive
the boundaries of permissible government activity in this sensitive area."
Mitchell v. Helms,
530 U.S. 793, 120 S. Ct. 2530, 2540, 147 L. Ed. 2d 660 (2000)
(plurality opinion) (quoting Tilton v. Richardson, 403 U.S. 672, 678, 91
S. Ct. 2091, 29 L. Ed.
2d 790 (1971) (plurality opinion)).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - -
- - - - - - - - - [*116]
The Second Circuit has set forth a succinct analysis of the factors as follows:
When presented with Establishment Clause
challenges, we are required to ask "'whether the government acted with
the purpose of
advancing or inhibiting religion' and
'whether the aid has the effect of advancing or inhibiting religion.'"
We employ "three primary criteria" to
answer the latter question: whether
the action or program "result[s] in governmental indoctrination; define[s]
its recipients by reference to
religion; or create[s] an excessive
entanglement." These same factors can in most situations be evaluated to
answer what is often thought
to be a separate question, whether a
practice amounts to an unconstitutional government "endorsement" of religion.
DeStefano, 247 F.3d at 406 (internal citations omitted). See
Agostini, 521 U.S. at 222-223, 117 S. Ct. at 2010; Nottelson v. Smith Steel
Workers D.A.L.U.
19806, AFL-CIO, 643 F.2d 445, 453-454 (7th Cir. 1981) (upholding
constitutionality of Title VII religious accommodation provision against
establishment
challenge). cert. denied, 454 U.S. 1046, 102 S. Ct. 587, 70 L.
Ed. 2d 488 (1981). [*117]
Preferred has presented no evidence to support its contentions
that the EEOC has acted with the purpose of advancing or inhibiting religion
or that the
EEOC's conduct has had the effect of advancing or inhibiting
religion. Instead, it argues that the EEOC took 2 1/2 years to conduct
its investigation, took
twenty-four depositions (and obtained leave to take a dozen more),
and inquired deeply into the witnesses' religious beliefs. The latter inquiries,
Preferred asserts, were compelled under the EEOC's subpoena power
and were conducted on EEOC premises. These facts lead Preferred to conclude
that
the federal government has become a constant, unlawful intrusion
into Ms. Steuerwald's and others' religious beliefs and practices and that
there is no
end in sight. n13
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - -
- - - - - - - - -
n13 In its initial brief, Preferred referred to itself as an organization
that "can be characterized as a religious institution." Def. Memo in Support
of
Establishment Objections," p. 4. It thus appeared that Preferred
was seeking to exempt itself from Title VII, 42 U.S.C. § 2000e-1(a),
which contains the
following exemption: "This subchapter shall not apply to . .
. . a religious corporation, association, educational institution, or society
with respect to the
employment of individuals of a particular religion to perform
work connected with the carrying on by such corporation, association, educational
institution. .
. ." In its reply brief, Preferred clarified its position by
stating it is not arguing that it is exempt from a Title VII lawsuit.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - -
- - - - - - - - - [*118]
Even assuming that Preferred has stated the investigative record
correctly, we see no evidence of any long-term government entanglement
in Preferred's
affairs. The EEOC has conducted one investigation and combined
its causes of action into one lawsuit. Nor do we have any reason to believe
that the
EEOC (or any other government agency) will have continued oversight
over Preferred or its employees. Nor has the EEOC expressed any qualitative
judgment with respect to the substance of their religious views.
We see no indication that Ms. Steuerwald's personal religious beliefs or
conduct have
changed as a result of the EEOC's investigation and no indication
that any religion other than hers (or, for that matter, no religion at
all) has been
materially advanced by the EEOC's actions.
We further note that the EEOC's authority to investigate, conciliate,
and institute legal proceedings have been upheld in the context of other
powerful First
Amendment interests, most notably that of free speech. In EEOC
v. University of Pennsylvania, 493 U.S. 182, 110 S. Ct. 577, 107 L. Ed.
2d 571 (1990), the
Supreme Court upheld the EEOC's power to subpoena confidential
peer review records [*119] notwithstanding the university's
interests in preserving
academic freedom and in encouraging members of its tenure and
promotion committee to engage in unconstrained speech. Even though the
Court has
recognized academic freedom as a "special concern of the First
Amendment, Keyishian v. Board of Regents of University of New York, 385
U.S. 589, 603, 87 S.
Ct. 675, 683, 17 L. Ed. 2d 629 (1967), it would not limit the
EEOC's authority to conduct discovery on an issue on which it bore the
burden of proof --
discrimination -- beyond a showing of relevance. 493 U.S. at
194, 110 S. Ct. at 584-585.
We also note that it is a commonplace of Title VII law that a
plaintiff may state a viable cause of action for harassment under Title
VII by pointing to
employers' speech that is racially or gender biased. This means
that some employer speech, even speech that would ordinarily be protected
under the
First Amendment, is subject to restriction imposed by federal
statute.
Some courts have raised the question of whether the government
may lawfully limit political speech of a racially or sexually derogatory
nature. The Fifth
Circuit raised the issue in DeAngelis v. El Paso Municipal Police
Officers Association, 51 F.3d 591, 596-597 (5th Cir. 1995), [*120]
a sex harassment case
involving a public employer. Although the Fifth Circuit did not
resolve the issue, it posed it as follows:
Where pure expression is involved, Title
VII steers into the territory of the First Amendment. It is no use to deny
or minimize this problem
because, when Title VII is applied to
sexual harassment claims founded solely on verbal insults, pictorial or
literary matter, the statute
imposes content- based, viewpoint-discriminatory
restrictions on speech.
Also see Saxe v. State College Area District School, 240 F.3d
200, 205-207 (3d Cir. 2001) (Title IX case involving harassment). Most
courts have simply
assumed, without deciding any First Amendment issue, that the
use of racial epithets or sexually demeaning language may constitute Work
place
harassment. E.g., Rodgers v. Western-Southern Life Ins. Co.,
12 F.3d 668 (7th Cir. 1993) ("Perhaps no single act can more quickly "alter
the conditions of
employment and create an abusive working environment," than the
use of an unambiguously racial epithet such as "nigger" by a supervisor
in the
presence of his subordinates. [Internal citation omitted]). The
courts [*121] have thus silently endorsed Title VII's limitations
on speech that would be
protected in environments other than the work place.
Two courts that have addressed the matter squarely go further.
They have found that racially and sexually derogatory speech that constitutes
workplace
harassment is not "protected speech" under the First Amendment.
In other words, remedies may be imposed on employers that permit such expression
because it is not protected. Robinson v. Jacksonville Shipyards,
Inc., 760 F. Supp. 1486 (M.D. Fla. 1991); Baty v. Willamette Industries,
Inc., 1997 U.S. Dist.
LEXIS 8031, 1997 WL 292123 (D. Kans. 1997). Several powerful
reasons for this finding are applicable in this case: first, the regulation
of discriminatory
speech in the workplace may be interpreted as a "time, place,
and manner regulation of speech," and thus as a regulation which does not
offend
constitutional principles; second, those subjected to unwelcome
speech in the work place are "captive audiences," who enjoy some protection
against
otherwise protected speech; third, "a court may require a private
employer to curtail the free expression in the workplace of some employees
in order to
remedy the [*122] demonstrated harm inflicted on
other employees without violating the First Amendment"; and, finally, "as
long as it has been
determined that a harm has been and continues to be inflicted
on identifiable individuals and the context of the speech is the heart
of the cause of action,
the First Amendment has not been violated." n14 Baty, 1997 U.S.
Dist. LEXIS 8031 at *7.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - -
- - - - - - - - -
n14 Even in the context of public employment -- where the employer
is, by definition, "the government" -- speech is not absolutely protected.
E.g.,
Weicherding v. Riegel, 160 F.3d 1139 (7th Cir. 1998) (summary
judgment affirmed against prison guard terminated for engaging in Ku Klux
Klan and white
supremacist speech and activities because activity, while otherwise
protected, was insufficient to overcome public employer's interest in a
safe and efficient
work place); Hardy v. Jeffersonville Community College, 260 F.3d
671 (6th Cir., 2001) (professor's in-class use of terms "nigger" and "bitch,"
even in context
of academic analysis of hate speech, while protected by First
Amendment, was insufficient to overcome public employer's interest in efficiency
in the work
place, so that professor had no action for retaliation when his
contract was not renewed).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - -
- - - - - - - - - [*123]
We view these First Amendment speech cases as instructive by analogy.
They illuminate the well-settled principle that speech which may be unassailable
in the streets -- even if provocative or repugnant -- is not
necessarily protected in the workplace. Such speech is often as heart-felt
and sincere as Ms.
Steuerwald's religious speech. But no court to our knowledge
has yet held that the EEOC's intrusion into the political speech of private
employers is an
unlawful intrusion into the employer's First Amendment rights.
Instead, where the intrusion is limited to workplace speech that tends
to isolate, classify, or
restrict employees or otherwise rises to the level of interfering
with the terms and conditions of their employment, such intrusions have
been accepted as
lawful, albeit silently so.
In sum, Preferred has presented no evidence from which we might
reasonably infer that the EEOC's action results in governmental indoctrination,
or
defines the recipients of its conduct by reference to religion,
or creates an excessive entanglement in religion. In other words, there
is no evidence to
support the conclusion that the EEOC's actions in this matter
have created a government preference [*124] for religion over
no religion (or vice versa) or
for one religion over another.
Free exercise analysis under the RFRA is substantially identical.
In United States v. Indianapolis Baptist Temple, 224 F.3d 627, 629 (7th
Cir. 2000), the
Seventh Circuit acknowledged the individual's "absolute" freedom
"to believe and profess whatever religious doctrines one desires" and the
broad,
though not absolute freedom "to practice (through the performance
or non-performance of certain actions) one's religion." However, the Court
continued:
"neutral laws of general application that burden religious practices
do not run afoul of the Free Exercise Clause." The same is true under the
RFRA: "Under
RFRA, laws that substantially burden the free exercise of religion
cannot be enforced unless the burden furthers a compelling government interest
and is
the least restrictive means of furthering that interest." Id.
at 630.
Here, there is no evidence that EEOC's conduct in investigating
Preferred's alleged discrimination or in bringing this lawsuit constitutes
a "substantial
burden" on Jackie Steuerwald's religious beliefs or practices.
Let us be even clearer: even assuming [*125] that the effect
of the EEOC's investigation
and this lawsuit was to force Preferred to conform to Title VII's
prohibitions against making employment decisions on the basis of religious
criteria, we
would find that the investigation and lawsuit did not "substantially
burden" Ms. Steuerwald's religious beliefs or practices. Nor do we find
a conflict
between Title VII and the RFRA. Accordingly, we do not find that
Congress's authorization of the EEOC to investigate instances of religious
discrimination
and harassment clashes with its legislative purpose to preserve
and protect the free exercise of religion unless we find that the EEOC
somehow
overstepped its bounds in conducting its investigation. As we
observed earlier, there is no evidence that it did.
But even if the EEOC had substantially burdened Jackie Steuerwald's
religious beliefs or practices in prosecuting this matter, its conduct
still comports with
the RFRA's mandates. There is a "compelling government interest"
in creating such a burden: the eradication of employment discrimination
based on the
criteria identified in Title VII, including religion. University
of Pennsylvania v. EEOC, 493 U.S. 182, 202, 110 S. Ct. 577, 589, 107 L.
Ed. 2d 571 (1990);
[*126] Young v. Northern Illinois Conference of United
Methodist Church, 21 F.3d 184, 185 (7th Cir.), cert denied, 513 U.S. 929,
115 S. Ct. 320, 130 L. Ed. 2d
281 (1994). As Justice O'Connor stated in her oft-cited concurring
opinion in Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 711-712, 105
S. Ct. 2914,
2919, 86 L. Ed. 2d 557 (1985):
In my view, a statute outlawing employment
discrimination based on race, color, religion, sex, or national origin
has the valid secular purpose
of assuring employment opportunity to
all groups in our pluralistic society. Since Title VII calls for reasonable
rather than absolute
accommodation and extends that requirement
to all religious beliefs and practices rather than protecting only the
Sabbath observance, I
believe an objective observer would
perceive it as an anti-discrimination law rather than an endorsement of
religion or a particular religious
practice."
As previously noted, Preferred is a private sector, for-profit
company and not a religious institution subject to Title VII's exemption.
Accordingly, we need
not address any potential clash between Title VII and the First
Amendment [*127] involving the question of whether the government
has intervened in
an employment matter that arises within the unique province of
a religious institution's theological or ecclesiastical mandate. See, EEOC
v. Roman Catholic
Diocese of Raleigh, North Carolina, 213 F.3d 795, 800-801 (4th
Cir. 2000); Bollard v. California Province of the Society of Jesus, 196
F.3d 940, 945 (9th Cir.
1999); EEOC v. The Catholic University of America, 317 U.S. App.
D.C. 343, 83 F.3d 455, 460-461 (D.C. Cir. 1996).
Here, in addition to finding that the EEOC's intrusion into Preferred's
religious practices is pursuant to a compelling government interest, we
also find that
the intrusion is the least restrictive means that Congress could
have used to effectuate its purpose.
First, Title VII provides a uniform approach to eradicating employment
discrimination in its various manifestations. Its religion provisions include
two kinds
of employee protection: it requires employers to make a "reasonable
accommodation" for employees' religious beliefs and practices; and it prohibits
discrimination on the basis of religious criteria. It provides
for a systematic approach [*128] to EEOC investigation and
conciliation. And it provides a
uniform method for filing complaints and lawsuits both on behalf
of the public in general and on behalf of individuals. If the EEOC were
to tiptoe around
particular religious beliefs and practices by making exceptions
for one or more particular religions or religious practices -- e.g. Saturday
observance
versus Sunday observance, or dietary restrictions, and the like
-- it would tax the system beyond endurance. See, United States of America
v. Indianapolis
Baptist Temple, 224 F.3d 627, 630 (7th Cir. 2000). Ironically,
such an individualized approach would also make the EEOC more susceptible
to claims of bias.
In contrast, by approaching all cases according to the same procedures,
EEOC maintains neutrality and makes any departure from neutrality easier
to
identify.
Second, the EEOC is the federal agency charged with investigating
complaints of discrimination on the basis of religion, seeking to conciliate
controversies
between employers and employees, and, where appropriate filing
suit against employers on behalf of individual complainants and to vindicate
the public
interest. 42 U.S.C. § 2000e-5. [*129] As the
Supreme Court has observed: "When the EEOC acts, albeit at the behest of
and for the benefit of specific
individuals, it acts also to vindicate the public interest in
preventing employment discrimination." General Tel. Co. of the Northwest,
Inc. v. Equal Employment
Opportunity Commission, 446 U.S. 318, 100 S. Ct. 1698, 64 L.
Ed. 2d 319 (1980) (emphasis added); Occidental Life Ins. Co. v. EEOC, 432
U.S. 355, 368, 97 S.
Ct. 2447, 2455, 53 L. Ed. 2d 402 (1977) ("Under the procedural
structure created by the 1972 amendments, the EEOC does not function simply
as a
vehicle for conducting litigation on behalf of private parties;
it is a federal administrative agency charged with the responsibility of
investigating claims of
employment discrimination and settling disputes, if possible,
in an informal, noncoercive fashion"). Also see E.E.O.C. v. Waffle House,
Inc., 534 U.S. 279, 122
S. Ct. 754, 760-761, 151 L. Ed. 2d 755 (2002).
In addition to our finding that the government has used the least
restrictive means to accomplish a lawful end, we also note two practical
issues that
militate in favor of permitting the EEOC's statements and the
evidence [*130] it offers in support of them. First, Title
VII requires the EEOC as the plaintiff
here to prove that Preferred created or condoned a hostile environment
and discriminated against its employees on the basis of religion. It can
vindicate
this duty only by gathering evidence that will support its burden
of persuasion. Since Title VII disparate treatment cases such as this one
inherently involve
the motives and intent of one or more decision makers in taking
certain employment actions, the decision maker(s)'s beliefs are admissible
evidence of
such motives. Indeed, without evidence of such motives, the case
is likely to be dismissed on summary judgment. E.g., St. Mary's Honor Center
v. Hicks, 509
U.S. 502, 509, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993); Vakharia
v. Swedish Covenant Hospital, 190 F.3d 799, 807 (7th Cir. 1999); Bennett
v. Schmidt, 153
F.3d 516, 518 (7th Cir. 1998).
A piece of evidence is relevant if its introduction makes some
fact at issue in the case more or less likely. Fed.R.Evid. 401. It follows
that a decision maker's
religious beliefs and statements -- particularly those expressed
in the work place and about employment [*131] -- are relevant
to a lawsuit alleging
discrimination on the basis of religion. Indeed, they may constitute
direct evidence of discrimination in a Title VII case. Vakharia, 190 F.3d
at 806, n. 7;
Cowan v. Glenbrook Security Services, Inc., 123 F.3d 438, 443
(7th Cir. 1997). Preferred has offered no evidence to suggest that the
EEOC's inquiries into
Ms. Steuerwald's religious beliefs and/or practices are anything
other than an inquiry into the employer's discriminatory intent incident
to its burden of
proof in this Title VII action.
Similarly, contrary to Preferred's allegations and objections,
it does not appear that the EEOC has focused on Ms. Steuerwald's faith
or personal beliefs to
show that they are intrinsically discriminatory. n15 The EEOC
has focused on Ms. Steuerwald's beliefs, as well as those of other management
personnel,
only to the extent that they may have affected management's employment
decisions and the employees' work environment. In other words, EEOC has
presented Ms. Steuerwald's beliefs and practices in the most
obviously pertinent way: as evidence to support an inference that Preferred
management
used religious criteria to [*132] make employment
decisions. EEOC argues, in effect, that where, as here, management is profoundly
committed to a set
of beliefs and to implementing those beliefs in the work place,
then a jury may reasonably take management at its word by inferring that
management
actually based its employment decisions on those beliefs. The
Supreme Court has held that: "The Constitution does not erect a per se
barrier to the
admission of evidence concerning one's beliefs and associations
. . . simply because those beliefs and associations are protected by the
First Amendment."
Dawson v. Delaware, 503 U.S. 159, 112 S. Ct. 1093, 117 L. Ed.
2d 309 (1992), quoted in Saxe v. State College Area District School, 240
F.3d 200, 207 (3d Cir.
2001) ("we see no constitutional problem with using an employer's
offensive speech as evidence of motive or intent in a case involving an
allegedly
discriminatory employment action.").
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - -
- - - - - - - - -
n15 One of Preferred's recurrent objections to the EEOC's statement
of additional material facts is: "Preferred objects to Additional Fact
No. because, to
the extent the EEOC is suggesting that this is evidence of unlawful
discrimination, the government's fixation on [name of Preferred manager]'s
religious
beliefs and practices constitutes an excessive entanglement of
religion and violates [name of manager]'s rights under the Free Exercise
and Establishment
Clauses of the Constitution." For a few examples among many,
see Def. Resp. to Pl. Add. Facts PP 756-764..
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - -
- - - - - - - - - [*133]
Second, and tellingly, we note that Preferred itself introduced
Ms. Steuerwald's religious beliefs and practices in support of its motion
for summary
judgment. It did so on numerous occasions throughout its statements
of fact; for example, in the subsection of its Statements of Fact entitled
"Jackie
Steuerwald's Faith." See, e.g., Def. Facts, PP 9-22, 24-26, 32,
34, 37-38, 43-47. Preferred also offered extensive accounts of the religious
preferences of
the complainants and of their supervisors in its factual recitations
pertaining to each. As the party moving for summary judgment, Preferred
filed its
statements of fact and brief first. In doing so, it opened the
issue of Ms. Steuerwald's and others' religious beliefs and practices.
Preferred cannot offer
such evidence in support of its position and then object to the
EEOC's use of the same or similar evidence against it. n16 United States
v. Chaimson, 760
F.2d 798, 810 (7th Cir. 1985) ("when a party opens up a subject,
even though it may not be strictly relevant to the case, he cannot complain
on appeal if
the opposing party introduces evidence on the same subject.").
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - -
- - - - - - - - -
n16 To cite one example among many, we note the following. Preferred
stated in Fact Statement No. 378: "Also during the interview, Ms. Wright
asked
whether Ms. Stute was a Christian, and shared with Ms. Stute
the history of PHHC and some of her own religious background." EEOC stated
in its
Additional Facts, No. 1164, about the same interview: "During
the interview, Darlene Wright discussed in great detail her religious history,
that she was a
Christian, and how she loved and served the Lord." Preferred
objected to the EEOC's statement: "To to the extent the EEOC is suggesting
that this
remark constitutes evidence of religious discrimination, Preferred
objects, because the remark represents constitutionally protected expression."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - -
- - - - - - - - - [*134]
In sum, we reject Preferred's challenge to EEOC's evidence and
statements of fact based on that evidence. We find that EEOC did not violate
the First
Amendment or the RFRA in conducting its investigation or in prosecuting
this lawsuit. Accordingly, to the extent that Preferred's Establishment
Objections is
a motion to strike, we DENY its motion.
2. Charge-Filing Statute of Limitations and Teresa Raloff's Claim
The EEOC alleges that Preferred refused to hire Theresa Raloff
because of religion. It is uncontested that Jackie Steuerwald interviewed
Ms. Raloff for a
position in February 1995. Raloff Dep., 33-34. During that interview,
Ms. Steuerwald asked Ms. Raloff what religion she subscribed to. Ms. Raloff
responded: "Unitarian." Ms. Steuerwald replied: "You damned humanists
are ruining the world." She also told Ms. Raloff that she would "burn in
hell,"
whereupon Ms. Steuerwald told Ms. Raloff that Ms. Raloff was
not appropriate for employment with the company and terminated the interview.
Ms. Raloff
did not get the job. Pl. Add. Facts, P 1623; Raloff Dep., 42-43.
If Ms. Raloff's claim is not otherwise barred, these facts are sufficient
to raise a reasonable
inference that religious [*135] criteria played a
role in Ms. Steuerwald's refusal to hire Ms. Raloff.
Preferred argues, however, that, even if we assume Ms. Raloff's
factual recitation to be true, Ms. Raloff's claim is time barred. It argues
that, since the
Seventh Circuit's decision in EEOC v. Harvey L. Walner &
Associates, 91 F.3d 963 (7th Cir. 1996), the ordinary 300 day charge filing
statute of limitations
which applies to individual plaintiffs also applies to cases
in which the EEOC is the named plaintiff, unless the EEOC has a valid pattern
or practice claim.
Preferred argues that, since Theresa Raloff never filed an EEOC
charge, her cause of action is valid only if it legitimately piggy-backs
on the EEOC's pattern
or practice claims. It follows, Preferred argues, that because
Ms. Raloff never filed a charge, because Ms. Raloff alleges conduct that
occurred in February
1995 (more than 300 days before the complaint was filed), and
because this Court has found that EEOC's pattern or practice claim is unsupported
by
sufficient evidence, then the EEOC's complaint on behalf of Ms.
Raloff is time barred. Def. Brief, pp. 5, 16-17.
EEOC argues to the contrary that, as the agency charged with enforcing
[*136] the civil rights statute in the public interest, it is exempted
from various
procedural bars, including, under certain circumstances, the
300-day charge-filing requirement. Pl. Brief, p. 25. It also argues that,
as long as it bases its
complaint on some timely-filed charge of discrimination that
is reasonably like or related to the action recited in the complaint, it
may include in the
complaint a claim for which the individual did not file a charge.
We agree with the EEOC that the Harvey Walner case does not stand
for the blanket proposition that the EEOC must have a valid pattern or
practice claim
in order to include a cause of action for which no timely charge
was filed. For reasons clearly addressed by the district court in EEOC
v. Mitsubishi Motor
Manufacturing of America, 990 F. Supp. 1059, 1084-1085 (C.D.Ill.
1998), where the EEOC does have a viable pattern or practice case it is
clear that no
"timely" charge (that is, a charge filed within 300 days after
the alleged discriminatory act) is needed as the basis for its subsequent
lawsuit. But, even
where EEOC does not have a viable pattern or practice claim,
it still may proceed on the basis of [*137] at least one timely
charge that is like or
reasonably related to the complaint allegation. Harvey Walner,
91 F.3d at 969. The problems that the EEOC encountered in Harvey Walner
arose because it
had none of the three bases upon which it could proceed: a Commissioner's
charge, or an allegation of a pattern or practice of discrimination, or
any timely
charge of discrimination. In other words, it had none of the
three pillars upon which to base its standing to proceed.
For reasons spelled out in greater detail in sub-part D-4 below,
we find that the EEOC does have valid pattern or practice claims. But even
absent a valid
pattern or practice claim, there were four timely charges on
which Ms. Raloff's claim could legitimately be piggy-backed. Sondra Sievers
filed a charge on
April 2, 1996, alleging that she had been demoted on the basis
of religion and later discharged on the basis of religion or in retaliation
for having
complained about religious discrimination. Diana DeWester filed
a charge on June 24, 1996 alleging that she was harassed and constructively
discharged
on the basis of religion. Ellen Blice filed a charge on July
6, 1996 alleging that she was [*138] harassed and discharged
on the basis of religion. And
Mary Mulder filed a charge on July 26, 1996 alleging that she
had been harassed and constructively discharged based on religion. n17
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - -
- - - - - - - - -
n17 Ms. Sievers filed with the EEOC. Ms. DeWester, Ms. Blice,
and Ms. Mulder initially filed with the Indiana Civil Rights Commission,
but their filings were
treated as joint filings with the EEOC. The four charges are
attached as Exhibits A, C-1, C-2, E, and G to the Webster Smith Affidavit
submitted by EEOC in
support of its Motion for Partial Summary Judgment.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - -
- - - - - - - - -
In addition, Diana DeWester's handwritten statement to the EEOC
specifically referred to a comment that Ms. Steuerwald made at a branch
managers'
meeting. Ms. Steuerwald referred to a candidate for a job who
had declared that she was a Unitarian and that Ms. Steuerwald told the
candidate she
would not fit in. Ms. DeWester's notes led the EEOC to further
investigation, which uncovered Ms. Raloff's failure-to-hire allegation
as well as allegations by
Sherry Stute and Suzanne [*139] Elder. Smith Aff.
P 13; Aff Ex. I. On April 28, 1998, nearly two years before filing the
complaint in this matter, the EEOC
notified Preferred that it had arrived at a determination that
Preferred had discriminated on the basis of religion and specifically mentioned
the failure to
hire and failure to promote among its findings. n18 Indeed, Diana
DeWester testified that after the interview with the avowed Unitarian,
Jackie Steuerwald
stated at a branch managers' meeting that she may have her first
lawsuit, involving a Unitarian from the Southwest who wouldn't fit in.
Pl. Add. Facts PP
1410, 1411. We conclude from these facts that Preferred had sufficient
notice of the EEOC's potential lawsuit on behalf of Ms. Raloff and that
Ms. Raloff's
claim is viable if it is sufficiently like or related to the
charges actually filed.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - -
- - - - - - - - -
n18 The EEOC's April 28 Notices states in part: "Evidence obtained
during the investigation also demonstrates that Respondent engaged in a
pattern or
practice of discrimination against a class of individuals by
subjecting them to harassment, disciplinary action, demotion, different
terms and conditions of
employment and discharge, and by failing to hire or promote individuals
based on their religious beliefs or the perception by company officials
that they
somehow did not meet the company's religious standards." Smith
Aff. P 17, Aff. Ex. O, P, Q, R (emphasis added).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - -
- - - - - - - - - [*140]
Preferred argues that Ms. Raloff's failure-to-hire allegation
is not sufficiently like or related to the four charges filed. Again, we
disagree. All four EEOC
charges alleged that Preferred engaged in disparate treatment
job discrimination in which individuals were singled out for adverse treatment
based on
their religious beliefs (or lack thereof). Additionally, the
"like or related to" standard is designed largely for the purpose of providing
notice (or, conversely,
preventing surprise) to the potential defendant and, as we earlier
noted, Preferred cannot reasonably claim that it had insufficient notice
of Ms. Raloff's
claim to defend against it. Kristufek v. Hussmann Foodservice
Co., 985 F.2d 364, 368-369 (7th Cir. 1993).
Additionally, it is well settled that the EEOC may include in
a complaint allegations that are uncovered during the course of an investigation.
O'Rourke v.
Continental Casualty Co., 983 F.2d 94, 97 (7th Cir. 1993) ("issues
implied by a charge and communicated to the employer in the course of investigation
can
enlarge the set of claims open to litigation"), citing Jenkins
v. Blue Cross Mutual Hospital Insurance, Inc., 538 F.2d 164, 167 (7th Cir.
1976) [*141] (en
banc). Here, the EEOC not only notified Preferred that its investigation
had uncovered an allegation that was like or reasonably related to those
of the filed
charges, it provided notice that specifically mentioned an instance
of failure to hire.
In view of the fact that Preferred has challenged Ms. Raloff's
discriminatory failure to hire claim only with respect to its timeliness,
and in view of the
evidence offered by EEOC -- including Preferred's admission that
"Ms. Steuerwald terminated the interview because of Ms. Raloff's religious
beliefs" Def.
Facts P 658 -- this Court cannot hold as a matter of law that
Ms. Steuerwald was not unlawfully motivated by religious criteria in her
decision not to hire
Ms. Raloff. Accordingly, Preferred's motion for summary judgment
on timeliness grounds as to the claim that Preferred refused to hire Ms.
Raloff on the
basis of her religion is DENIED.
3. EEOC's Motion for Partial Summary Judgment.
The EEOC has moved for summary judgment on nine of Preferred's
affirmative defenses. Specifically it asks us to find as a matter of law
that: (a) it
complied with conditions precedent before filing its lawsuit;
(b) its lawsuit states a viable cause [*142] of action; (c)
Preferred Management Corporation is
a proper defendant; (d) the complaint's class allegations are
properly pleaded because they are like or reasonably related to the charges
of discrimination;
(e) the Commission complied with the conciliation requirements
of 42 U.S.C. § 2000e-5 and exhausted all administrative remedies;
(f) this class action is
validly brought, but is not governed by Fed.R.Civ.P. 23; (g)
the EEOC satisfied the statute of limitations; (h) the EEOC did not waive
any claims nor should it
be estopped from asserting any of them; and (i) this lawsuit
is not barred by the First Amendment prohibition against an establishment
of religion. n19
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - -
- - - - - - - - -
n19 In the interest of clarity, we note that our lettering (a)-(i)
corresponds to the EEOC's motion for partial summary judgment (b)-(j).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - -
- - - - - - - - -
In response to the EEOC's motion, Preferred asserts that it does
not contest items (e), (f) and (g). Accordingly, we GRANT the EEOC's motion
for partial
summary judgment with respect to [*143] those items.
Our discussions in sub-parts B-1 and B-2 above resolve the issues
raised in items (a), (b), (d), (h), and portions of (i) in favor of the
EEOC as a matter of
law. There we found, more specifically, that: the EEOC's complaint
allegations were like or reasonably related to the administrative charges
filed
antecedent to it; the EEOC exhausted all pertinent administrative
requirements; the lawsuit (including the failure-to-hire claim on behalf
of Teresa Raloff) is
not time barred in whole or in part by any statute of limitations;
and that Preferred's First Amendment arguments do not bar the lawsuit either
in its
entirety or in that part which alleges a pattern or practice
of harassment or disparate treatment. There, and in sub-part D-4 below,
we also found that the
EEOC has alleged facts sufficient to establish a pattern or practice
claim of hostile environment as well as individual disparate treatment.
Accordingly, we
GRANT EEOC's motion for partial summary judgment as to items
(a), (b), (d), (h), and a portion of (i).
We are thus left with two issues on the EEOC's motion for partial
summary judgment: (c) whether Preferred Management Corporation is a proper
defendant; and [*144] that portion of (i) which,
according to Preferred's interpretation, asks us to grant a motion in limine
masquerading as a motion for
partial summary judgment with respect to the statute of limitations:
specifically, EEOC asks us to deem admissible the EEOC's introduction of
evidence
concerning certain acts that occurred prior to June 18, 1995
or after July 26, 1996. We take these up in reverse order.
Relevant Background Evidence. In opposing the EEOC's motion with
respect to the introduction of evidence concerning events before June 18,
1995 and
after July 26, 1996, Preferred provides no specific examples
of objectionable evidence. We are unaware of any instance in which the
EEOC has introduced
inadmissible evidence on summary judgment concerning events during
the two identified periods. The EEOC is correct in stating that evidence
concerning
events that occurred more than three-hundred days before the
filing of a charge is ordinarily admissible as relevant background evidence.
United Air Lines,
Inc. v. Evans, 431 U.S. 553, 558, 97 S. Ct. 1885, 52 L. Ed. 2d
571 (1977) (time-barred conduct "may constitute relevant background evidence
in a
proceeding in which the [*145] status of a current
practice is at issue."); Shanoff v. Illinois Department of Human Services,
258 F.3d 696, 705 (7th Cir.
2001); Parkins v. Civil Constructors of Illinois, Inc., 163 F.3d
1027, 1036 n. 2 (7th Cir. 1998).
By the same token, we will not make a blanket determination that
any and all such evidence will be admissible at trial. Evidentiary decisions
are properly
made in a motion in limine or at the time of their introduction
at trial and we will reserve such decisions until they arise at those more
appropriate times.
Accordingly, to the extent that the EEOC's motion may be interpreted
to ask for a blanket ruling that evidence concerning acts before June 18,
1995 and
after July 26, 1996 is admissible, we DENY that portion of its
motion.
Preferred Management Corporation. The parties correctly observe
that the Seventh Circuit's decision in Papa v. Katy Industries, 166 F.3d
937, 940 (7th Cir.)
cert. denied, 528 U.S. 1019, 120 S. Ct. 526, 145 L. Ed. 2d 408
(1999) governs the question of whether Preferred Management Corporation
is a proper
defendant here. In Papa, the Seventh Circuit abandoned the "integrated
[*146] enterprise" test to determine whether corporations that are
nominally
separate and distinct business entities are in reality so completely
integrated with one another that liability for the misdeeds of an affiliate
may be visited
upon the parent. In Papa, the court determined that, in order
to hold a parent liable for the act of its affiliate, the moving party
must show that the parent
took some action so as to forfeit its separate and independent
status. Id. at 941.
Three sorts of actions qualify to establish liability in the parent:
(1) actions that would traditionally permit a court to pierce the corporate
veil; (2) action "for
the express purpose of avoiding liability under the discrimination
laws"; or (3) where "the parent corporation might have directed the discriminatory
act,
practice, or policy of which the employee of its subsidiary was
complaining." Id. at 940-941. The last of these three possible exceptions
to corporate
independence appears to apply most clearly here. Its sine qua
non is: whether "the parent, or any other affiliate of [Preferred], or
the enterprise as a
whole formulated or administered the specific personnel policies,
[*147] or directed, commanded, or undertook the specific personnel
actions, of which
the plaintiffs are complaining."
The undisputed facts here militate in favor of PMC's liability
and, therefore, its viability as a defendant. As we noted at the outset
of this entry, the
Preferred companies consist of four operating companies, a real
estate company, and PMC, the management company. All of the Preferred entities
are
owned equally by Jackie and Greg Steuerwald. All of the Preferred
companies use the same personnel manual, financial policies, and employee
benefits.
With the exception of Preferred Properties, all of the Preferred
entities have the same officers and board of directors. PMC provides training
for all of the
operating companies; it also manages the operating companies'
payrolls, finances, information systems, and human resources.
Ms. Steuerwald is president and CEO of the entities and Michael
Pyatt was PMC's Director of Human Resources. Preferred also boasts that:
"Preferred is
merely the instrument through and by which Ms. Steuerwald expresses
her religious beliefs. . . ." Def. Brief in Support of S.J., p. 11, n.
2. If the Seventh
Circuit continued to subscribe to the "integrated [*148]
enterprise" test, we could readily find as a matter of law that PMC is
the alter ego of the other
entities and is liable for any acts of discrimination proved
against any of them. In view of Papa, however, there remains a genuine
issue of material fact as
to whether PMC can be said to have "formulated or administered
the specific personnel policies, or directed, commanded, or undertook the
specific
personnel actions, of which the plaintiffs are complaining."
Accordingly, the issue of whether PMC is a proper defendant remains open
to further proof,
either pre-trial or at trial. Further identification of the "executive
team's" relationship to PMC and the other entities might help to resolve
this open matter
of fact.
Accordingly, on the record before us, we DENY the EEOC's motion
for summary judgment with respect to whether PMC is a proper defendant.
C. Hostile Environment and Constructive Discharge.
The EEOC alleges that Preferred created, encouraged, condoned,
or tolerated a hostile work environment that affected the terms and conditions
of
employment of Sondra Sievers, Ellen Blice, Suzanne Elder, Sherry
Stute, Diana DeWester, and Mary Mulder It also alleges that Preferred
[*149] engaged
in a pattern or practice of hostile environment harassment --
that is, that Ms. Steuerwald and other management personnel routinely made
their own
religious values and preferences the guiding principals of daily
work life, preached a particular brand of religion as work place orthodoxy,
proselytized
employees to join in their religious preferences, and conditioned
the work environment on a particular set of religious precepts. Related
to these claims of
harassment are the EEOC's claims of constructive discharge on
behalf of Suzanne Elder, Sherry Stute, Diana DeWester, and Mary Mulder.
Preferred asks us to decide as a matter of law that it did not
create, encourage, condone, or tolerate a hostile work environment based
on religion. It asks
us to find that jurors could not reasonably infer from the evidence
that Ms. Steuerwald and her management personnel made their particular
religious
beliefs and practices part of the routine atmosphere of work
life at Preferred and that the atmosphere could not have been intimidating,
abusive, or hostile
to a reasonable employee. It also asks us to find that for employees
Elder, Stute, DeWester, and Mulder to have resigned their employment
[*150] was
unreasonable as a matter of law. We cannot accept any of Preferred's
invitations. We do not say that a jury must find that the work environment
was
hostile and abusive for those who did not toe the religious line
drawn by Ms. Steuerwald and her management personnel or that it must find
that the
named employees acted reasonably in resigning their employment.
But we do hold that only a jury can make those determinations because the
evidence is
sufficient to raise genuine issues of material fact.
Because the evidence concerning the individual claims of harassment
and constructive discharge overlaps the evidence of the pattern or practice
claim, we
discuss all three in this section. We find that the EEOC has
presented sufficient evidence to raise a genuine issue of material fact
that the work
environment was hostile and abusive for the named complainants
and to support its pattern or practice claim. As we discuss at subsection
6, we also find
that there is sufficient evidence to support the claims of constructive
discharge.
1. The Law of Hostile Environment.
The law of hostile environment has evolved more fully in the context
of gender discrimination than in the other [*151] Title VII
protected classifications
and we are, of course, constrained to apply the law as it has
evolved. But we are also mindful of the Supreme Court's and the Seventh
Circuit's
admonitions that Title VII's proof schemes are designed to be
sufficiently flexible to change with respect to different factual circumstances.
In other words,
one size does not necessarily fit all. McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802 n. 13, 93 S. Ct. 1817, 1824 n. 13, 36 L. Ed.
2d 668 (1973), Gadsby
v. Norwalk Furniture Corp., 71 F.3d 1324, 1334-1335 (7th Cir.
1995); DeClue v. Central Illinois Light Company, 223 F.3d 434, 439-440
(7th Cir. 2000) (Rovner,
J., dissenting) ("Discrimination in the real world many times
does not fit neatly into the legal models we have constructed."). We find
these cautions
particularly apt in the area of religion, where individuals'
values, beliefs, and convictions run deep.
Title VII prohibits employers from discriminating against employees
on the basis of religion. Its prohibitions include creating, condoning,
or tolerating a
hostile work environment. Drawing from the law of sex harassment,
a "hostile" work [*152] environment is one that is "permeated
with 'discriminatory
intimidation, ridicule, and insult,' that is 'sufficiently severe
or pervasive to alter the conditions of the victim's employment and create
an abusive working
environment.'" Shanoff v. Illinois Dept. of Human Services, 258
F.3d 696, 704 (7th Cir. 2001) (internal citations omitted); Adusumilli
v. City of Chicago, 164
F.3d 353, 361 (7th Cir. Ill. 1998). The issue of whether the
work environment is hostile "turns on whether the alleged harassment occurred
because of the
[religion] of the complainant." Haugerud v. Amery School District,
259 F.3d 678, 692 (7th Cir. 2001). In other words, the question is whether
the employee
was "'exposed to disadvantageous terms or conditions of employment
to which members of the [dominant religion were] not exposed.'" Id. quoting
Oncale
v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S. Ct.
998, 140 L. Ed. 2d 201 (1998).
Proof of hostile environment is two pronged. In order to prevail,
the EEOC must present evidence sufficient to raise a reasonable inference
that the
complainants subjectively experienced the environment to be abusive;
it must also show, [*153] objectively, that reasonable persons
in their positions
also would have perceived it to be hostile. Haugerud, 259 F.3d
at 693; Adusumilli, 164 F.3d at 361. In order to determine whether the
work environment is
objectively hostile, we consider all of the circumstances, including
"the frequency of the discriminatory conduct, its severity, whether it
was physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee's work performance."
Haugerud, 259
F.3d at 693.
2. Pattern or Practice
The evidence presented by the EEOC will support an inference that
Preferred management -- including its President and CEO Jackie Steuerwald
-- created
and condoned a work environment in which their espousal of religious
beliefs and practices was pervasive. Indeed, defendant's own recitation
of the
facts, set forth in some detail earlier in this entry, amply
supports the conclusion that Jackie Steuerwald and other management personnel
viewed it as
their duty to share their religious beliefs with Preferred employees
and even to encourage employees to convert to Ms. Steuerwald's brand
[*154] of
Christianity and that she lost few opportunities to do so.
Title VII expressly prohibits employers from engaging in a "pattern
or practice" of discrimination based on the statute's protected criteria.
42 U.S.C. §§
2000e-6(a). In order to establish a pattern or practice case,
the EEOC must present evidence from which a trier of fact reasonably could
infer that the
offensive conduct alleged is the employer's "standard operating
procedure," its "regular rather than the unusual practice." The parties
here correctly
acknowledge that it is not enough for a plaintiff to show that
the employer engaged in "isolated" or "sporadic" acts of discrimination.
Instead, the evidence
must show that the conduct is "repeated, routine or of a generalized
nature." International Brotherhood of Teamsters v. United States, 431 U.S.
324, 336, 97
S. Ct. 1843, 1855, 52 L. Ed. 2d 396, (1977) (quoting Senator
Humphrey); King v. General Electric Company, 960 F.2d 617, 620 (7th Cir.
1992), rehearing en
banc denied. As we have already discussed, "isolated" or "sporadic"
acts of discrimination are, of course, unlawful and may be made the subject
of [*155]
a cause of action. Ordinarily, however, such conduct is actionable
in individual (or collective) disparate treatment claims rather than in
pattern or practice
cases. See, e.g., Cooper v. Federal Reserve Bank of Richmond,
467 U.S. 867, 878, 104 S. Ct. 2794, 2800, 81 L. Ed. 2d 718 (1984).
Ms. Steuerwald's religious values, precepts, and practices were
constituent elements of the very structure of the organization, beginning
with Ms.
Steuerwald's Mission and Values Statement and proceeding to her
organizational wheel with Jesus Christ at its center. It also extended
to her
management personnel, all of whom shared a vision of religiosity
consistent with her own, and who were usually selected to perform management
responsibilities for that reason and on that basis. Ms. Steuerwald
testified forthrightly that she could not separate her religion from the
work place and
that she made decisions on the basis of her religion.
A jury could reasonably infer from the evidence that:
. Ms. Steuerwald openly shares with her employees her belief that
God directed her to establish her company and that Preferred is God's home
care
agency.
. Ms. Steuerwald believes that "The Great Commission" [*156]
directs her to share her faith with her employees in the work place. Asked
whether she
believes that religion is appropriate in the workplace, Ms. Steuerwald
responded: "If you're a person of faith, it can't be separated. . . . I
don't leave my
faith at the door when I go to work. . . It permeates my thinking,
my decisions."
. Ms. Steuerwald shares with her employees her narrative entitled
"The Transfiguration of Preferred," which is distributed to employees,
especially new
hires, and discusses her belief that God was involved in Preferred's
establishment and direction. Preferred's mission statement includes that
its primary
mission is "to be a Christian dedicated provider of quality health
care."
. Preferred requires employees -- as a condition of employment
-- to sign a statement that included the words: "I have examined myself
and I agree that I
have respected and actively supported Preferred's Mission and
Values during this past year of employment and I agree to respect and actively
support
Preferred's Mission and Values for the coming year."
. A jury may reasonably infer from the evidence that management
personnel are selected in significant part on the basis of their commitment
[*157] to
religious views and practices that are consistent with Ms. Steuerwald's.
Thus, a jury may reasonably conclude from such evidence that Ms. Steuerwald
is
able to enforce her religious preferences, and actually did enforce
them in the work place, by employing managers whose religious thinking
is consistent
with her own and who will implement her religious vision. The
following management personnel, whose actions and statements are summarized
below,
held positions with various levels of decision-making authority:
. Human Resources Director Michael Pyatt, a policy-making member
of the executive management team, with authority to hire and fire, describes
himself as
a born again Christian of fundamentalist persuasion. Mr. Pyatt
conducted devotions on company time on company premises. He distributed
to employees a
publication entitled "Focus on Managing," which contained Biblical
and religious references. He conducted a meeting at which he said that,
because the
employees "weren't reaching out to each other and being like
Godly children should be," that was why their work wasn't flowing; he added
that, if they
centered their lives around Jesus, then everything wold flow.
When Mary Mulder [*158] told him she was uncomfortable with
all the religion in the work
place, he said to her that her kind was the hardest kind to break.
. Diane Christian, a member of the executive management team,
served as director of training and development and later became the company's
Northern
Area Administrator. Although nominally a Catholic, she informed
Chaplain Chuck Harrington about being born again, when, in the midst of
a Mass, she lifted
her hands and asked Jesus to come into her heart and she was
transformed. She also told Chaplain Johnny Garrison that she had a one-on-one
experience with Jesus at church where she felt like she had really
opened her heart to him to become Lord of her life. Ms. Christian told
Diana DeWester
that, as far as religious views were concerned, "it was Jackie
Steuerwald's way or the highway." She also told Ms. DeWester that Ms. Steuerwald
did not
think Ms. DeWester would fit in at Preferred because of Ms. DeWester's
"nonbeliefs." Ms. Christian warned Ms. DeWester to be "very, very careful."
. Ann Parker was Preferred's Southern Area Administrator from
1990 through November 1995. As Southern Area Administrator, she supervised
branch
managers in the Vincennes, [*159] Jasper and Washington
offices. Ms. Parker testified that, as a manager she was required to be
a "role model," which
meant, among other things, that she and other managers were expected
to attend devotions and that attendance at devotions was mandatory. Ms.
Parker recommended that Sondra Sievers, who reported to her,
read the book, "This Present Darkness," a book about spiritual warfare,
which, she said,
might help Ms. Sievers understand Jackie Steuerwald's and Darlene
Wright's beliefs and the beliefs of the other people with whom she was
working. Ms.
Parker had been instructed in a management meeting to include
"trust in the Lord" as part of the evaluation process. Accordingly, on
an employee
evaluation which included a section addressing Preferred's values,
Ms. Parker wrote the words "in the Lord" next to the value of "trust."
Ann Parker told
Suzanne Elder that as a branch manager, Suzanne Elder would have
to start having devotions in the Lawrenceville office. n20
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - -
- - - - - - - - -
n20 Notwithstanding this apparent consistency between Ms. Parker's
and Ms. Steuerwald's religious beliefs, Ms. Parker resigned her position.
Undisputed
evidence shows that, at a breakfast meeting in Vincennes, Ms.
Steuerwald stated that if her managers were not where they should be spiritually,
they
should resign, and that: "I have done this with my top management
people, and your area director, Ann Parker, has resigned." Pl. Add. Facts
P 975.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - -
- - - - - - - - - [*160]
. Teresa Jennings (later Hedges) served as branch manager of the
Lawrenceville facility, where she began the practice of devotions. She
was promoted to
Southern Area Administrator in December 1995. As the Southern
Area Administrator, Ms. Jennings had the authority to hire and fire employees.
Ms.
Jennings told Sherry Stute that it was mandatory for her and
her staff to attend an in-service on fasting that Chaplain Chuck Harrington
was presenting.
Ms. Jennings put together a self-improvement plan for Sherry
Stute which included daily Bible readings and daily prayer. It also included
a topic on how to
heal a "wounded spirit," which is allegedly how Ms. Jennings
described Ms. Stute. Ms. Jennings made numerous remarks, recounted earlier
in this enry
detail, disparaging of Catholicism.
. Nellie Foster was initially hired as a consultant for Preferred
and in January 1996 became a member of the corporate team as a training
and development
manager. Ms. Foster's prior work experience included working
as a minister of Christian education at the Southwest Church of God. She
was responsible
for teaching the Leader in the Making program, which was described
to employees as a way to "understand [*161] Jesus modeled leadership."
Preferred
frankly acknowledges that Ms. Foster's leadership program was
based on Biblical materials.
Def. Facts P 128.
Ms. Foster spoke about scriptures in her management training and
referenced the Bible and religion in the handouts she distributed during
those
sessions. Corporate and branch managers were required to attend
sessions of the Leader in the Making management program. In conjunction
with the
area administrators, Ms. Foster had authority to decide who met
the qualifications for the Leader in the Making management program. Ms.
Foster
conducted a meeting entitled "Habits of Highly Successful People"
at which she presented the "Lordship Ladder." She asked Sondra Sievers:
"What was
the last sin you committed?" and "What was the last thing you
asked God forgiveness for?" She asked Ms. Sievers whether she could pray
over her. Ms.
Foster told Mary Mulder that religion was inseparable from the
work place.
. Sue Klein succeeded Sondra Sievers as branch manager of the
Vincennes branch. Ms. Klein was interviewed by a panel consisting of Darlene
Wright, Terry
Jennings and Chaplain Chuck Harrington. Her interviewees summarized
their opinions about her [*162] qualifications, including the
following: her strong
faith in Jesus; faith is a priority with her; she has Godly values;
Sue's faith is devoted and inspiring; honesty, integrity and a dependence
on the Lord for
guidance; God is her source of wisdom and strength; faith, honesty,
and caring; and Trust in God. While serving as branch manager, Ms. Klein
routinely
prayed over employees and their work, and suggested prayer and
devotions to employees.
. Wanda Wallace became acting branch manager for the Evansville
branch in February 1996. Ms. Wallace asked Sherry Stute whether she had
read her
daily scriptures and told her that she needed to do so in order
to progress. Ms. Wallace also brought in a Bible, laid it on Ms. Stute's
desk, and told her
that they would be studying this Bible. She referred to Ms. Stute
as a "wounded spirit," told Jackie Steuerwald that Ms. Stute was a wounded
spirit, and
said that the Bible says wounded spirits need healing and nurturing.
She told Ms. Stute that she needed to study the Bible and pray more. Ms.
Wallace put
her hands on Sherry Stute and prayed for Ms. Stute's headache
to go away.
. Since 1990, Darlene Wright has been the personnel director for
the [*163] southern district of Preferred. Ms. Wright's responsibilities
included
pre-screening of applications, preliminary interviewing of applicants,
making recommendations to supervisors about applicants, making recommendations
about corrective actions and discipline, and making the recommendation
to fire an employee. Ms. Wright told Suzanne Elder to read the Bible and
once
attempted to conduct a laying of hands on her. Ms. Wright counseled
Ms. Elder to show a constant verbal expression of her faith.
Ms. Wright told Sherry Stute at her interview that Preferred is
a Christian organization. She asked Ms. Stute at her interview whether
she was a Christian,
and shared with Ms. Stute the history of Preferred and some of
her own strong commitment to religion. She told Ms. Stute that she and
Jackie Steuerwald
had prayed in a closet together at some point because they didn't
know how the other people in the office would receive prayer in the work
place. Ms.
Wright referred to speaking in tongues at employee meetings.
. Preferred's management personnel use the company's missions
and values definitions to evaluate and discipline employees. Preferred
does not deny
that employees were terminated for [*164] violating
the values in the Mission and Values Statement, which included religious
values and goals.
. Preferred gives copies of the company's mission statement, statement
of values, values definitions, the organizational "wheel," and the "Transfiguration"
to all applicants as they apply for employment. Applicants are
informed that Preferred is a Christian organization and that prayers are
recited at Preferred.
Ms. Steuerwald told Sondra Sievers and others that a candidate
for employment who said that there was no room in the work place for religion
did not
belong at Preferred.
. The company employs two chaplains. It employs an "evangelism
and discipleship" subcommittee, whose members have prayed for the salvation
of
employees.
. Devotions are held weekly on company time and on company premises.
Managers are expected to attend and Ms. Steuerwald keeps track of those
who
attend and those who don't.
. All management meetings are opened with prayer.
. The company routinely distributes literature on religious topics to employees through their mailboxes on company premises.
. Employees were asked in public meetings to share their religious experiences with the assembled employees. [*165]
. Employees were asked in public meetings about the sins they had committed.
. Employees with non-conforming religious views were routinely
told that they were sinful, weak, not walking in God's path, broken or
wounded, in need of
spiritual guidance or development.
. Ms. Steuerwald referred to her employees as "sinners."
. Ms. Steuerwald stated that if her managers were not where they should be spiritually, they should resign.
. Employees with non-conforming religious views were told of Ms. Steuerwald's visions of the Antichrist and told that they were walking in the flesh.
. Employees with non-conforming religious views were assigned
to Nellie Foster's Leader in the Making program, which is admittedly a
program grounded
in Biblical teachings. They were told that they had to be "broken."
. The Catholic church and its faith -- with which complaining
parties Sondra Sievers, Ellen Blice, Sherry Stute, Suzanne Elder, Dona
DeWester, and Mary
Mulder were affiliated -- were roundly ridiculed by management
in word and in deed. Ms. Steuerwald visibly froze when informed that an
employee was a
Catholic. Ms. Steuerwald asked Ms. Sievers, while giggling, whether
it is "really true that [*166] you keep the Holy Spirit in
a box at the front of your
church?" When Sherry Stute said at a meeting that she had converted
to Catholicism, Ms. Steuerwald allegedly had a devastated look on her face,
her
eyes got large, and she looked as if she had been knocked over.
Ms. Steuerwald's demeanor toward Ms. Stute changed from a "smile" to a
"blank stare"
after learning that Ms. Stute was Catholic. Ms. Steuerwald referred
to Diana DeWester's Catholicism as non-beliefs.
Manager Becky Selm told Mary Mulder that she should not tell Jackie
Steuerwald that she was involved with the Catholic church because, according
to Ms.
Selm, Ms. Steuerwald did not like Catholics. Ms. Selm said that
she herself used to be involved with the Catholic Church, but that after
she met Jackie,
Jackie was able to bring religion into her life the way it should
be. She said she was no longer involved with the Catholic Church, and she
was heavily
involved with another church. Becky Selm also referred to Catholics
as "heathens" in Mary Mulder's presence.
Similarly, Terry Jennings said that Ms. Steuerwald had told her
that Catholics didn't believe in the Holy Spirit. Ms. Jennings also said
that Jackie Steuerwald
told [*167] her that Catholics keep God in a box
in the front of the church. Ms. Jennings told Ms. Stute that Jackie Steuerwald
had told her that Catholics
were pagans. Becky Selm, office manager of the Indianapolis office,
told Diana DeWester that she need not attend a video on the Holy Spirit
which Ms.
Steuerwald had brought because, as a Catholic, she would not
understand it.
. When Diana DeWester said at a meeting that just as there is
more than one way to get to Beech Grove there is also more than one way
to God, Ms.
Steuerwald angrily observed that such beliefs were "new age thinking
and it was not allowed at Preferred Home Health Care."
A jury could reasonably conclude from this evidence that religion
was pervasive in the work place, that it was a routine or regular aspect
of work life at
Preferred, that it was often intimidating or humiliating for
employees of non-conforming beliefs, and that it was used as a means of
classifying,
segregating, and limiting employees in violation of Title VII.
42 U.S.C. § 2000e-2(a). n21 It could conclude that employees with
conforming religious views
could expect to enjoy a satisfactory work experience while employees
with [*168] non-conforming views were ostracized and subject
to intimidation,
hostility, and abuse based on their religious beliefs and preferences.
A jury could reasonably find that such classification and segregation may,
and here
does, have a tendency to alter the terms and conditions of employment.
A jury could reasonably conclude that the terms and conditions of employment
for
employees of a non-church-affiliated, for-profit health care
company did not reasonably include the required participation in overt
acts of religious devotion
that were inconsistent with their own religious preferences.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - -
- - - - - - - - -
n21 Section 2000e-2(a)(2) makes it unlawful for an employer to:
"limit, segregate, or classify his employees . . . in any way which would
deprive or tend to
deprive any individual of employment opportunities or otherwise
adversely affect his status as an employee, because of such individual's
. . . religion. . . ."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - -
- - - - - - - - -
Based on these examples -- a representative sampling -- we conclude
that the EEOC has presented evidence sufficient [*169] to raise
an inference that
Preferred engaged in a pattern or practice of employment discrimination
by creating, tolerating, or condoning an atmosphere suffused with religious
practices that were unwelcome, abusive, insulting, and intimidating
to its employees.
3. Individual Harassment Claims
All of the harassment claims that the EEOC has brought on behalf
of the individual complainants arise against the backdrop of its pattern
or practice
evidence. This means, in the first place, that the complainants
on whose behalf the EEOC has filed these claims shared the same work environment.
All worked in the chain of command headed by CEO Jackie Steuerwald
and Director of Human Resources Mike Pyatt, who had ultimate authority
for all
employment decisions. At one time or another, all of them came
under the jurisdiction of Darlene Wright and/or Terry Jennings -- the former
as personnel
director for Preferred's southern district facilities, and the
latter as area administrator for the southern district -- and/or Diane
Christian, a member of the
executive management team, who served as director of training
and development and later became the company's Northern Area Administrator,
and/or
[*170] Nellie Foster, who administered training and other
personnel services in a corporate-wide capacity. In addition, complaining
parties Sondra
Sievers, Ellen Blice, and Sherry Stute all worked at the Vincennes
facility -- where Sue Klein became interim branch manager after Ms. Sievers
was demoted
and branch manager after Ms. Sievers was terminated -- as did
complaining party Suzanne Elder after transferring from Lawrenceville.
In other words, the
same management names tend to recur throughout these employees'
work experiences.
We find that the evidence presented by the EEOC is sufficient
to go forward on these individual claims of harassment in that they present
sufficient
evidence of "an intimidating and offensive environment which
altered the conditions of [their] employment, and thus amounted to religious
harassment
under Title VII." Venters, 123 F.3d at 972. Since the pattern
or practice evidence is set forth in considerable detail, we briefly summarize
the evidence
supporting the individual claims.
a. Sondra Sievers.
Sondra Sievers has been a practicing Catholic all of her life.
She considers herself to be a Christian in that she is baptized and believes
[*171] in Jesus
Christ. She does not, however, believe in the idea of being saved
or born again. Ms. Steuerwald knew that Ms. Sievers was a Catholic. Ms.
Sievers was
subject to a work environment in which, as a condition of her
continued employment, she was expected to participate in religious practices
that were
unwelcome and inconsistent with her own. She and her beliefs
were also subjected to ridicule and condemnation.
. Ms. Sievers was told: "You're not Christian, you're Catholic."
. Ms. Sievers was asked whether Catholics prayed to statues.
. During a luncheon with Ms. Sievers and others, Jackie Steuerwald
asked Ms. Sievers, while giggling, whether it is "really true that you
keep the Holy Spirit
in a box at the front of your church?"
. Ms. Sievers was uncomfortable signing Preferred's Mission and Values Statement. She did so in order to keep her job.
. Ms. Sievers was obliged to watch religiously-oriented videos
at work. As a Catholic, Ms. Sievers was offended by the content of the
videos and also
thought it inappropriate for Ms. Steuerwald to imply that Medicare
should pay for her to evangelize.
. At the Vincennes branch, where Ms. Sievers worked, prayer was
conducted at weekly [*172] devotions. After Sue Klein arrived
as interim branch
manager, prayers were conducted every morning. As a manager,
Ms. Sievers was expected to participate in devotions as a condition of
employment.
. Ann Parker told Ms. Sievers that Jackie Steuerwald knew which
employees attended devotions and that Ms. Steuerwald expected employees
to attend.
She also told Ms. Sievers that Ms. Steuerwald wanted staff meetings
opened with prayers.
. While still working at the Lawrenceville branch, Ms. Sievers
told Ann Parker that she was uncomfortable with the way religion was "pushed"
at Preferred.
Ms. Parker recommended that Ms. Sievers read the book, "This
Present Darkness," a book about spiritual warfare, which, she said, might
help Ms. Sievers
understand the religious beliefs of Preferred's management personnel.
. Ms. Sievers received religious memos in her mailbox. As a branch
manager, she also received from Mike Pyatt newsletters called "Focus on
Managing,"
some of which contained Biblical and religious references.
. Religion was a topic of discussion at business meetings that
Ms. Sievers attended. Jackie Steuerwald conducted meetings at which she
talked about her
religious beliefs.
. Marketing [*173] Director, Gregg Johnston, held
a branch-manager meeting which Ms. Sievers attended in which he used the
Bible and gave the
attendees a book that related to the Bible. Human Resources Director
Pyatt also conducted meetings at which he injected religious topics. And
so did
Johnny Garrison, one of Preferred's chaplains who also conducted
devotions. As a branch manager, Ms. Sievers was expected to attend all
branch
meetings.
. Ms. Sievers' work performance was evaluated in part according
to particular religious values. She was, for example, to "Trust in the
Lord and not in [her]
own understanding" as a measure of her work performance. Her
work performance was measured in part by her "constant verbal expression
of faith."
. Jackie Steuerwald told Ms. Sievers, among other managers, that if they were not where they should be spiritually, they should resign.
. Ms. Sievers was subjected to Nellie Foster's Leader in the Making
program, which included religious practices. Among other things, Ms. Foster
asked Ms.
Sievers about the last time she committed a sin and about the
last thing for which she asked God for forgiveness. When Ms. Sievers responded
that she
was a Catholic who discusses [*174] her sins with
her priest, Ms. Foster took Ms. Sievers' hand and asked her whether she
could prayer over her.
The record evidence indicates that Ms. Sievers was subjectively
offended by being required to participate in these religious practices
in the work place.
She expressed her discomfort on several occasions, but her expressions
of discomfort were construed as symptomatic of her religious deficiencies
and the
remedies that Preferred offered were the same practices that
gave rise to the offense.
Ms. Sievers also expressed her feeling of marginalization, the
sense that, because of the distance between her own religious values and
Preferred's, she
did not belong. This sense was confirmed by Jackie Steuerwald,
who said that managers who did not conform spiritually should resign, and
by Human
Resources Director Pyatt who said that management was looking
at all the managers and if they weren't where management thought should
be, changes
would be made.
We also find that a reasonable employee not in the majority group
-- and by "majority group"we mean the group whose religious values and
preferences
were consistent with Ms. Steuerwald and her management personnel,
see Venters, 123 F.3d at 972 n22 [*175] -- could also find
the atmosphere hostile
and abusive. Stated for purposes of summary judgment, we cannot
say as a matter of law that no reasonable employee similarly-situated to
Ms. Sievers
could have found the work atmosphere pervaded with religious
expressions and practices that were sufficiently frequent and demeaning
as to be hostile,
intimidating, humiliating, or abusive. Accordingly, there is
a genuine issue of material fact as to the EEOC's claim of hostile environment
on behalf of Ms.
Sievers.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - -
- - - - - - - - -
n22 Since Preferred has argued that the EEOC's claims are fatally
deficient because the agency failed to show that the complainants were
discriminated
against because of their religious views, we quote that portion
of Venters in which the Seventh Circuit rejected that argument:
"Properly understood, Venters' claim
is not that the city refused to accommodate her religious practices in
some way, but that she was
discharged because she did not measure
up to Ives' religious expectations. What matters in this context is not
so much what Venters' own
religious beliefs were, but Ives' asserted
perception that she did not share his own. She need not put a label on
her own religious beliefs,
therefore, or demonstrate that she communicated
her religious status and needs as she would if she were complaining that
the city had
failed to accommodate a particular religious
practice. Venters need only show that her perceived religious shortcomings
(her unwillingness to
strive for salvation as Ives understood
it, for example) played a motivating role in her discharge. 42 U.S.C. §
2000e-2(m).
123 F.3d at 972. This analysis also provides the basis for rejecting
Preferred's narrow definition of the plaintiff group as a group consisting
of those who
are not saved or born again.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - -
- - - - - - - - - [*176]
b. Ellen Blice
Ellen Blice began working at Preferred's Vincennes facility in
April 1994. She had received her RN and became a licensed nurse in 1993.
As a field nurse, Ms.
Blice was responsible for coordinating total client care, which
included conducting the initial assessment, determining what other services
are appropriate
(e.g., home health aids, therapists), and coordinating the client's
eventual discharge.
. Ms. Blice was a life-long Catholic. When she began her employment
with Preferred, she received a copy of Preferred's medical code of conduct,
and its
mission and values statement. Although nothing in the content
of these documents offended her, she was uncomfortable with management's
persistent
use of prayer.
. Ms. Blice received religious materials in her office mailbox,
including psalms, scriptures, prayers and religious writings about the
kind of person she
should be. She considered such practices inappropriate and found
them offensive.
. Jackie Steuerwald conducted prayer at each meetings which Ms. Blice attended.
. During Home Care 101, Ms. Steuerwald asked a series of questions
and gave prizes to the individual who was the first to answer correctly.
The [*177]
correct answers were usually "Jesus," "God," or "the Bible."
. Ms. Blice's branch manager, Sue Klein, told her that she had
to be at devotions because she needed to learn to be more humble. Indeed,
she had been
told to attend devotions on the day she was fired. Ms. Blice
did not attend devotions because they were contrary to her religious beliefs.
. Toward the end of her employment, Ms. Blice attended a meeting
with Sue Klein, Donna Drew, Karen Lemons, and Terry Jennings. At the end
of the
meeting, Ms. Blice was encouraged to be more humble, to look
to God for improvement and so that she wouldn't have as much chaos in her
life.
. After receiving a verbal warning, Ms. Blice met with Ms. Steuerwald
about the warning. Ms. Steuerwald handed Ms. Blice a song sheet for the
song
beginning "He is a mighty God" and said "You need to sing this."
Ms. Blice did not sing the song. Ms. Steuerwald stared at Ms. Blice for
the remainder of the
devotions period.
Ms. Blice subjectively experienced these religious activities
as unwelcome and offensive and she complained about them. She asked Sue
Klein several
times not to pray before giving her an answer to professional
questions that Ms. Blice had [*178] posed. During the week
preceding her termination on
February 14, 1996, Ms. Blice told Sue Klein six times not to
pray over her all the time. Similarly, although Ms. Blice routinely discarded
the religious
materials in her mailbox, she told Ms. Klein that she did not
want to receive them. The materials continued unabated. Ms. Blice testified
that she was
uncomfortable at meetings at which prayer was introduced and
in particular at the Home Care 101 meeting.
We also find that a reasonable employee not in the majority group
could have found the work atmosphere to be pervaded with religious expressions
and
practices that were intimidating, hostile, abusive, or demeaning.
That is, we cannot say as a matter of law that no reasonable employee similarly-situated
to Ms. Blice could have found the work atmosphere hostile and
abusive. Accordingly, there is a genuine issue of material fact as to the
EEOC's claim of
hostile environment on behalf of Ms. Blice.
c. Suzanne Elder.
Ms. Elder, a Catholic, began work at Preferred's Lawrenceville, Illinois facility in February 1993.
. When Sondra Sievers was promoted to the Vincennes facility,
Ann Parker offered Ms. Elder the branch manager position [*179]
at Lawrenceville, but Ms.
Elder declined because, among other reasons, branch managers
had "to allow devotions in the office and to attend meetings at the corporate
office that
would be opened with prayer."
. Terry Jennings, who became branch manager, called in Darlene
Wright to mediate certain problems that had grown up between Ms. Elder
and Ms.
Jennings. Ms. Wright described the process as Ms. Wright seeking
"to mediate the problems and make me change." Ms. Elder did not believe
that such
mediation was necessary, because the problems had nothing to
do with her work performance and were related only to her religious differences
with Ms.
Jennings.
. Ms. Wright's mediation consisted in part of reading the Bible,
which Ms. Wright said would make Ms. Elder a better person. Ms. Wright
once attempted to
conduct a laying of hands over Ms. Elder and said it would make
Ms. Elder feel better. Ms. Wright prayed at the start of each meeting.
. Ms. Wright gave Ms. Elder some books to read on personality
profiles and told Ms. Elder to read the Bible. Ms. Wright counseled her
to show a constant
verbal expression of her faith.
. After transferring to Vincennes and after Ms. Sievers discharge,
[*180] Ms. Elder attended mandatory quality assurance and nurses
meetings that would
be opened with prayer. She did not complain about prayer at meetings
because she believed she had had enough harassment in the Lawrenceville
office
and did not want to attract additional scrutiny.
. Ms. Elder attended a mandatory values presentation led by Jackie
Steuerwald. Ms. Elder objected to the value that required "subordination
of
self-interest to company interest," because her nursing training
had taught her that her interests and the company's interests may not always
be the
same, especially if she were directed to carry out an improper
order.
. Ms. Elder also objected to the part of the Mission and Values
Statement in which there were specific references to places in the Bible
and that these
Biblical definitions were the company's characterization of what
the value meant. Ms. Elder testified that she signed the Mission and Values
Statement
because she wanted to keep her job.
. Ms. Elder attended an introduction to home care at the corporate
office at which passages of scripture were read. In addition, she too attended
a Home
Care 101 seminar at which Biblical Scripture was quoted throughout
the [*181] seminar. A client care coordinator at the Home Care
101 seminar told the
audience that everyone in the company had a faith in Christ.
. Ms. Elder did not attend devotions and was asked why she wasn't attending.
. Ms. Elder received unwanted religious materials in her work place mailbox. She threw them away.
. When Sue Klein was working in quality assurance, she often brought
up religion to Ms. Elder. She told Ms. Elder that Ms. Elder's religion
does not believe
that one can pray for people after they die. She told Ms. Elder
that Mary (the Mother of Jesus) is just a person in the Bible. And she
talked about being
saved. Ms. Elder told Ms. Klein that she did not want to hear
about that.
. Ms. Elder was given a copy of the document, "Characteristics
of Broken People Prepared for Revival." Various items on the bulletin board
in the Vincennes
office had religious references on them.
Ms. Elder subjectively experienced these activities as unwelcome,
offensive, and abusive. She believed it was none of her employer's business
whether
she read the Bible, quoted scripture, or engaged in prayer. She
was upset and offended by attempts to lay hands on her. She was offended
by receiving
religious [*182] materials in her mailbox and posted
on bulletin boards in the work facility.
We also find that a reasonable employee not in the majority group
could also find the atmosphere hostile and abusive. That is, we cannot
say as a matter
of law that no reasonable employee similarly-situated to Ms.
Elder could have found the work atmosphere hostile and abusive. Accordingly,
there is a
genuine issue of material fact as to the EEOC's claim of hostile
environment on behalf of Ms. Elder.
d. Sherry Stute.
Sherry Stute was hired as Nursing Supervisor in July 1995. Shortly before, she had converted to Catholicism.
Any time Ms. Stute interacted with her branch manager, Sue Klein,
Ms. Klein made some reference to God and faith. Ms. Klein asked Ms. Stute
whether she
wanted to be her prayer partner.
. Ms. Stute was uncomfortable when Ms. Klein asked her whether she prayed and read the Bible regarding a drop in Preferred's Evansville clientele.
. When Sondra Sievers had to go to the hospital because of her
blood pressure, Ms. Klein said to Ms. Stute: "If Sondra had been right
with God she
wouldn't be having physical problems." In response, Ms. Stute
asked her whether that meant that all of Preferred's [*183]
patients were not right with
God. Ms. Klein replied: Well, that's why we are there in their
lives, so that we can bring them to the Lord before they die." Pl. Add.
Facts PP 1196-1201;
Def. Facts P 391, 392.
. Ms. Stute attended Nellie Foster's presentation on "Big People
see the Big Picture," which was a religious presentation. Although Ms.
Stute did not find
the content offensive, she found it offensive that such presentations
were mandatory in the work place.
. One of the categories on the self-assessment forms used during the in-service presentations that Ms. Stute attended was on studying the Bible.
. During Ms. Stute's orientation, she had lunch with Jackie Steuerwald
and Sondra Sievers, during which Ms. Steuerwald stated that Preferred was
operated according to the fundamentals of her religious beliefs.
While Ms. Stute expressed no conflict with Preferred's mission statement
and values, she
testified that she thought it "unreasonable to expect us to base
our day-to-day activities on the Bible verses that [Preferred management]
chose for us."
. Ms. Stute signed the values statement because she felt that if she did not sign she would be terminated.
. During a values presentation, [*184] Ms. Steuerwald
spoke of the history of Preferred, showed a religious video tape, shared
her own religious
testimony, and asked those in attendance to share how they became
Christians. When it was her turn to speak, Ms. Stute told the group that
she had
joined the Catholic Church just prior to coming to Preferred
and that she was still developing in her faith. After various individuals
expressed their faith, Ms.
Steuerwald would say "Amen" or "Praise God." When Ms. Stute said
that she had converted to Catholicism, Ms. Steuerwald had a devastated
look on her
face, her eyes got large, and she looked as if she had been knocked
over.
. After this meeting, Ms. Stute believed that Ms. Steuerwald's
demeanor toward her changed, which she attributed to having revealed that
she was
Catholic. Thereafter, Ms. Steuerwald had less interaction with
her and, when she did, the interaction lacked the "warm fuzzies" from before.
Instead of a
"smile," Ms. Stute perceived in Ms. Steuerwald's eyes a "blank
stare."
. During Ms. Stute's orientation, Ms. Steuerwald said that it
was a vision of hers that the conference room at Preferred would some day
be a church and
that people could come there and pray. [*185]
. Terry Jennings told Ms. Stute that it was mandatory for her
and her staff to attend an in-service session on fasting that Chaplain
Chuck Harrington was
presenting. Ms. Stute also believed that devotions were mandatory.
. Terry Jennings' improvement plan for Ms. Stute included daily
Bible readings, daily prayer and a checklist indicating how Ms. Stute was
progressing on the
various criteria. One of the topics of the improvement plan was
"how to heal a wounded spirit."
. Every meeting between branch manager Wanda Wallace and Sherry Stute started with prayer.
. Wanda Wallace often asked Ms. Stute whether she had read her daily scripture.
. Ms. Wallace also brought in a Bible, laid it on Ms. Stute's desk, and told her that they would be studying this Bible.
. Ms. Wallace referred to Ms. Stute as a "wounded spirit" and
stated that the Bible says wounded spirits need healing and nurturing.
Ms. Wallace told
Jackie Steuerwald that she thought Ms. Stute was a wounded spirit.
She told Ms. Stute that Ms. Steuerwald agreed with that assessment.
. Ms. Wallace told Ms. Stute that she needed to study the Bible
and pray more to overcome being a wounded spirit. She also asked Ms. Stute
if [*186]
she had confessed her sins. Ms. Stute was insulted by Ms. Wallace
classifying her as a wounded spirit.
. Ms. Wallace also told Ms. Stute that Ms. Stute was a proud person.
. Ms. Wallace brought religious tapes into the office and asked Ms. Stute to listen to them.
. After she became area administrator, Ms. Jennings told Ms. Stute
that being a Christian company, Preferred didn't do anything without including
a prayer.
She told Ms. Stute that she should go to church with Wanda Wallace.
She told Ms. Stute that Jackie Steuerwald was looking at her managers spiritually.
. Area Manager Terry Jennings made derogatory statements about Catholicism, including:
. Catholics don't believe in the Holy Spirit.
. Catholics have idols other than God.
. Catholics keep God in a box in the front of the church.
. Catholics are not considered Christians.
. Jackie Steuerwald told Ms. Jennings that Catholics didn't believe in the Holy Spirit.
. In making the sign of the cross, Catholics were making fun of God.
. Jackie Steuerwald told Ms. Jennings that Catholics were pagans.
These facts supported by admissible evidence raise a reasonable
inference that the work environment in which Ms. Stute [*187]
was employed was
pervaded by religious expressions and practices that were intimidating,
demeaning, hostile, or abusive. We cannot say as a matter of law that no
reasonable juror could have found this environment hostile. Accordingly,
there is a genuine issue of material fact as to the hostile environment
claim
brought by the EEOC on behalf of Ms. Stute.
e. Diana DeWester
Diana DeWester began work for Preferred in 1991. Although she
was hired as Director of Nursing in the Danville branch, she assisted with
the Lafayette
office for a few weeks and then became the branch manager and
nursing supervisor for the newly opened Indianapolis office. Ms. DeWester
grew up a
Presbyterian, but converted to Catholicism in 1956 when she was
18 years old. She considers herself to be a Christian. Ms. DeWester perceived
Jackie
Steuerwald's religious views as "far-right fundamentalist" and
relying on a literal interpretation of the Bible. Ms. DeWester believes
that the teachings of
the Catholic Church are consistent with a literal interpretation
of the Bible. Def. Facts PP 455, 456, 457, 458 (and Pl. Resp.),
. Diane Christian told Ms. DeWester that Jackie Steuerwald did
not think Ms. DeWester [*188] would fit in at Preferred because
of Ms. DeWester's
"nonbeliefs." Ms. Christian told Ms. DeWester to be very, very
careful.
. Ms. DeWester said at a lunch attended by Ms. Steuerwald that
Christians did not have a corner on the "God market," and that just as
there is more than
one way to get to Beech Grove, there is more than one way to
get to God. Ms. Steuerwald appeared to be very angry after Ms. DeWester
made this
comment. Ms. Steuerwald observed that Ms. DeWester's comment
"was new age thinking and it was not allowed at Preferred Home Health Care."
. Jackie Steuerwald and Diane Christian told Ms. DeWester that she needed to go to devotions to show support for Preferred's values.
. Ms. DeWester's took issue with Jackie Steuerwald's demands that
Ms. DeWester abide by her interpretation of religion and direct her subordinates
to
abide by Ms. Steuerwald's religious beliefs.
. Ms. Christian told Ms. DeWester that, as far as religious views were concerned, "it was Jackie Steuerwald's way or the highway."
. Ms. DeWester was expected to present religious memos and posters
in meetings. She did not support hanging religious posters in the workplace
and
she complained to Diane Christian [*189] about the
religious bulletins and posters in the work place.
. Ms. Steuerwald told Ms. DeWester that she was "walking in the
flesh," a common expression at Preferred. Towards the end of Diana DeWester's
employment, Ms. Steuerwald discussed, in her presence, a vision
she had of the Antichrist.
. Ms. DeWester also took exception to the Values Definitions attached
to Preferred's Values Statement, because she did not think the Bible verses
belonged in the workplace.
. Ms. DeWester was directed to support Ms. Steuerwald's religious
beliefs on several occasions. She was directed to go to devotions. She
was instructed
that, when she hired employees, she was to make sure that they
were Christians.
. Ms. DeWester was instructed to be present at an in-service values presentation to make the introduction and to show her support.
. At two meetings Ms. DeWester attended, Darlene Wright and Jackie Steuerwald talked about speaking in tongues.
. On more than one occasion, Diana DeWester heard Jackie Steuerwald
say in a meeting that she was looking at her managers and thought that
some of
them were not where she thought they should be spiritually. On
one such occasion, Ms. Steuerwald gave Diana [*190] DeWester
books on religious
topics.
. Occasionally, Pastor Johnny Garrison would come to Ms. DeWester's office to ask her if she was attending the Holy Spirit videos.
. As a branch manager, Ms. DeWester was directed to tell applicants
during the interview that Preferred is a Christian organization and to
direct all
applicants to talk with Pastor Johnny Garrison after she interviewed
them.
. In a meeting that Ms. DeWester attended, Ms. Steuerwald explained
that Jesus was the center of all of Preferred's operations and that all
of the
employees were spokes on the wheel.
. Every time Ms. DeWester had an extended conversation with Jackie
Steuerwald (except for the last), Ms. Steuerwald would ask: "Have you been
saved?"
or "Have you found Jesus?" or words to that effect. On each occasion,
Ms. DeWester wold respond: "Jackie, I am a Christian."
. Ms. DeWester once said in a meeting at which Ms. Steuerwald
was attending that Preferred was a business, not a church. Diane Christian
phoned Ms.
DeWester the next day and told her that she was in serious trouble
with Ms. Steuerwald over the remark and that Ms. DeWester had to understand
that
Ms. Steuerwald considered Preferred to be a mission. [*191]
Ms. DeWester testified that one did not disagree with Ms. Steuerwald about
religion for fear
of losing one's job.
Ms. DeWester subjectively experienced these religious activities
as unwelcome, offensive and abusive. She always felt that her employment
was
threatened when she did not attend a religious function during
work hours. She avoided religious observances during work by staying in
her office and
appearing to be very busy. She opposed giving "The Transfiguration
of Preferred" to prospective employees because she did not believe that
"God's real
anxious to make Jackie Steuerwald a rich woman."
We also find that a reasonable employee similarly-situated to
Ms. DeWester could have found the work atmosphere to be pervaded by religious
expressions and practices that were demeaning, intimidating,
hostile or abusive. We cannot say as a matter of law that no reasonable
juror could find the
atmosphere in which Ms. DeWester worked was hostile and abusive.
Accordingly, there is a genuine issue of material fact as to the hostile
environment
claim brought by the EEOC on behalf of Ms. DeWester.
f. Mary Mulder
Mary Mulder has attended Catholic churches with her husband and
children. [*192] She considers herself a Christian, which she
understands to mean
that she was to be kind to people and honest with them. She believes
that being "saved" means that you believe in God and are kind to other
people, you
try to live an honest life and take care of your family.
. Jackie Steuerwald told Ms. Mulder that, to become "saved," Ms.
Mulder needed to learn how to preach the word of God to other people, to
openly talk
about it and to give away her sinful way of life. These views
do not square with Ms. Mulder's.
. Before her first day of work, Ms. Mulder met Chaplain Johnny
Garrison, who told her that Preferred offered a devotional time, and that
she was welcome
to attend. At times, when Ms. Mulder did not attend devotions,
her supervisor, Becky Selm would ask "Why didn't you go into devotions
today?" She also
observed: "Well, Jackie likes for everybody to attend."
. On one occasion, Ms. Mulder attended a meeting presented by
Mike Pyatt where he discussed the need for the people in the branch to
work together
and told those in attendance that they were experiencing strife
because they weren't reaching out to each other and being like Godly children
should be
and that if they centered [*193] their lives around
Jesus, everything would flow.
. Mr. Pyatt also told those in attendance "If you're not walking in the right path of God, you need to look for a new job, this is not the place for you."
. Becky Selm told employees that employees were expected to be at Mr. Pyatt's meeting.
. Ms. Steuerwald brought a video entitled "The Holy Spirit" to
the Indianapolis branch and employees were expected to attend. Ms. Selm
told Ms. Mulder
that she did not need to see the tape because she was Catholic
and would not understand it. Ms. Mulder was shocked by Ms. Selm's comment.
. At the time of the showing, Ms. Steuerwald talked about how
she had found the Holy Spirit and she also wanted her employees to experience
the Holy
Spirit because it would change their lives like it had changed
hers.
. Ms. Selm cautioned Ms. Mulder not to tell Ms. Steuerwald that
she was involved with the Catholic church because, according to Ms. Selm,
Ms. Steuerwald
did not like Catholics. Ms. Selm observed that she herself used
to be involved with the Catholic Church, but that after she met Jackie,
Jackie was able to
bring religion into her life the way it should be. She said she
was no longer involved with [*194] the Catholic Church, and
she was heavily involved with
another church.
. Ms. Steuerwald told Ms. Mulder that she was very open about
her religion because she wanted others to have the glory of God in their
lives too. Ms.
Mulder responded that she was private about her religion and
did not like preaching to other people. Ms. Steuerwald replied that, because
she was not
charismatic about religion, she could not be walking in the right
path of God. She told Ms. Mulder that she could not be a saved Christian.
. In Ms. Mulder's presence, Becky Selm said, "Oh, you know those Catholics, they're just heathens."
. Ms. Selm told Ms. Mulder that Diana DeWester always fought corporate on religious issues, and they did not like that.
. Becky Selm often told Ms. Mulder what a good Christian she was
because she participated in church all the time, believed in Jesus Christ
and believed in
the Bible.
. Ms. Selm would ask Ms. Mulder daily for her list of problems,
and when Ms. Mulder would show them to her, Ms. Selm would say "Let's pray
about them."
Ms. Selm suggested that Ms. Mulder pray over her paperwork.
. After Ms. Selm and another employee took Ms. Mulder's paperwork
into another room and [*195] prayed over it, Ms. Selm told
Ms. Mulder that the only
reason the work got done was because they had prayed over it.
When Ms. Mulder asked Ms. Selm not to pray over her work, Ms. Selm told
her that was a
common practice for them and that they would continue to do it.
. During her comprehensive orientation, Mike Pyatt asked Ms. Mulder
how she was enjoying working for Preferred. Ms. Mulder stated that she
enjoyed the
work but was uncomfortable with all of the religious aspects,
such as praying over paper work. Mr. Pyatt responded, "You're the hardest
kind to break."
Def. Facts P 619-621.
. At the comprehensive orientation attended by Ms. Mulder, each
speaker explained his or her role in the company and also shared some personal
information about their spiritual journey. After listening to
all of the religious experiences, Ms. Mulder started to feel that, if she
didn't believe the way they
did, then she would be considered different or an outcast.
. Ms. Mulder also attended some of the presentations made by Nellie
Foster. She found them offensive -- not because the content was contrary
to her
religious beliefs, but because someone stood in front of her
telling her that religion was [*196] necessary in the workplace.
She also took offense on
one occasion when she saw the Lordship Ladder posted for one
day in the women's restroom.
. Once, one of Ms. Mulder's co-workers made a reference to the
Masonic temple being a cult after Ms. Mulder mentioned that her father
belonged to the
Masons. Several employees said: "Didn't you know that the Masonic
Temple is a cult?" And began snickering and laughing and whispering in
each other's
ears. Ms. Mulder was humiliated by this experience.
. Ms. Mulder attended a meeting at which Jackie Steuerwald called those in attendance sinners.
. After Rebecca Lambert left Preferred, Becky Selm came into Ms.
Mulder's office and said "I think we need to pray in this office to get
rid of the evil
demons."
. After Diana DeWester left, Ms. Selm told Ms. Mulder that she
and Ms. Steuerwald had prayed over Diana DeWester's office to rid it of
evil demons. At
some point in her employment, Ms. Mulder began to get sick to
her stomach at the sight of religious memos. She became uncomfortable just
seeing items
with Bible verses on them in the reception area.
. When Ms. Steuerwald talked about religion in meetings in Indianapolis,
she would say: "If you [*197] can't speak up and talk about
God and talk his
preachings and to walk his walk, you are not a good Christian
and you need to get your life on the right path."
. When Ms. Mulder attempted to raise concerns about office matters,
the response focused on religion rather than a practical solution to the
problem. The
religious response, in turn, increased her frustrations.
. Ms. Mulder perceived the morale in the Indianapolis office to
be low. She believed that many employees were upset and anxious about losing
their jobs if
they didn't agree the corporate stance on religion.
. After Diana DeWester resigned and Preferred was in search of
her successor in May 1996, Ms. Steuerwald held a meeting with Ms. Mulder,
Angie
Weiskittel, Amy Butler, Cathy Robinson and Carol Fuzzell to address
the reasons why some of the departments were not running smoothly. Ms.
Steuerwald
opened the meeting by reading from her Bible and said that the
office was not running smoothly because the employees were not on the right
path of God
and were all sinners. She told the group: "You realize that you're
all sinners, that you all play a part in this, of being a sinner. Each
and every one of you is
a sinner." Ms. [*198] Steuerwald asked Angie Weiskittel,
"Do you believe that you're a sinner?" She replied: "Well, I guess I am."
Ms. Steuerwald looked
over at Amy Butler and asked "Do you believe that you're a sinner?"
Ms. Butler hung her head and started to cry and said: "Yes, I'm a sinner."
Ms.
Steuerwald concluded: "That's right. Because each and every one
of you is a sinner." She added: "Until you people release your vanity and
quit becoming
vain people, you're always going to come up with these problems."
Kathy Robinson asked Ms. Steuerwald "What do you mean by being
vain?" Ms. Steuerwald replied: "When you cause problems, when you think
that you're
the only important person in this office, that everybody else
is wrong, that means that you're a vain person." Ms. Robinson queried:
"How can you tell us
this is a vain act when we're just trying to make our jobs run
more smoothly?" Ms. Steuerwald got up from her seat, put her hands on the
table, leaned
forward to about six inches from Ms. Robinson's face and said:
"You are a vain sinner." Ms. Steuerwald told Ms. Robinson to repeat after
her: "I will pray to
God and ask him to keep me from thinking in vain ways." Ms. Robinson
repeated the statement. [*199] Ms. Robinson and others began
crying. Ms. Mulder
was crying because it upset her to see her fellow workers so
upset and because she felt that Ms. Steuerwald had reduced her to "slime,"
as if Ms. Mulder
were a horrible person because she wasn't practicing Jackie Steuerwald's
beliefs.
. Ms. Steuerwald gave the attendees at the May 1996 meeting examples
of how they were sinners. She said that, instead of trying to deal with
each other
in a religious fashion, looking toward God for answers, they
were going to supervisors. She told them that it was just a fact that they
were being bad to
each other, being sinners, and being vain people. When Ms. Steuerwald
said things like "You're all sinners," she would look at each person in
attendance.
Some of the "You're all sinners" comments were directed at Mary
Mulder.
. During the May meeting, Ms. Steuerwald asked Ms. Mulder whether
she prayed over her work. Ms. Mulder responded that she was not raised
to pray for
material gain and that she thought it was selfish to do so. Ms.
Steuerwald replied: "Your kind are the hardest to break."
. During the May 1996 meeting, Becky Selm started to argue with
another employee. During the argument, Ms. Selm [*200] burst
into tears and said: "I'm
a sinner, I'm a sinner, oh, God, please forgive me, I'm a sinner."
Ms. Steuerwald commented that "Becky is the only one in this room who is
on the right
path to being a good Christian." . On May 22, 1996, Ms. Steuerwald
sent out a memo entitled "Your New Walk" to Ms. Mulder among others. Ms.
Steuerwald intended the memo to teach the recipients that, instead
of reasoning and coming up with wrong conclusions, it would be better to
pray about
those things. The substance of "Your New Walk" read:
I thank my God every time I remember
you. In all my prayers for all of you, I always pray with joy because of
your partnership with me in living
out the gospel.
In my daily prayer journal this week,
I had these 2 lessons and felt I should share them with you. The Divine
Reasonings of Faith and the
explanation of it will encourage you
in your walk of laying down your carnal weapons. The admonition is to "Seek
ye first the kingdom of God,
and His righteousness, all these things
shall be added unto you." Matthew 6:33
Please feel free to share with me your
trials and victories. I'm believing for you and in you!
. Two weeks before Ms. Mulder [*201] resigned, Kristi
Fenter, the acting branch manager, referred to those in attendance at a
staff meeting as sinners
because they had continued to argue over paperwork and other
office matters. At that point, Ms. Mulder began crying, could not stop,
and had to leave
the room. Def. Facts P 648, 649.
Ms. Mulder testified that she experienced these religious practices
as subjectively offensive and abusive. She found herself growing depressed.
She would
go home in tears at night because of the constant emphasis on
praying and religion at work. She testified that she resigned her employment
because she
could no longer bear the accumulated weight of the religious
practices in the work place. In her resignation letter, Ms. Mulder wrote
to Ms. Steuerwald
that the burden she could no longer bear was not the stress of
the job but Ms. Steuerwald's religious convictions.
We also find that a reasonable employee in Ms. Mulder's position
could have experienced these religious practices as intimidating, demeaning,
hostile or
abusive. Accordingly, we cannot say as a matter of law that no
juror could reasonably conclude that the atmosphere was laden with religious
expressions
and practices that made [*202] work life unbearable.
It follows that there is a genuine issue of material fact as to whether
the work environment
experienced by Ms. Mulder was hostile in violation of Title VII.
We note, once again, that we do not find that a jury must find
that the work place was hostile for these employees. We merely hold that
we cannot
conclude as a matter of law that it wasn't and that only a jury
can make that factual determination.
4. A Note On Coercion.
Preferred argues throughout its brief on summary judgment that
employees were informed before they joined Preferred that it was a Christian
business,
that attendance at devotions, other prayers, religious videos,
and the like were not mandatory, and that employees were free to throw
away the
religious materials they received in their mailboxes instead
of reading them. In other words, Preferred argues that employees participated
in religious
practices (if at all) voluntarily.
Preferred thus seeks to distinguish this case from EEOC v. Townley
Engineering & Manufacturing Co., 859 F.2d 610 (9th Cir. 1988), cert.
denied, 489 U.S.
1077, 109 S. Ct. 1527, 103 L. Ed. 2d 832 (1989), a religious
discrimination [*203] case (cited by both parties) whose facts
are very similar to those here.
Townley, however, was a failure-to-accommodate case and not a
disparate treatment case; the cases thus involve different legal theories
and are
governed by different analyses. For those and other reasons,
its application here is very limited. n23 For our purposes, a decisive
fact in the Ninth Circuit's
decision was that the employer's devotional services were mandatory.
Indeed, the company handbook expressly announced that the services were
mandatory and the complaining party, an avowed atheist, signed
an agreement adopting that policy as a condition of employment. Id. at
611-612.
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- - - - - - - - -
n23 The legal analyses differ under Title VII's religion provision
just as failure-to-accommodate analysis differs from disparate treatment
analysis under the
Americans with Disabilities Act. Venters, 123 F.3d at 972 (religion);
Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281, 1283 (7th Cir.
1996)
(ADA). The Townley decision turned on the question of whether
the employer could accommodate Ms. Pelvas's atheism (by excusing him from
the services)
without "undue hardship" and the question of whether Townley
Engineering was a "religious organization" within the meaning of Title
VII's exemption.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - -
- - - - - - - - - [*204]
We are not called upon to determine whether a hostile environment
claim may survive summary judgment where the atmosphere of religiosity
is truly
"voluntary." n24 To the extent that Preferred seeks to distinguish
this case from Townley by arguing that its religious practices were voluntary
rather than
mandatory, however, we find that a jury could reasonably conclude
from the evidence that religion at Preferred was not a voluntary practice.
While there
was no written policy expressly requiring employees to attend
devotions or other prayers or to attend religious videos or the anointing
of buildings or
offices, the EEOC has presented sufficient evidence to raise
a reasonable inference that Ms. Steuerwald's "expectation" of attendance
and her
"expectation" of other behaviors amounted to a form of coercion
-- more subtle, perhaps, than an express policy on pain of discharge, but
no less coercive.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - -
- - - - - - - - -
n24 The Townley court hinted that even where a religious practice
was overwhelmingly approved by the employees, Title VII might well be implicated:
"The
goal of Title VII is served by protecting only those who have
religious objections to the services. To protect those who do not have
such objections is not
necessary." 859 F.2d at 621.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - -
- - - - - - - - - [*205]
To cite a few examples among many, employees were required to
sign the values statement as a condition of employment. The handwritten
document
"Expectations of Branch Manager" included that devotions are
held weekly at a scheduled time. Pl. Add. Facts P 1474. Ann Parker testified
that, as a
manager she was required to be a "role model," which meant, among
other things, that she was "expected" to attend devotions. Sondra Sievers
testified
that she believed she was expected to attend devotions and to
watch religious videos. Ellen Blice testified that she was offended that
Ms. Steuerwald
expected employees to conduct their lives in accordance with
Biblical quotations selected by Ms. Steuerwald. Employees were expected
to have a "prayer
partner" and Ms. Stute was subjected to Ms. Jennings' exasperation
at not having selected one. Such "expectations" rise to the level of "requirements"
when employees are exposed to consequences as a result of not
meeting them.
Traditional labor law has long held that even subtle forms of
coerced behavior and intimidation are as effective as mandatory controls
in enforcing an
employer's will. E.g., N.L.R.B. v. Regional Home Care Services,
Inc., 237 F.3d 62, 68-69 (1st Cir. 2001) [*206] (addressing
"subtle question of whether the
conduct and speech of the supervisor amounted to implicit threats
or coercion."). Also see Motley v. Tractor Supply Co., 32 F. Supp. 2d 1026,
1054-1055
(S.D.Ind., 1998), a race discrimination case, in which Judge
Tinder held that a supervisor's driving to the plaintiff's workplace and
watching him, without
saying anything, until the plaintiff noticed him, "constitutes
a subtle form of supervisory intimidation." Such holdings square with common
sense.
Here, in addition, the penalties for not conforming may have included
legally cognizable adverse employment actions such as demotion and discharge
(which we address below). Additionally, "expectation" tends to
metamorphose into "requirement" when Ms. Steuerwald or other management
personnel
keep track of who attends devotions and who doesn't and inquires
into why an employee did not attend. Moreover, the EEOC has presented employee
testimony to the effect that, by not conforming their behavior
to the "expected" standard, they experienced ostracism or marginalization,
the sense of
having been cast out or excluded from the group on the basis
of their non-conforming religious beliefs. [*207] They also
testified to intimidation in the
form of Ms. Steuerwald's wrath expressed as accusations of employees'
sinfulness or walking in the flesh, or being a wounded spirit, or being
proud or
vain, assertions of the employee's need for atonement or redemption,
ridicule of the employee's religious views, subjection to unwanted religious
literature and videos, and subjection to Ms. Foster's Leader
in the Making program. All of this may have been highly beneficial to the
employees, as Ms.
Steuerwald contends, but voluntary it was not. Or so a jury could
reasonably conclude.
In sum, as the Ninth Circuit observed in Townley, "Protecting
an employee's right to be free from forced observance of the religion of
his employer is at the
heart of Title VII's prohibition against religious discrimination.
859 F.2d at 620-621.
5. Vicarious Liability versus Negligence.
Since the Supreme Court's clarifying decisions in 1998, analysis
of employer liability for hostile environment harassment has depended upon
whether the
harassment was committed by a supervisor or by a co-worker and
whether or not the harassment culminated in a tangible employment action.
Burlington
Industries v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 141 L.
Ed. 2d 633 (1998) [*208] Faragher v. City of Boca Raton, 524
U.S. 775, 118 S. Ct. 2275, 141 L.
Ed. 2d 662 (1998). Under certain circumstances -- including where
the harassment occurs at the hands of a co-employee -- the employer is
subject to a
negligence standard. Under that standard, the employer is liable
where it knows or reasonably should know of co-worker harassment and, despite
knowing, fails to take prompt remedial action. Berry v. Delta
Airlines, 260 F.3d 803, 811 (7th Cir. 2001); Savino v. C.P. Hall Co., 199
F.3d 925, 933-934 (7th
Cir. 1999).
An employer is vicariously liable for harassment under two circumstances.
First, where the harasser is a supervisor (or a successively higher manager
in
the victim's chain of command) and the harassment results in
a tangible job detriment. In this circumstance, the employer is not entitled
to an affirmative
defense. Or, second, where the harasser is a supervisor (or successively
higher employee) and no tangible job detriment occurs. In this event, however,
the employer is entitled to an affirmative defense consisting
of two showings: that the employer exercised reasonable care to prevent
or correct [*209]
the harassment and that the employee failed to take reasonable
steps to avail herself of opportunities to remedy the harassment. The Supreme
Court
explained the standard in Ellerth:
An employer is subject to vicarious
liability to a victimized employee for an actionable hostile environment
created by a supervisor with
immediate (or successively higher) authority
over the employee. When no tangible employment action is taken, a defending
employer may
raise an affirmative defense to liability
or damages, subject to proof by a preponderance of the evidence, see Fed.
Rule Civ. Proc. 8(c). The
defense comprises two necessary elements:
(a) that the employer exercised reasonable care to prevent and correct
promptly any sexually
harassing behavior, and (b) that the
plaintiff employee unreasonably failed to take advantage of any preventive
or corrective opportunities
provided by the employer or to avoid
harm otherwise. . . . No affirmative defense is available, however, when
the supervisor's harassment
culminates in a tangible employment
action, such as discharge, demotion, or undesirable reassignment.
Gawley v. Indiana University, 276 F.3d 301, 310, 2001 WL 1662495
[*210] (7th Cir. 2001), quoting, Ellerth, 524 U.S. at 765, 118 S.
Ct. 2257.
This case involves instances of both tangible job detriment (alleged
discharge, constructive discharge, failure to promote, and demotion) and
instances
where job detriment is absent. But even assuming that no adverse
employment actions occurred and that Preferred is thus entitled to assert
the
affirmative defense, it may prevail on that defense only by showing
by a preponderance of the evidence both that it "exercised reasonable care
to prevent
and correct promptly any . . . harassing behavior, and that the
plaintiff employee[s] unreasonably failed to take advantage of any preventive
or corrective
opportunities provided by the employer or to avoid harm otherwise."
See, e.g., Savino v. C.P. Hall Co., 199 F.3d 925, 932 (7th Cir. 1999);
Thus, even assuming that Preferred is entitled to the affirmative
defense, it has not sustained its burden. It has not shown that it took
care to prevent
religious harassment or correct it promptly upon discovery; and
it has not shown that any of the complaining parties unreasonably failed
to take
advantage of any opportunity [*211] Preferred provided
or otherwise to avoid harm.
In numerous recent harassment cases, employers have successfully
argued that they complied with the requirements of the affirmative defense
by
providing employees with an anti-harassment policy containing
a mechanism for complaining about harassment and by showing that the plaintiff
failed to
avail herself of that complaint mechanism. Haugerud, 259 F.3d
at 698; Savino, 199 F.3d at 932; Johnson v. West, 218 F.3d 725, 731 (7th
Cir. 2000); Shaw v.
AutoZone, Inc., 180 F.3d 806, 812-813 (7th Cir. 1999), cert denied,
528 U.S. 1076, 120 S. Ct. 790, 145 L. Ed. 2d 666 (2000).
Here, however, Preferred admits that no such policy and no such
mechanism existed. n25 Moreover, the EEOC has presented evidence to show
that when
management personnel were advised that various religious practices
were offensive to various employees, Preferred management sought to "resolve"
the complaints through the very religious means that gave rise
to the complaints -- for example, by requiring the employee to engage in
Leadership in the
Making training, which contained a significant [*212]
religious component.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - -
- - - - - - - - -
n25 Preferred had a sexual harassment policy. It has pointed to
no procedure (formal or informal) pursuant to which an employee could complain
meaningfully about harassment based on religion. As we discuss
in the context of the constructive discharge claims, moreover, the EEOC's
evidence
indicates that any such complaint would have proven futile both
because Preferred was incapable of viewing its religious principles and
practices as a form
of "harassment" and because those who engaged in the harassment
included Jackie Steuerwald at the apex of her organization. In sum, any
such
complaint would have been futile.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - -
- - - - - - - - -
Preferred's Director of Human Resources, Mike Pyatt, was responsible
for all training on personnel subjects. From 1993 through 1998, Mr. Pyatt
was a
member of the executive management team. Pl. Add. Facts PP 681-682.
Mr. Pyatt acknowledges that he had no training on religious harassment.
Pl. Add.
Fact, P 847. Nor did Mr. Pyatt conduct any training on religious
harassment or religious [*213] discrimination for Preferred
employees. Nor did the
manual that the directors of personnel used to train branch managers
contain anything on religious harassment. Pl. Add. Fact, PP 845, 846. Terry
Jennings, branch manager of the Lawrenceville branch and then
Southern Area Administrator, received no training on religious harassment
or religious
discrimination other than reading an article about religious
accommodation. Neither did Ann Parker, former Southern Area Administrator.
Neither did Sue
Klein, branch manager of the Vincennes branch. Wanda Wallace,
acting branch manger of the Evansville branch and then branch manager of
the Evansville
branch, acknowledged that she could not recall receiving any
training on a specific policy to be used if employees had a complaint of
religious
discrimination or religious harassment. Neither did Carol Smith,
HHA Supervisor of the Vincennes branch. Pl. Add. Facts PP 848-851, 855.
Nellie Foster,
trainer and developer for Preferred, had no training on religious
discrimination or religious harassment. Neither did Kathy Robinson, HHA
Supervisor of the
Indianapolis branch, have any training on how to deal with a
complaint of religious discrimination or [*214] religious harassment.
Neither did Becky
Selm. Nor did Karen Lemons, RN Supervisor of the Vincennes branch,
receive training on religious discrimination. Pl. Add. Facts PP 852-856.
n26
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - -
- - - - - - - - -
n26 Preferred objected to each of these statements involving the
lack of training on religious discrimination and harassment on the ground
that they are
"immaterial" to "the matters raised and not raised on Preferred's
motion for summary judgment." In view of the case law just cited concerning
vicarious
liability, Preferred's objections are overruled.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - -
- - - - - - - - -
In sum, there is more than enough evidence to raise a reasonable
inference that Preferred provided no complaint procedure for employees
to register
concerns about religious harassment or discrimination. Nor did
it take other reasonable steps to investigate and prevent discrimination.
To the contrary,
the EEOC has presented evidence showing that Preferred management
-- all the way to Jackie Steuerwald at the top of the corporate hierarchy
--
employed religious practices to remedy the [*215]
complaints of excessive religious practices.
For one example, on January 31, 1996, attorney L. Edward Cummings,
representing Sondra Sievers, wrote a letter to Ms. Steuerwald in which
he conveyed
Ms. Sievers' discomfort with Preferred's religious practices.
He wrote, in part:
There was no secret . . . that [Ms.
Sievers] was a practicing Catholic and was not comfortable with some or
even much of the religious
materials and indoctrination which was
provided to your employees. When you had a discussion with her critical
of her performance, the
materials provided her were clearly
religious telling her to confess and repent. Subsequently, she was placed
in a program, Leader in the
Making, in which she sincerely attempted
to perform to your and your company's expectations so that she could return
to her position as
manager. As you know, the entire focus
of the "Leader in the Making" was religious and her success or lack of
success in the program related
to how she characterized her relationship
with Jesus Christ. She and Ms. Foster had a particular discussion involving
something called the
Lordship Ladder which was not to Ms.
Foster's satisfaction and the following day Ms. Sievers [*216]
learned that she was no longer going to
be returned to her position as branch
manager.
Pl. Add. Facts P 863.
Ms. Steuerwald and Mr. Pyatt received copies of Mr. Cummings'
letter. Pl. Add. Facts P 865. Ms. Steuerwald testified that she did not
perceive the letter as
a complaint of religious discrimination. Pl. Add. Facts P 868.
Mr. Pyatt did not confer about the letter with anyone other than Ms. Steuerwald,
Nellie Foster,
and Preferred's counsel. In other words, faced with what would
reasonably be viewed as a complaint of religious discrimination or harassment,
Preferred
management ignored it. Pl. Add. Facts P 867.
In view of Preferred's handling of such complaints, we cannot
find as a matter of law that Preferred has satisfied its burden under its
affirmative defense to
"exercise reasonable care to prevent and correct promptly any
. . . harassing behavior." Ellerth, 524 U.S. at 765, 118 S. Ct. 2257. It
follows that Preferred
is vicariously liable for that harassment.
Notwithstanding our finding that Preferred is vicariously liable,
we note that it would not be entitled to summary judgment even if we applied
the lower
negligence standard. An employer is liable [*217]
for hostile environment harassment under the negligence standard when it
knows or should know of
harassment and fails to take prompt remedial action -- action
that is reasonably calculated to remedy the harassment and prevent its
recurrence. Berry v.
Delta Airlines, 260 F.3d 803, 811 (7th Cir. 2001); McKenzie v.
Illinois Dept. of Transp., 92 F.3d 473, 480 (7th Cir. 1996).
A jury could reasonably infer from the evidence we have already
addressed that Preferred disregarded complaints of religious discrimination
and
harassment and took no remedial measures. It follows that a jury
could reasonably conclude that Preferred was negligent with respect to
harassment.
6. Constructive Discharge.
The same evidence that supports the EEOC's claims of harassment
is also sufficient to raise a reasonable inference that employees Sherry
Stute, Suzanne
Elder, Diana DeWester, and Mary Mulder were constructively discharged
from employment. In other words, for purposes of summary judgment we cannot
say as a matter of law that it would have been unreasonable for
them, or for similarly-situated employees of ordinary religious sensibility,
to have felt
compelled to [*218] resign under the terms and conditions
of employment that prevailed at Preferred.
To establish a claim of constructive discharge, a plaintiff must
present evidence sufficient to raise an inference that her working conditions
became so
intolerable that a reasonable person under similar circumstances
would have felt compelled to resign. The reason for the resignation must,
of course, be
that the employer's misconduct was in violation of a Title VII
protected criterion, here religion. Grube v. Lau Industries, Inc., 257
F.3d 723, 727 (7th Cir.
2001). Tutman v. WBBM-TV, Inc./CBS, Inc., 209 F.3d 1044, 1050
(7th Cir. 2000); Lindale v. Tokheim Corp., 145 F.3d 953, 955 (7th Cir.
1998).
Where, as here, the constructive discharge arises from an alleged
hostile environment, the Seventh Circuit requires a showing of "aggravated"
circumstances, factors that go beyond the underlying harassment.
Hertzberg v. SRAM Corp., 261 F.3d 651, 2001 WL 869357 (7th Cir. 2001),
p. *7; Rodgers
v. Western-Southern Life Ins. Co., 12 F.3d 668, 677 (7th Cir.
1993). Additionally, absent extraordinary conditions, "a complaining employee
[*219] is
expected to remain on the job while seeking redress." Grube,
257 F.3d at 728. The Seventh Circuit agreed with the proposition that "an
employee who
quits without giving his employer a reasonable chance to work
out a problem has not been constructively discharged." Id., quoting Yearous
v. Niobrara
County Mem'l Hosp., 128 F.3d 1351, 1356 (10th Cir. 1997).
The evidence here supports these higher standards of "aggravated"
circumstances and "extraordinary conditions." We focus on only two points
in
particular from the detailed description of hostile working conditions
already recited. First, in addition to the pervasive, unrelenting atmosphere
of
religiosity in the work place, the named employees were exposed
to ridicule and condemnation because their beliefs did not accord with
the prevailing
orthodoxy. A jury could reasonably conclude that Ms. Steuerwald's
and Ms. Jennings' denigrating references to Catholicism -- the religion
shared by all four
of the parties claiming constructive discharge -- created conditions
that aggravated the already offensive atmosphere of religiosity.
Second, Preferred management was oblivious to the very idea that
their [*220] religious practices in the work place could be
construed as discriminatory,
offensive, hostile, intimidating, abusive, or even unwelcome.
As a result, Preferred management tended to view a complaint of discrimination
or
harassment as symptomatic of an underlying deficiency in the
employee's spirituality. As Preferred management saw it, the "remedy" for
complaints of too
much religion was more religion. An employee complaining of religious
harassment was thus subjected to improvement programs which were
substantially religious in nature, or videos on the Holy Spirit,
or literature on healing a broken spirit, or devotions and prayer.
The whole point of requiring an employee to remain employed and
try to work out problems before resigning is -- like the exhaustion of
administrative
remedies -- a proximate means to solve a problem before the employee
resorts to the ultimate means, resignation and a lawsuit. See, e.g., Ulichny
v.
Merton Comm. Sch. Dist., 249 F.3d 686, 704 n. 16 (7th Cir.2001);
Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1015 (7th Cir. 1997). Here,
proximate
resolution was futile. As noted earlier, there was no formal
mechanism [*221] at Preferred for complaints of religious discrimination
or harassment and
Preferred management was apparently incapable of recognizing
that some employees found the religious practices offensive, intimidating,
and abusive.
When the CEO of a corporation receives a letter from a lawyer
which says that his client, a practicing Catholic, has been subjected to
religious
"indoctrination," and the CEO says that she did not interpret
the letter as a complaint of religious discrimination, meaningful communication
on the topic
would appear to be impossible. See Pl. Add. Facts PP 863, 865.
For these reasons, a jury could reasonably conclude from the evidence
that employees Stute, Elder, Mulder and DeWester were constructively discharged.
D. Individual Disparate Treatment Claims.
1. Legal Analysis.
The EEOC alleges individual disparate treatment claims on behalf
of four employees. It alleges that Preferred demoted Sondra Sievers on
the basis of
religion and then unlawfully discharged her on the basis of religion
or in retaliation for having complained about religious discrimination.
It alleges that
Preferred disciplined and then discharged Ellen Blice on the
basis of religion. [*222] It alleges that Preferred refused
to promote Sherry Stute on the
basis of religion. And it alleges that Preferred refused to hire
Teresa Raloff on the basis of religion. n27 We find the evidence sufficient
to support all of
these claims, except for Ellen Blice's claim of discriminatory
discipline, so that a grant of summary judgment would be inappropriate
as to all but that claim.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - -
- - - - - - - - -
n27 We have already addressed the claim on behalf of Teresa Raloff.
See subsection B-2.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - -
- - - - - - - - -
All of the individual disparate treatment claims allege that Preferred
took adverse employment actions against individual employees on the basis
of
religion. These claims are governed by the same disparate treatment
proof schemes that govern other forms of employment discrimination. The
EEOC may
employ the traditional burden-shifting analysis as modified by
the Seventh Circuit for purposes of religious discrimination in Sattar
v. Motorola, Inc., 138
F.3d 1164, 1169-1170 (7th Cir. 1998). Or it may seek to create
a "convincing mosaic" [*223] of discrimination as outlined
in Troupe v. May Dept. Stores Co.,
20 F.3d 734, 736 (7th Cir. 1994); Sattar, 138 F.3d at 1170 (7th
Cir. 1998); Robin v. ESPO Engineering Corp., 200 F.3d 1081, 1088-1089 (7th
Cir. 2000).
In Sattar, the Seventh Circuit adopted the Tenth Circuit's method of showing religious discrimination as follows:
In order to establish a prima facie
case in actions where the plaintiff claims that he was discriminated against
because he did not share certain
religious beliefs held by his supervisors,
we hold that the plaintiff must show (1) that he was subjected to some
adverse employment action;
(2) that, at the time the employment
action was taken, the employee's job performance was satisfactory; and
(3) some additional evidence to
support the inference that the employment
actions were taken because of a discriminatory motive based upon the employee's
failure to hold
or follow his or her employer's religious
beliefs.
138 F.3d at 1169-1170, quoting Shapolia v. Los Alamos Nat'l Laboratory,
992 F.2d 1033, 1038 (10th Cir. 1993). The question, in sum, "is whether
the plaintiff
[*224] has established a logical reason to believe that
the decision [to terminate her] rests on a legally forbidden ground." Venters,
123 F.3d at 972,
quoting Carson v. Bethlehem Steel Corp., 82 F.3d 157, 158-59
(7th Cir. 1996) (per curiam). See Maldonado v. U.S. Bank, 186 F.3d 759,
763-764 (7th Cir.
1999).
Before embarking on our analysis of the individual claims, we
note a breathtaking inconsistency at the heart of Preferred's motion for
summary judgment.
Jackie Steuerwald, Preferred's CEO, guiding force, and principal
decision maker, identifies herself as a born again Christian whose mission
it is to bring her
religious message to the world, including to her employees in
the workplace. In pursuit of that mission, she created a work environment
that is, as we
have described it at considerable length, frankly and pervasively
religious. Her aim is nowhere clearer than in her deposition testimony.
In answer to the
question whether religion is appropriate in the work place, she
said: "If you're a person of faith, it can't be separated." She added:
"Well, in Him I live and
breathe and have my being, and I don't leave my faith at the
[*225] door when I go to work. It's who I am. "It permeates my thinking,
my decisions."
Steuerwald Dep., p. 69 (emphasis added).
Now, on summary judgment, she asks us to find as a matter of law
that none of the employment decisions at issue here was based on religion.
In other
words, Ms. Steuerwald wants it both ways: she wants to operate
her for-profit enterprise openly according to her religious precepts; at
the same time,
she tells this court that there is no evidence from which reasonable
jurors might infer that her decisions were based on the very religious
values and
practices that she esteems and seeks to institutionalize.
We cannot simply ignore Ms. Steuerwald's principled acknowledgment
that she makes employment decisions on the same basis that she makes all
other
significant decisions: pursuant to her overriding religious mission.
We view her acknowledgment as direct evidence -- "evidence which in and
of itself
suggests" that someone with managerial authority was "animated
by an illegal employment criterion." Sheehan v. Donlen Corp., 173 F.3d
1039, 1045 (7th
Cir. 1999), quoting Venters, 123 F.3d at 972. As the Seventh
Circuit noted [*226] in Sheehan:
Even isolated comments may constitute
direct evidence of discrimination if they are "contemporaneous with the
discharge or causally related
to the discharge decision making process."
Kennedy v. Schoenberg, Fisher & Newman, Ltd., 140 F.3d 716, 723 (7th
Cir. 1998) (internal citations
omitted). Direct evidence typically
"relates to the motivation of the decisionmaker responsible for the contested
decision." Chiaramonte v.
Fashion Bed Group, Inc., 129 F.3d 391,
396 (7th Cir. 1997).
Id. 173 F.3d at 1045. Ms. Steuerwald's acknowledgment manifestly
relates to her motivation as the decision maker. Nor, in view of the evidence
already
discussed, can we dismiss her statement as "stray remarks" unrelated
to employment decisions. Instead, "remarks and other evidence that reflect
a
propensity by the decisionmaker [sic] to evaluate employees based
on illegal criteria will suffice as direct evidence of discrimination,
even short of an
admission of illegal motivation." Id. 173 F.3d at 1045, quoting
Venters, 123 F.3d at 973. Also see, Miller v. Borden, Inc., 168 F.3d 308,
312 (7th Cir. 1999);
Robinson v. PPG Indus., Inc., 23 F.3d 1159, 1164-65 & nn.
2-3 (7th Cir. 1994); [*227] Shager v. Upjohn Co., 913 F.2d
398, 402 (7th Cir. 1990).
In the following analyses of the individual disparate treatment
claims, we cut to the chase. If we apply the burden-shifting analysis as
set forth in Sattar,
we find that: (1) all three named complainants were subjected
to some adverse employment action; (2) at the time the employment action
was taken, all
three employees' job performances were satisfactory; and (3)
the EEOC has presented some additional evidence to support the inference
that the
employment actions were taken because of a discriminatory motive
based upon the employee's failure to hold or follow his or her employer's
religious
beliefs.
It follows that the only issue in each case is whether the EEOC
has produced legally sufficient evidence that Preferred's explanation of
the adverse actions
was pretextual. We arrive at the same issue if we apply the "convincing
mosaic" analysis: whether, through "a combination of direct and circumstantial
evidence" -- employer remarks revealing a propensity to act,
comments by supervisors, suspicious timing, inconsistent explanations or
behavior,
ambiguous statements oral or written, "bits and pieces from
[*228] which an inference of discriminatory intent might be drawn"
-- a convincing picture of
discrimination emerges. While none of the evidence may be conclusive
in itself, if, taken together, it composes "a convincing mosaic of discrimination,"
the
plaintiff may survive summary judgment. Hasham v. California
Board of Equalization, 200 F.3d 1035, (7th Cir. 2000), quoting Troupe v.
May Dept. Stores Co., 20
F.3d 734, 736 (7th Cir. 1994); AFSCME v. Doherty, 169 F.3d 1068,
1072-1073 (7th Cir. 1999); Robin, 200 F.3d at 1089; Wallace v. SMC Pneumatics,
Inc., 103
F.3d 1394, 1397 (7th Cir. 1997).
The evidence here creates such a convincing mosaic of discrimination.
In addition to Ms. Steuerwald's straightforward acknowledgement that she
makes
employment decisions on the basis of religious criteria, our
analysis also embraces the following undisputed facts, which constitute
tiles in the mosaic of
discrimination. First, Preferred requires its employees, as a
condition of employment, to sign a statement that includes the words: "I
have examined myself
and I agree that I have respected and actively supported Preferred's
[*229] Mission and Values during this past year of employment and
I agree to
respect and actively support Preferred's Mission and Values for
the coming year." Def. Facts, P 37; Pl. Add. Facts, P 824. Second, Preferred's
managers and
supervisors are instructed to use the company's values in disciplining
employees because values are considered a standard of performance. Def.
Facts, P
41. Third, Preferred actually evaluates employees' work performance
according to its Mission and Values Statement. Pl. Add. Facts, P 841. Fourth,
Preferred
has terminated employees for violating the values in the Mission
and Values Statement. Pl. Add. Facts, P 844. Fifth, Ms. Steuerwald said
that certain
religious ideas that were inconsistent with her own were "new
age" thinking and would not be tolerated at Preferred. Def. Facts P 468;
Pl. Add. Facts P
1345. In the context of the employment decisions at issue here,
these facts -- along with Ms. Steuerwald's admission that she makes employment
decisions on the basis of her religious values -- are enough
to make it impossible for us to rule as a matter of law that religion did
not play a role in the
company's adverse employment decisions against employees Sievers,
[*230] Blice, and Stute. They are enough to raise a doubt as to the
honesty of any
explanation that omits religion as a factor in these adverse
employment decisions.
2. Sondra Sievers: Demotion, Discharge, Retaliation.
The EEOC alleges that Sondra Sievers was the victim of religious
discrimination in that she was demoted from her position as branch manager
at
Vincennes and subsequently discharged because she failed to subscribe
to Jackie Steuerwald's religious preferences or that she was discharged
in
retaliation for having complained about religious discrimination.
Preferred argues that the demotion and discharge were justified by Ms.
Sievers'
inadequate work performance.
a. Ms. Sievers' Demotion
Ms. Steuerwald says that she demoted Ms. Sievers because of the
results of the employee survey -- "Your Opinion Counts" -- conducted by
Mike Pyatt in
October 1995. The details of the survey are recounted in our
statement of facts. Suffice to say here that the survey included the question:
"Are the
Company's Values actively promoted and modeled by supervisors
and managers?" And the request: "Please make any other comments or suggestions
that you believe would help Preferred be more effective
[*231] and be a better place to work and serve the Lord and our customers,"
providing space for
comments. Def. Facts P 108, 109; Pl. Add. Facts PP 962, 963.
As Mr. Pyatt distributed the survey to the Vincennes employees,
he said in response to an employee's question that management was looking
at all the
managers and "if they weren't where they thought they should
be, there would be changes made." Pl. Add. Facts PP 965, 966.
Mr. Pyatt distributed fifty-nine surveys; thirty-four employees
responded. Def. Facts P 123. Three of the employee responses included the
following
negative comments about Ms. Sievers: (1) "We have lost a lot
of very good, kind, caring office and field staff because of the branch
manager and it sure is
a shame;" (2) "Sondra does not respect our opinion. If we voice
our opinion she will usually disagree and then she will be angry"; (3)
"Sondra has us all
very unhappy with her lack of responsibility, caring or understanding";
(4) "Sondra does not like others, is either [sic] revengeful with field
staff, clients and
families"; and (5) "If a person isn't liked or if a person does
a job well, branch manager will do anything to create problems for the
person." Def. Facts
[*232] P 124, 125.
After receiving the results of the survey, on November 14, 1995,
Ms. Steuerwald and Mr. Pyatt went to Vincennes to inform Ms. Sievers of
her demotion.
Def. Facts P 127. Ms. Sievers met with Mr. Pyatt who addressed
the survey results and told Ms. Sievers that she would be removed from
her position,
placed in the Leader in the Making program with Nellie Foster,
and re-evaluated by December 31, 1995. He also gave Ms. Sievers three documents.
The
first outlined the "qualifications" of a Leader in the Making
as (1) having a teachable spirit, (2) having love for one another, (3)
honoring others above self;
(4) being approachable; (5) willing to ask others other for help
and advice; and (6) willing to invest in others. The second, entitled
"Confess--Repent--Turn," outlined what Ms. Sievers needed to
accomplish by December 31, including (1) restoring broken relationships
with Cherie Deem,
referral sources, patients and staff; (2) submitting to authority;
(3) regaining trust and respect of the staff and community; and (4) consistently
walking in
a blameless way to be above reproach. The third document was
called "Characteristics of Broken People Prepared for Revival." Def. Facts
[*233] PP
133-136. After the meeting, Mr. Pyatt told Ms. Sievers to take
three days off and pray and think about things. Def. Facts P 138 and Pl.
Resp.
Preferred argues that Ms. Steuerwald based her decision to demote
Ms. Sievers on the results of the survey. It argues that Ms. Steuerwald
"honestly
believed" that, based on the survey, Ms. Sievers' work performance
was deficient and that we have no authority to second-guess honestly held
business
decisions. But we do second-guess employment decisions in virtually
every employment discrimination case. We test employers' decisions to determine
whether they are, indeed, "honestly held" or whether a jury might
determine that they are pretextual. See, e,g, Stalter v. Wal-Mart Stores,
Inc., 195 F.3d
285, 289-290 (7th Cir. 1999); Dey v. Colt Construction &
Development Co., 28 F.3d 1446, 1460-61 (7th Cir. 1994). Preferred's argument
may well be true
and we would expect Preferred to present it to the jury. But
a jury would not be compelled to believe it. Venters, 123 F.3d at 973.
Accordingly, we cannot
conclusively determine its truth and grant summary judgment on
Ms. Sievers' demotion claim. [*234]
In addition to the reasons we outlined earlier explaining why
Preferred's employment practices and Ms. Steuerwald's comments raise genuine
issues of
material fact with respect to her motivation in making employment
decisions, we also note the following. First, assuming that Ms. Steuerwald
based her
decision on the results of the survey -- or, more precisely,
on the negative comments of three employees about Ms. Sievers -- the decision
was
"performance related" only in the sense that religious beliefs
and practices are part and parcel of Preferred's understanding of "performance."
In other
words, Preferred used an unlawful determinant of "performance."
Second, Ann Parker, Ms. Sievers' supervisor at the time, testified
that she thought the survey had been designed to obtained negative results
about Ms.
Sievers. Pl. Add. Facts, P 964. This is strong testimony from
a management employee, especially one who was in favor with upper management
for a
considerable peroid. Third, Ms. Steuerwald replaced Ms. Sievers
with Sue Klein. Where Ms. Sievers had several years of managerial experience
with
satisfactory (and more than satisfactory) performance evaluations,
Ms. Klein had no management [*235] experience whatever. Third,
as we described in
considerable detail earlier, Ms. Klein's religious views and
practices were demonstrably consistent with Ms. Steuerwald's.
In view of these facts, as well as those recited earlier, there
is a genuine issue of material fact as to whether Ms. Steuerwald demoted
Ms. Sievers on the
basis of religion. Accordingly, we cannot say as a matter of
law that Preferred's demotion of Ms. Sievers was not motivated by religion.
b. Ms. Sievers' Discharge.
After Ms. Sievers' demotion, she was assigned to Nellie Foster's
Leader in the Making program for training to remedy her alleged performance
deficiencies.
Ms. Foster was going to customize a training program for Ms.
Sievers' circumstances. Def. Facts PP 127, 128. The customized training
involved meetings
between Ms. Sievers and Ms. Foster on December 5 and 6, 1995.
Both were religiously-oriented. Pl. Add. Facts PP 1018, 1019. At the December
6 meeting,
Ms. Foster presented the "Lordship Ladder" to Ms. Sievers and
asked such questions as: "What was the last sin you committed?" and "What
was the last
thing you asked God forgiveness for?" Ms. Sievers responded,
"I am a Catholic, and I discuss my sins [*236] with my priest,"
and began crying. Def. Facts
PP 166-169.
Ms. Foster concluded from these meetings that Ms. Sievers was
not a candidate for leadership training and that she should not be returned
to her branch
manager position. She conveyed these conclusions to Ms. Steuerwald,
who decided to offer Ms. Sievers a position in quality assurance instead.
Def. Facts
PP 174, 175, 178-180. On March 8, 1996, three months later, Ms.
Steuerwald fired her. Def. Facts P 186.
Preferred argues that the decision to terminate Ms. Sievers was,
like the decison to demote her, based on Ms. Sievers' performance. It argues
that, during
Ms. Steuerwald's investigation of Ellen Blice's role in the catheter
patient episode, she learned that Ms. Blice had discharged a patient under
questionable
circumstances and that Ms. Sievers did not intervene to correct
the matter. Indeed, according to Ms. Steuerwald's "sources," Ms. Sievers
"actually hung-up
on the client when the client called." According to Preferred,
Ms. Steuerwald also believed that Ms. Sievers was directly responsible
for the loss of business
as a result of separate incidents involving two clients and a
referral source. In addition, Darlene Wright [*237] told Ms.
Steuerwald that Ms. Sievers had
approved the hiring of Ms. Blice even though Ms. Blice did not
meet the company's minimum experience requirements for a field nurse. Def.
Facts PP
188-191. Finally, "Ms. Steuerwald believed that Ms. Sievers'
conduct while she was the branch manager was inimical to PHHC's values
of treating people
with respect and dignity and honoring others." Def. Facts P 194.
While these explanations Of an employment decision might ordinarily
carry considerable weight on summary judgment, here they are counterbalanced
by
all of the evidence that supports the EEOC's argument that Ms.
Steuerwald had a powerful propensity to make employment decisions on the
basis of
religion.
We note in addition that Darlene Wright, who apparently criticized
Ms. Sievers for hiring Ms. Blice even though Ms. Blice did not have the
proper
qualifications, was the same Ms. Wright who recommended Ms. Blice
for the job for which she was hired. Ms. Blice interviewed first with Ms.
Wright, who
told Ms. Blice to go immediately to Preferred's office on Washington
Avenue and see Barbara Burke. Ms. Wright told Ms. Blice: "You would be
a wonderful
person for the Preferred agency. We need [*238] the
nurse. You just need to talk to Barb." Pl. Add. Facts P 1059. Ms. Burke
told Ms. Blice that Darlene
Wright wanted Ms. Blice hired on the spot. Pl. Add. Facts P 1060.
Ms. Burke also recommended Ms. Blice's hire because of her technical skills.
Pl. Add. Facts
P 1061.
Besides, by the time Ms. Steuerwald fired Ms. Sievers, Ms. Blice
had been employed for two years. She had received favorable employment
evaluations
prepared by Barbara Burke. Def. Facts P 206. The decision to
terminate Ms. Sievers because of a decision she participated in two years
earlier raises an
eyebrow as to suspicious timing.
We also note that Ms. Sievers' alleged loss of a referral source
is questionable. At first Ms. Steuerwald could not identify which referal
source Ms. Sievers
allegedly lost. Then, she identified the referral source as the
Vincennes Housing Authority. It turned out, however, that the Vincennes
Hosuing Authority
was not a source of referrals. Pl. Add. Facts PP 1055-1056.
Additionally, one of Ms. Steuerwald's express reasons for discharging
Ms. Seivers was that Ms. Sievers' performance as branch manager was "inimical"
to
Preferred's values. Coupled with Ms. Stueurwald's earlier findings
that [*239] Ms. Sievers was irredeemable as a leader and that
Ms. Sievers did not
exemplify such characteristics as "a teachable spirit," we cannot
separate religious reasons from the secular reasons, or subjective reasons
from objective
reasons in a sufficiently conclusive manner so as to grant summary
judgment.
Both the decision to demote Ms. Sievers and the decision to discharge
Ms. Sievers were made, at least in part, on the basis of subjective factors:
"attitude," "caring," "management style," and the like. Federal
courts, including the Seventh Circuit, have routinely held that an employer
may base
adverse employment actions on subjective factors. Giacoletto
v. Amax Zinc Co., Inc., 954 F.2d 424, 427-428 (7th Cir. 1992); Chapman
v. AI Transport, 229
F.3d 1012, 1033 (11th Cir. 2000), en banc. They have also held,
however, that subjective explanations are more susceptible of abuse and
may mask
discrimination more effectively than objective, testable explanations.
In Giacolletto, for example, the Seventh Circuit noted that: "Although
relying on
subjective factors is not per se illegal, the jury may, under
some circumstances, reasonably consider subjective [*240] reasons
as pretexts for
discrimination." Id. And in Perfetti v. First Nat. Bank of Chicago,
950 F.2d 449, 457 (7th Cir. 1991) the court observed: "we recognize the
ease with which
employers may use subjective factors to "camouflage discrimination."
To prevent employers from masking discrimination behind an incantation
of subjective
factors, we have held that, under many circumstances, subjective
factors may be insufficient to justify the employer's hiring decision."
[Citation omitted.]
The EEOC's evidence is sufficient to raise a reasonable inference
that Ms. Sievers' demotion and termination were based on religion and that
they were,
therefore, in violation of Title VII.
c. Retaliatory Discharge.
The EEOC alleges, alternatively, that Ms. Sievers was terminated
in retaliation for having complained about religious discrimination. In
addition to
protecting employees from discrimination based on race, Title
VII prohibits an employer from retaliating against an individual who "participates"
in
statutorily-protected conduct or who "opposes" conduct made unlawful
by the statute. 42 U.S.C. § 2000e-3(a). See, McDonnell v. Cisneros,
84 F.3d 256,
262 (7th Cir. 1996). [*241]
In order to prevail on the retaliation claim, the EEOC must show
that Ms. Sievers (1) engaged in statutorily protected expression; (2) suffered
an adverse
employment action; and (3) there is a causal relationship between
the protected expression and the adverse action. Maarouf v. Walker Manufacturing
Co.,
210 F.3d 750, 755 (7th Cir. 2000); Alexander v. Gerhardt Enterprises
Inc., 40 F.3d 187, 195 (7th Cir. 1994).
By engaging a lawyer who wrote on her behalf a letter which focuses
on alleged employment discrimination, Ms. Sievers clearly engaged in statutorily
protected conduct. She subsequently experienced a materially
adverse employment action in that she was discharged. As is usually the
case, this
retaliation claim boils down to the sufficiency of the evidence
to support the causal connection between engaging in the protected conduct
and the
adverse employment action. While the call is a close one, we
believe the evidence is sufficient to raise an inference of causation.
First, the evidence supports an inference of "suspicious timing"
or a "telling temporal sequence." E.g., Horwitz v. Board of Educ. of Avoca
School Dist. No. 37,
260 F.3d 602, 612-613 (7th Cir. 2001); [*242] Foster
v. Arthur Andersen, LLP, 168 F.3d 1029, 1034 (7th Cir. 1999); Davidson
v. Midelfort Clinic, Ltd., 133
F.3d 499, 511 (7th Cir. 1998). Ms. Sievers' lawyer, Mr. Cummings,
wrote to Preferred on January 31, 1996, shortly after Ms. Sievers was demoted.
The gist
of his letter was that Ms. Sievers felt she had been the victim
of religious discrimination. The letter sets forth in some detail what
Mr. Cummings called the
religious "indoctrination" to which Ms. Sievers had been subjected.
This included some of Ms. Steuerwald's favorite practices, including the
dissemination
of religious materials in the work place, Ms. Steuerwald's focus
on employees' confession of sin and repentance, and Nellie Foster's Leader
in the Making
program, including its "Lordship Ladder." Ms. Sievers was terminated
on March 8, a mere five weeks later. There is support in the case law for
the
proposition that timing alone may, under the proper circumstances,
create a reasonable inference of retaliation. Horwitz, 260 F.3d at 612-613;
Silk v. City of
Chicago, 194 F.3d 788, 800-801 (7th Cir. 1999).
Second, the EEOC has presented considerable evidence [*243]
indicating that Ms. Steuerwald did not respond warmly to those who disagreed
with her
religious views. She stared at employees who refused to sing
hymns during devotions. She almost literally got in Kathy Robinson's face
and called her a
"vain sinner" when Ms. Robinson asked her a why it was vanity
for employees to make their jobs run more smoothly. She got a "devastated"
look on her
face, her eyes got large, and she looked as if she had been knocked
over when Sherry Stute said that she had converted to Catholicism. These
examples
(and there are others) suggest a propensity on Ms. Steuerwald's
part to react against those who challenge her religious views, which is
what Sondra
Sievers appeared to be doing through her lawyer's letter. Indeed,
coming from a lawyer, Mr. Cummings' letter conveyed the kind of threat
that no
employee's work place challenge could match. This is the kind
of propensity evidence that we discussed earlier: "remarks and other evidence
that reflect a
propensity by the decisionmaker to evaluate employees based on
illegal criteria [that] will suffice as direct evidence of discrimination."
Sheehan, 173 F.3d
at 1045; Venters, 123 F.3d at 973. [*244]
Third, Ms. Steuerwald mentioned Mr. Cummings' letter when she
met with Ms. Sievers on the day she terminated her. She opened the meeting
with words
to the effect that: "I understand that you have some questions
about your demotion and that you feel it has to do with religious discrimination."
Pl. Add.
Facts P 1052.
Finally, Ms. Steuerwald asked Mr. Pyatt -- who accompanied Ms.
Steuerwald when she fired Ms. Sievers -- whether she should terminate Ms.
Sievers. Mr.
Pyatt opposed terminating her on the ground that "the paper trail"
was not strong enough. Def, Facts P 187; Pl. Add. Facts P 1054 and Def.
Resp.
Whatever Mr. Pyatt meant -- and at least one interpretation is
unfavorable to Preferred -- he clearly did not think there were sufficient
grounds to support
her termination at the time.
The EEOC's evidence of retaliation is sufficient to raise a reasonable
inference that Ms. Sievers was fired for having complained about religious
discrimination. Accordingly, we DENY Preferred's motion for summary
judgment with respect to Ms. Sievers' retaliation claim.
3. Ellen Blice
The EEOC alleges that Ellen Blice was subjected to discriminatory discipline and then discharged on the basis [*245] of religion.
a. Discriminatory Discipline.
The basis for Ms. Blice's discriminatory discipline claim is that
she received a verbal warning for having committed an infraction that was
substantially
identical to an infraction which co-employee Donna Drew also
committed, but about which Ms. Drew was neither disciplined nor warned.
Since there is
evidence to suggest that Ms. Drew shared the dominant groups's
religious values, the EEOC argues that there is an issue of fact as to
whether religion
explains the difference in treatment.
Perhaps it does. But well-settled case law in our circuit compels
us to conclude that the claim is not actionable because warnings, by themselves,
do not
rise to the level of a materially adverse employment action.
Kersting v. Wal-Mart Stores, Inc., 250 F.3d 1109, 1118-1119 (7th Cir. 2001);
Smart v. Ball State
University, 89 F.3d 437, 441 (7th Cir. 1996); Harbison v. Prestige
Group, Inc., 2001 U.S. Dist. LEXIS 5024, 2001 WL 395786 (S.D.Ind., 2001),
pp. *28-*29.
Accordingly, we find that Ms. Blice's unlawful discipline claim
is not legally cognizable and GRANT Preferred's motion for summary judgment
with respect to
it.
b. Discriminatory [*246] Discharge.
i. The Decision Maker.
As a preliminary matter, Preferred argues that Ms. Steuerwald
did not know Ms. Blice's religion so that religion could not have been
a basis for terminating
her. n28 Rabinovitz v. Pena, 89 F.3d 482, 489 (7th Cir. 1996).
Preferred's argument presupposes that Ms. Steuerwald made the decision
to terminate Ms.
Blice. See, Def. Facts P 302. The EEOC states, without challenge,
however, that "Jackie Steuerwald was not involved in the decision to terminate
Ellen
Blice." And that: "Sue Klein made the decision to terminate Ellen
Blice prior to the meeting with Jackie Steuerwald on February 14, 1996."
Pl. Add. Facts PP
1080, 1081. The EEOC's position is supported by Sue Klein's testimony
that she, Karen Lemons, and Terry Jennings made the decision and that she
couldn't say that Ms. Steuerwald played any role in it. Klein
Dep. Vol. II, 144-45. It is also supported by Ms. Jennings' testimony,
in which she denied that
Ms. Steuerwald was involved in the decision and said that the
decision was made on the branch level by Ms. Klein. Hedges (Jennings) Dep.,
p. 176,
257-258. There is at least an issue of fact as to who made the
decision to [*247] terminate Ms. Blice. Since a jury could
find that Ms. Klein made the
decision and that Ms. Steuerwald concurred in it, this preliminary
matter must be resolved in favor of the EEOC.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - -
- - - - - - - - -
n28 We find Preferred's statement somewhat disingenuous. Unrebutted
testimony establishes a reasonable inference that, on February 14, 1996,
the day
Ms. Steuerwald went to Vincennes to discuss Ms. Blice's warning
with her, Ms. Steuerwald handed Ms. Blice a song sheet for the song beginning
"He is a
mighty God" and said "You need to sing this." Ms. Blice did not
sing the song. Ms. Steuerwald stared at Ms. Blice for the remainder of
the devotions period.
Def. Facts PP 269-272; Pl. Add. Facts PP 1111-1116.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - -
- - - - - - - - -
ii. Ms. Blice's Discharge.
Preferred claims that Ms. Blice was fired because of the catheter
incident of November 1995, n29 which we previously described in detail.
In brief, Ms. Blice
received orders on a Friday from Dr. Shelton to remove a patient's
catheter and to reinsert it some time over the weekend. Donna Drew was
the on-call
[*248] nurse for the weekend. Ms. Blice paged her. When
Ms. Drew did not respond, Ms. Blice informed Karen Lemons, her supervisor,
that she needed
to see Ms. Drew and that the patient's condition had changed.
Ms. Lemons said she would inform Ms. Drew of the change. Ms. Drew did not
make contact
with Ms. Blice until around noon on Saturday. She told Ms. Blice
that she was with her daughter at a sporting event and could not leave
to take care of the
patient right then. Ms. Drew did not go to the patient's house
to replace the catheter until 1:30 p.m. Sue Klein, the Acting Branch Manger,
believed that the
optimal response would have been for Ms. Drew to replace the
catheter immediately. Pl. Add. Facts, PP 1084-1099; Def. Facts PP 238-252.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - -
- - - - - - - - -
n29 Since we must assume for purposes of summary judgment that
Ms. Klein was the decision maker and that Ms. Steuerwald had nothing to
do with the
decision, we must discount Ms. Steuerwald's testimony that she
was also outraged by Ms. Blice's role in the lasix incident that had occurred
in July 1995,
which Ms. Steuerwald says she discovered on February 14, 1996,
and for which she said she would have terminated Ms. Blice in any event.
Def. Facts PP
280-301. Since Ms. Steuerwald did not participate in the termination
decision, and since there is no evidence that Ms. Klein considered the
lasix incident in
her decision to fire Ms. Blice, then the lasix incident could
not have figured in the decision. Nevertheless, even if we credited this
testimony, to determine
which factor(s) played a role in which decision maker's decision
would require too much speculation to support a grant of summary judgment.
Only a jury is
empowered to make such decisions.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - -
- - - - - - - - - [*249]
The following Monday morning, Ms. Blice met with Ms. Klein and
Ms. Lemons. Ms. Klein and Ms. Lemons instructed Ms. Blice to make direct
contact with the
on-call nurse in the future whenever a patient's condition changed.
Although Ms. Blice denied responsibility for the catheter incident because
she felt she
had acted appropriately by informing Nursing Supervisor Lemons,
she apologized and indicated that she would give proper notification in
the future.
In early February 1996, a surveyor from the State audited some
of Preferred's client charts based on a complaint received from the catheter
patient. As a
result of the survey, Preferred received a deficiency for lack
of communication in the area of "coordinating client care." The state surveyor
had found two
charts where the primary nurse had failed to coordinate with
the on-call nurse; one chart involved the catheter incident in which Ms.
Blice was the primary
nurse, while the other chart, on which Ms. Drew was the primary
nurse, involved a failure to communicate a medication change. As a result
of the audit, Ms.
Blice received a formal verbal warning on February 8. Ms. Drew,
who also disavowed responsibility, never received a warning [*250]
and was not even
counseled over the deficiency for more than a week. Pl. Add.
Facts PP 1100-1105; Def. Facts PP 255, 256.
A jury could reasonably conclude from the evidence that Ms. Klein
decided to terminate Ms. Blice because of the catheter incident. But a
jury also could
reasonably conclude from the evidence that religion played a
role in the decision. Where the evidence is sufficient to support an inference
that an unlawful
criterion played a role in an adverse employment action, a grant
of summary judgment would be improper. That is the case here.
First, it appears from the evidence that Ms. Blice and Ms. Drew
were similarly-situated. Each had made an error in communications that
involved patient
care and both incidents showed up in a state audit that led to
a deficiency for the company. Indeed, Ms. Drew had been involved in both
incidents. Pl. Add.
Facts PP 1106-1110. Yet Ms. Blice was given a formal warning
and shortly thereafter terminated, while Ms. Drew was merely counseled.
The difference
between Ms. Klein's treatment of Ms. Blice and her treatment
of Ms. Drew calls for a non-discriminatory explanation. None is apparent
from the record.
Second, even if Ms. Steuerwald [*251] may have been
unfamiliar with Ms. Blice's religion, Sue Klein was quite familiar with
Ms. Blice's objections to
religion in the work place, including her numerous requests to
Ms. Klein not to prayer over her. The record indicates that Ms. Blice asked
Ms. Klein not to
pray over her six times during the week before her termination.
On February 9, 1996, five days before Ms. Blice's termination, Ms. Klein
saw a
Communication Note signed by Nurse Carol Smith stating that Ms.
Blice has said that things have changed since Ms. Klein took over and that:
"Sue K.
always tells her, 'I'll pray for you,' and Ellen [Blice] said,
'she can take her prayers somewhere else. I don't need them.'" Klein Dep.
Vol. II, 225-26, Ex. 70.
Additionally, toward the end of Ms. Blice's employment, she attended
a meeting with Ms. Klein, Ms. Drew, Ms. Lemons, and Terry Jennings. At
the outset,
Ms. Klein conducted a prayer for Ms. Blice to understand the
meeting that they were going to have and to ask God for his acceptance.
Pl. Add. Facts P
1102. At the end of the meeting, Ms. Blice was encouraged to
be more humble, to look to God so that things would be better and she wouldn't
have as
much chaos in her life. Pl. [*252] Add. Facts P 1103.
Third, among the reasons Preferred has offered for its action
against Ms. Blice is that she rejected responsibility for the catheter
incident and was not
sufficiently apologetic about it. It expressly asserts that Ms.
Blice was discharged because of Ms. Klein's and Ms. Steuerwald's assessment
of her
"performance" and "attitude." Def. Facts P 301, n. 4. As we noted
earlier, religion and work performance were so thoroughly intertwined at
Preferred that
we cannot determine as a matter of law that any particular instance
of "performance" was not also an instance of religious beliefs or values.
Whether
"performance" involved Ms. Blice's duties as a nurse or her subscription
to the company's religious values is a question for a jury. Similarly,
while an
employer may consider an employee's "attitude" in evaluating
her work performance, the term is so subject to the kind of abuse we discussed
earlier as to
make it suspect when it is used to justify a discharge.
The evidence presented by the EEOC is sufficient to raise a genuine
issue of material fact as to Preferred's motive in discharging Ellen Blice.
Accordingly,
Preferred's motion for summary judgment as to Ms. Blice's
[*253] discharge claim is DENIED.
4. Sherry Stute: Failure to Promote.
The EEOC alleges that Preferred refused to promote Sherry Stute
to branch manager of the Evansville branch on the basis of religion. Preferred
argues
that Ms. Stute was unqualified for the position, never applied
for it, and was never rejected for it. The parties have offered little
evidence to support their
respective claims. However, that evidence is, in light of all
the other evidence we have discussed, enough to raise a jury question.
The evidence shows that Ms. Stute was hired as RN Supervisor at
Preferred's Evansville facility. She had been told when she was hired that
Preferred was
hiring her as RN Supervisor to get the Evansville office operational,
but that once it became financially stable, the RN supervisor would move
into the
branch manager position and a new RN Supervisor would be hired.
Pl. Add. Facts P 1221. On February 21, 1996, Preferred hired Wanda Wallace,
a retired
former administrator for PMCI, to be the acting branch manager
of the Evansville branch. Among her duties, Ms. Wallace was to train Ms.
Stute to become
the branch manager. Ms. Stute was informed that Ms. Wallace would
be training her [*254] for that job. Preferred does not dispute
the EEOC's statement
that Ms. Stute was never given the opportunity to apply for the
branch manager position at Evansville. Pl. Add. Facts P 1223.
Preferred asserts that Ms. Stute was not qualified for the branch
manager's position, because she did not have any previous home health experience,
and
one year of experience was required for the position. The EEOC
points out that one year was "preferred," but not "required." Def. Facts
PP 404 (and Pl.
Resp.), 405. The evidence shows that Darlene Wright knew that
Ms. Stute had no prior home health care when she recommended her for the
job. And so
did branch manager Sondra Sievers and nursing supervisor Cherie
Deem. Ms. Wright thought, however, that Ms. Stute's financial experience
"sounds
perfect for what the job we want done in Evansville, because
we want someone who is working with finances and understands the bottom
line." Pl. Ad.
Facts 1181, 1188, 1191. The EEOC also points out that by the
time Ms. Stute would have become branch manager, she would have had the
requisite two
to three years of managerial experience.
Preferred also asserts that Ms. Stute never applied for the job.
While that may [*255] be precisely true, there is no evidence
to support the proposition
that promotion to this position (or for any position at Preferred,
for that matter) was based on employee applications. See, e.g., Loyd v.
Phillips Bros., Inc.,
25 F.3d 518, 523-524 (7th Cir. 1994); Box v. A & P Tea Co.,
772 F.2d 1372, 1377 (7th Cir. 1985), cert denied, 478 U.S. 1010, 106 S.
Ct. 3311, 92 L. Ed. 2d
724 (1986)). Instead, the EEOC alleges that Ms. Stute had a reasonable
expectation of promotion at the outset of her employment, and presents
evidence
to support that allegation.
Once again, in view of all of the evidence a jury could reasonably
conclude that Preferred did not promote Ms. Stute because she was unqualified
(or
under-qualified); or it could reasonably conclude that religion
was a determining factor in not promoting her to branch manager.
Without recounting all of the evidence in detail, we simply note
the following facts. After Sondra Sievers was discharged in November 1995,
Terry Jennings
served as Ms. Stute's supervisor and Sue Klein was interim branch
manager. We have described in detail Ms. Jennings' numerous denigrating
references to
[*256] Ms. Stute's Catholicism. She told Ms. Stute that
it was mandatory for her and her staff to attend an in-service session
on fasting that Chaplain
Chuck Harrington was presenting. Ms. Jennings placed Ms. Stute
on an improvement plan which included daily Bible readings, daily prayer
and a checklist
indicating how Ms. Stute was progressing on the various criteria.
One of the topics of the improvement plan was how to heal a wounded spirit.
Every meeting between branch manager Wanda Wallace and Sherry
Stute started with prayer. Ms. Wanda Wallace often asked Ms. Stute whether
she had
read her daily scripture. Ms. Wallace referred to Ms. Stute as
a "wounded spirit" and stated that the Bible says wounded spirits need
healing and
nurturing. Ms. Wallace told Jackie Steuerwald that she thought
Ms. Stute was a wounded spirit and told Ms. Stute that Ms. Steuerwald had
agreed with
that assessment. Ms. Wallace told Ms. Stute that she needed to
study the Bible and pray more to overcome being a wounded spirit. She also
asked Ms.
Stute if she had confessed her sins. Ms. Stute was insulted by
Ms. Wallace classifying her as a wounded spirit. Ms. Wallace called Ms.
Stute "proud."
We also have discussed [*257] the fact that Ms. Klein
noted on Ms. Stute's three-month evaluation, among other things, that Ms.
Stute needed to grow
in her faith. Ms. Klein asked Ms. Stute whether she wanted her
to be her prayer partner. Ms. Stute was uncomfortable when Ms. Klein asked
her whether
she prayed and read the Bible regarding a drop in the Preferred's
Evansville clientele.
In view of all of the evidence indicating that the key decision
makers -- Jackie Steuerwald, Terry Jennings, Sue Klein, and, to a lesser
degree, Wanda
Wallace -- perceived Ms. Stute's religion as non-conforming,
we cannot find as a matter of law that religion was not a determining factor
in Preferred's
decision not to promote Ms. Stute to branch manager.
4. Pattern or Practice of Religious Discrimination.
In addition to its claim that Preferred engaged in a pattern or
practice of religious harassment, the EEOC also alleges that Preferred
engaged in a
"pattern or practice" of discrimination based on religion. In
other words, it alleges that the adverse employment actions which Preferred
took against
employees Sievers, Blice, Stute, and Raloff were not merely isolated
acts of religious discrimination against four individuals, [*258]
but were indications of
systemic discrimination -- Preferred's routine method of making
employment decisions.
We have already noted that Title VII expressly prohibits employers
from engaging in a "pattern or practice" of discrimination based on the
statute's
protected criteria. 42 U.S.C. §§ 2000e-6(a). We have
also noted that it is not enough for a plaintiff to show that the employer
engaged in "isolated" or
"sporadic" acts of discrimination. Instead, the evidence must
show that the conduct is "repeated, routine or of a generalized nature."
International
Brotherhood of Teamsters v. United States, 431 U.S. 324, 336,
97 S. Ct. 1843, 1855, 52 L. Ed. 2d 396, (1977) (quoting Senator Humphrey);
King v. General
Electric Company, 960 F.2d 617, 620 (7th Cir. 1992), rehearing
en banc denied.
Preferred argues that the EEOC has not presented any statistical
evidence giving rise to a reasonable inference of systemic discrimination,
whereas the
Seventh Circuit has stated that: "In a pattern or practice disparate
treatment case, statistical evidence constitutes the core of a plaintiffs
prima facie case."
Bell v. Environmental Protection Agency, 232 F.3d 546, 553 (7th
Cir. 2000). [*259] Preferred points out, moreover, that it
employed some four hundred
employees and that the EEOC has made allegations on behalf of
only seven.
The courts do not, however, require any particular kind of evidence
to prove a pattern or practice case. The Supreme Court cautioned in Teamsters
that
"statistics are not irrefutable; they come in infinite variety
and, like any other kind of evidence, they may be rebutted. In short, their
usefulness depends
on all of the surrounding facts and circumstances." 431 U.S.
at 339-340, 97 S. Ct. at 1857. The Seventh Circuit said much the same thing
in King v. General
Electric Company, 960 F.2d 617, 626 (7th Cir. 1992), a pattern
or practice age discrimination case: "Although statistics are useful, they
are not magical. The
finder of fact must always consider the extent to which the statistical
evidence reasonably supports an inference of discrimination." Nor would
the Court
limit the kind of evidence that employers might use in defense.
Teamsters, 431 U.S. at 360 n. 46, 97 S. Ct. at 1867 n. 46. An employer
may attempt to show
that the plaintiffs' proof is "either inaccurate or insignificant,"
id. at 360, 97 S. Ct. at 1867, [*260] or the defendant may
provide a "nondiscriminatory
explanation for the apparently discriminatory result." Id. at
361 n. 46, 97 S. Ct. at 1867 n. 46.
Here, while statistics might have enhanced the EEOC's pattern
or practice case, it has presented sufficient non-statistical evidence
that Preferred
systematically made religious values and practices a routine
part of its employment operations. The EEOC also has introduced evidence
that seven
employees, and one would-be employee, suffered a variety of adverse
employment actions based on religion. The range of adverse actions is also
significant. They include demotion, discharge, constructive discharge,
failure to hire and failure to promote. This evidence complies with the
Seventh
Circuit's requirement that, in addition to showing that the company
had a discriminatory policy, it produce "some victims" or "some valid direct
or
circumstantial evidence to show that [the company] actually followed
the policy in its treatment of employees." EEOC v. Sears Roebuck &
Co., 839 F.2d 302,
354-355 (7th Cir. 1988). We find that the EEOC's evidence amply
supports a reasonable inference that Preferred engaged in [*261]
a pattern or practice
of discrimination in the form of disparate treatment, at least
for purposes of Preferred's motion for summary judgment.
IV. Conclusion.
For all of the aforestated reasons, we summarize our holdings
as follows. We DENY Preferred's motion for summary judgment except with
respect to the
EEOC's claim that Ellen Blice was the victim of discriminatory
discipline. We construe Preferred's "Establishment Objections" as a motion
to strike and DENY
that motion. We GRANT the EEOC's motion for partial summary judgment
in all particulars, except for its request that we find as a matter of
law that PMC is
a proper defendant and except for its request that we find admissible
all evidence of Preferred's conduct before June 18, 1995 and after July
26, 1996,
which portions we DENY. To the extent that Preferred's arguments
concerning statute of limitations may be viewed as a motion separate from
its motion
for summary judgment, we DENY that motion and conclude that none
of the EEOC's claims is barred by any statute of limitations.
It is so ORDERED this 1st day of March 2002.
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana