Court Overturns Win by Nursing Home Aide Fired for Failing to Say Rosary

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By Patrick Dorrian  

Aug. 8 — A nursing home activities aide in Mississippi who was fired for refusing to pray the rosary with a resident failed to prove religious discrimination under Title VII of the 1964 Civil Rights Act, the U.S. Court of Appeals for the Fifth Circuit ruled Aug. 7, overturning a jury's $69,584 verdict.

The appeals court found that Kelsey Nobach never established that management at Woodland Village Nursing Center Inc. knew before it decided to discharge her that Nobach's refusal to pray the rosary was based on her conflicting religious beliefs. According to Nobach, she is a former Jehovah's Witness who still observes that faith's call to refrain from saying repetitive prayers like the rosary.

Kelsey Nobach never established that management at Woodland Village Nursing Center Inc. knew before it decided to discharge her that Nobach's refusal to pray the rosary was based on her conflicting religious beliefs as a former Jehovah's Witness, the appeals court said.

After a certified nurse's assistant (CNA) told Nobach a resident wanted the rosary read to her, Nobach said she couldn't do it because “I'm not Catholic, and it's against my religion,” but the CNA wasn't a supervisor, Judge E. Grady Jolly said. Praying the rosary with a resident upon request was one of Nobach's job duties, Jolly added, and Nobach didn't tell Woodland's activities director of the alleged conflict between her religious beliefs and the company's work rule until after learning she was fired.

“We hold, therefore, that a reasonable jury would not have had a legally sufficient evidentiary basis to find that Woodland intentionally discriminated against Nobach because of her religion,” the court wrote, remanding for entry of judgment in favor of the company.

Incident Was Fifth Write-Up

The court said the incident leading to Nobach's termination wasn't her first transgression in her 13 months working for Woodland. Previously, she had been written up for making a false accusation against a co-worker, for stealing a resident's nail polish, and twice for continual tardiness.

Nobach received her fifth and final write-up Sept. 24, 2009, after she refused to read the rosary. She told the CNA it was against her religion to do so, and added, “[I]f you would like to perform the Rosary, you're more than welcome to.”

Although Nobach didn't explain why at the time, she later stated that she is a former Jehovah's Witness who was expelled from the church at age 16 for refusing to repent for her sins. However, she said she still holds many of the religion's beliefs and adheres to many of its tenets, including not praying repetitive prayers.

In addition to issuing Nobach a write-up, Woodland also decided to fire her. When she learned the reason why she had been fired, Nobach told Activities Director Lynn Mulherin for the first time that it was against her religion to perform the rosary. Mulherin replied, “I don't care if it is against your religion or not. If you don't do it, it's insubordination.”

Nobach sued under Title VII. After denying summary judgment to Woodland, the district court sent the case for trial and a jury found in favor of Nobach and awarded her $69,584 in damages. Woodland moved for judgment as a matter of law, but the motion was denied and the company appealed.

Verdict Not Supported

Vacating the judgment, the Fifth Circuit agreed with Woodland that the verdict wasn't supported by the trial evidence. It rejected Nobach's contention that she presented direct proof of religious bias.

“She relies primarily on Woodland's acknowledgement that she was fired for not praying the Rosary with the resident, and that Mulherin said that she did not care if performing the Rosary was against her religion, she still would have been fired because to refuse to perform the Rosary was insubordination,” Jolly said.

But Nobach failed to show that she ever told anyone in Woodland management before her discharge that praying the rosary conflicted with her religious beliefs, or that the company otherwise learned of her conflicting beliefs before it decided to fire her, the appeals court found.

“Although Nobach does not argue the point, other circuits have held that an employer has no obligation to withdraw its termination decision under Title VII based on information supplied after that termination decision has been made,” Jolly added, citing decisions by the Third, Fourth and Eighth circuits.

Judges Jerry E. Smith and Leslie H. Southwick joined the opinion.

Brewer Law Office PLLC represented Nobach. Corporate Management Inc. represented Woodland.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the opinion is available at http://www.bloomberglaw.com/public/document/KELSEY_NOBACH_Plaintiff__Appellee_CrossAppellant_v_WOODLAND_VILLA.