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U.S. Equal Employment Opportunity Commission v. Consol Energy, Inc.

United States Court of Appeals, Fourth Circuit

June 12, 2017


          Argued: December 7, 2016

         Appeals from the United States District Court for the Northern District of West Virginia, at Clarksburg. Frederick P. Stamp, Jr., Senior District Judge. (1:13-cv-00215-FPS)


          Jeffrey Alan Holmstrand, GROVE, HOLMSTRAND & DELK, PLLC, Wheeling, West Virginia, for Appellants/Cross-Appellees.

          Philip Matthew Kovnat, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Appellee/Cross-Appellant.

         ON BRIEF:

          Jeffrey A. Grove, GROVE, HOLMSTRAND & DELK, PLLC, Wheeling, West Virginia, for Appellants/Cross-Appellees.

          P. David Lopez, General Counsel, Jennifer S. Goldstein, Associate General Counsel, Lorraine C. Davis, Assistant General Counsel, Elizabeth E. Theran, Office of General Counsel, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Appellee/Cross-Appellant.

          Before NIEMEYER, TRAXLER, and HARRIS, Circuit Judges.

          PAMELA HARRIS, Circuit Judge.

         For 37 years, Beverly R. Butcher, Jr. worked without incident as a coal miner at the Robinson Run Mine, owned by appellant Consol Energy, Inc. But when Consol implemented a biometric hand scanner to track its employees, Butcher, a devout evangelical Christian, informed his supervisors that his religious beliefs prevented him from using the system. And although Consol was providing an alternative to employees who could not use the hand scanner for non-religious reasons, it refused to accommodate Butcher's religious objection. Forced to choose between his religious commitments and his continued employment, Butcher retired under protest.

         The United States Equal Employment Opportunity Commission (EEOC) sued on behalf of Butcher, alleging that Consol violated Title VII by constructively discharging Butcher instead of accommodating his religious beliefs. After trial, the jury returned a verdict in favor of the EEOC. Butcher was awarded compensatory damages and lost wages and benefits, but not punitive damages; the EEOC's evidence, the district court ruled, could not justify an award of punitive damages under the standard set out in Title VII. The district court subsequently denied Consol's post-verdict motions seeking judgment as a matter of law, a new trial, and amendment of the district court's findings regarding lost wages.

         We agree with the district court that Consol is not entitled to judgment as a matter of law: The evidence presented at trial allowed the jury to conclude that Consol failed to make available to a sincere religious objector the same reasonable accommodation it offered other employees, in clear violation of Title VII. And we find no error in the host of evidentiary rulings challenged by Consol in its motion for a new trial, nor in the district court's determinations regarding lost wages and punitive damages. Accordingly, we affirm the district court judgment in all respects.



         Butcher began work with Consol in April of 1975, and in September of 1977 started at Consol's Robinson Run Mine, in West Virginia. For almost 40 years, Butcher by all accounts was a satisfactory employee, with no record of poor performance or disciplinary problems. Butcher also is a life-long evangelical Christian. An ordained minister and associate pastor, he has served in a variety of capacities at his church: as a member of the board of trustees, as part of the church's worship team, as a youth worker, and as a participant in mission trips.

         For 37 years, Butcher's employment with Consol posed no conflict with his religious conduct and beliefs. But in 2012, a change to the daily operations of the Robinson Run Mine put Butcher's religious beliefs at odds with his job. In the summer of 2012, Consol implemented a biometric hand-scanner system at the mine, in order to better monitor the attendance and work hours of its employees. The scanner system required each employee checking in or out of a shift to scan his or her right hand; the shape of the right hand was then linked to the worker's unique personnel number. As compared to the previous system, in which the shift foreman manually tracked the time worked by employees, the scanner was thought to allow for more accurate and efficient reporting.

         For Butcher, however, participating in the hand-scanner system would have presented a threat to core religious commitments. Butcher, who testified that his religious beliefs are grounded in the "authenticity . . . [and] authority of the scriptures, " J.A. 675, believes in an Antichrist that "stands for evil, " J.A. 676, and that the Antichrist's followers are condemned to everlasting punishment. Butcher's understanding of the biblical Book of Revelation is that the Mark of the Beast brands followers of the Antichrist, allowing the Antichrist to manipulate them. And use of Consol's hand-scanning system, Butcher feared, would result in being so "marked, " for even without any physical or visible sign, his willingness to undergo the scan - whether with his right hand or his left - could lead to his identification with the Antichrist. That Butcher is sincere in these beliefs is not disputed.[1]

         Butcher brought his concerns to his union representative, who alerted Consol's human resources department. According to Butcher, he was then instructed by Consol to provide "a letter from my pastor explaining why I needed a religious accommodation." J.A. 692. Butcher obtained a letter from his pastor vouching for Butcher's "deep dedication to the Lord Jesus Christ." J.A. 1174. He also prepared his own letter, citing verses from the Book of Revelation and explaining his view that the hand scanner would associate him with the Mark of the Beast, causing him through his will and actions to serve the Antichrist. Butcher ends the letter by stating:

As a Christian I believe it would not be in the best interest of a Christian believer to participate in the use of a hand scanner. Even though this hand scanner is not giving a number or mark, it is a device leading up to that time when it will come to fruition, and in good faith and a strong belief in my religion, I would not want to participate in this program.

J.A. 1173.

         In June of 2012, Butcher met with Mike Smith, the mine's superintendent, and Chris Fazio, a human resources supervisor, to discuss his situation. Butcher provided Smith and Fazio with the letter from his pastor as well as his own letter, and explained that the hand-scanner system was not one that he "could or would want to participate in, " as a Christian. J.A. 694. According to Butcher, and consistent with the religious beliefs described above, the objection he described extended to the scanning of either hand, and was not limited to use of his right hand. Unaware of any other means of accommodating his religious concerns, Butcher offered to check in with his shift supervisor or to punch in on a time clock, as he had in the past while working at the mine.

         In response, Fazio gave Butcher a letter written by the scanner's manufacturer, offering assurances that the scanner cannot detect or place a mark - including the Mark of the Beast - on the body of a person. Offering its own interpretation of "[t]he Scriptures, " the letter explained that because the Mark of the Beast is associated only with the right hand or the forehead, use of the left hand in the scanner would be sufficient to obviate any religious concerns regarding the system. J.A. 1175. Fazio and Smith asked that Butcher review this information with his pastor, and, if he continued to object, provide a letter attesting to his church's opposition to the scanner system.

         At roughly the same time, and unbeknownst to Butcher, Consol was providing an accommodation to other employees that allowed them to bypass the new scanner system altogether. As of July 2012, Consol had determined that two employees with hand injuries, who could not be enrolled through a scan of either hand, instead could enter their personnel numbers on a keypad attached to the system. According to Consol's own trial witness, this accommodation imposed no additional cost or burden on the company, and allowing Butcher to use the keypad procedure would have been similarly cost-free.

         Nevertheless, Consol continued to resist making the same accommodation for Butcher, and instead decided that Butcher would be required to scan his left hand. The disparity in treatment was highlighted by a single email dated July 25, 2012, simultaneously authorizing the keypad accommodation for the two employees with physical injuries and denying that accommodation to Butcher: "[L]et's make our religious objector use his left hand." J.A. 1192.

         Butcher was notified of Consol's decision at a meeting with Smith and Fazio on August 6, 2012. At Butcher's request, the meeting was deferred until August 10, 2012, so that Butcher could consider the option of using his left hand in the scanner. Butcher used that time, he testified, to go "back to the scriptures again" and to "pray[] very hard" about his dilemma. J.A. 708. On August 10, Butcher told Smith and Fazio that "in good conscience [he] could not go along with this system of scanning [his] hand in and out." J.A. 709. Smith promptly handed Butcher a copy of Consol's disciplinary procedures regarding the scanner, with the promise that it would be enforced against him if he refused to scan his left hand. According to the policy, an employee's first and second missed scans each would result in a written warning; the third would result in a suspension; and a fourth would result in suspension with intent to discharge. Butcher believed the message was clear: "If I didn't go along with the hand scan system, their intent . . . was to fire me." J.A. 711.

         Butcher responded to this ultimatum by tendering his retirement. According to Butcher, he emphasized that he did not want to retire: "I didn't have any hobbies, I wasn't ready to retire . . . . I reiterated again, you know, that I really believed and tried to live by the scriptures and, well, almost practically just begged them to find a way to keep my job." J.A. 711. But when Consol remained unsympathetic, Butcher felt he had no choice but to retire under protest.

         Shortly after retiring, Butcher learned from his union, the United Mine Workers of America ("UMWA"), about the keypad accommodation Consol had offered other employees. The union then filed a grievance on behalf of Butcher pursuant to its collective bargaining agreement with Consol, based on Consol's failure to accommodate Butcher's religious beliefs. The UMWA subsequently withdrew the grievance, however, when it determined that its agreement with Consol did not require religious accommodations.

         In the meantime, Butcher, facing what he viewed as pressing financial need, sought new employment. In the summer and fall of 2012, he attended job fairs; looked for job postings; and applied for various jobs, including a position at the one coal mine he knew to have a vacancy. After several months of unsuccessful job-hunting, Butcher was hired by a temporary employment agency in October of 2012 to work as a carpenter helper. In September of 2013, Butcher ...

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