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E-Mail Calling Cartoon Offensive to Muslims 'Wonderful' Not Religious Belief Expression

Monday, December 2, 2013
By Anne A. Marchessault

Nov. 29 --An Indiana state employee fired for forwarding an e-mail containing a cartoon offensive to Muslims with the comment, “I think this is wonderful,” does not have a plausible religious discrimination claim, a federal district court in the state ruled Nov. 20 (Ogle v. Ind. Dep't of Workforce Dev., 2013 BL 326449, S.D. Ind., No. 1:13-cv-00556, 11/20/13).

Because Ronald Ogle nowhere pointed to a specific religious belief that motivated the e-mail, the court sided with the Indiana Department of Workforce Development in its position that Ogle did not engage in activity protected by Title VII of the 1964 Civil Rights Act.

“The Court agrees with the IDWD's contention that Mr. Ogle has not alleged any facts to suggest that he was discriminated against on the basis of his religion or religious beliefs,” Judge Tanya Walton Pratt wrote.

“Mr. Ogle cannot first state that he sent the email because of its perceived comedic value, and then claim that it was actually an expression of his religious beliefs,” Pratt continued for the U.S. District Court for the Southern District of Indiana.

Fired for 'No Muslims Inside' Message
In June 2006, the IDWD hired Ogle as a “merit” employee in the position of community employment specialist 3 within the department's Disabled Veteran Outreach Program.

On Nov. 10, 2010, Ogle forwarded an e-mail to co-workers and other individuals with a cartoon picture of a barbecue restaurant named “Little Pigs Genuine Pit.” The restaurant's marquee said, “Safest Restaurant on Earth, No Muslims Inside.”

Ogle commented, “I think this is wonderful,” indicating that he thought the cartoon was funny.

Several of Ogle's co-workers found the e-mail and his comment to be offensive, and they complained to IDWD management.

The IDWD held a predeprivational hearing two days later, and it decided Ogle should be fired for violating Indiana's Information Resources Use Agreement.

After a 30-day unpaid suspension, Ogle's discharge became effective Dec. 12, 2010.

Two other IDWD employees who forwarded e-mails with cartoons about religions other than Islam were accused of violating Indiana's Information Resources Use Agreement, but they received only five-day unpaid suspensions.

Ogle contested his discharge in an administrative merit complaint process. The State Employees' Appeals Commission (SEAC) issued an order rescinding the discharge and reinstating Ogle with the IDWD.

On April 3, 2013, Ogle filed suit in the district court. One week later, he filed an Equal Employment Opportunity Commission charge of discrimination.

The EEOC issued Ogle a notice of right to sue, and he filed his first amended complaint seeking compensatory damages for IDWD's alleged violation of his First Amendment rights under the U.S. Constitution and for religious discrimination under Title VII.

Ogle withdrew his First Amendment claim, and the IDWD moved to dismiss his Title VII claim.

E-Mail Did Not Express Religious Beliefs
Finding that Ogle's e-mail did not express his religious beliefs, the court ruled that he failed to state a Title VII discrimination claim under which relief may be granted.

As the court noted, the SEAC decided Ogle's e-mail did not warrant the termination of his employment under Indiana's Information Resources Use Agreement.

“While Mr. Ogle's initial termination may have been erroneous, it does not follow that he was terminated on the basis of his religious beliefs,” Pratt said. “The email that Mr. Ogle sent, despite referencing a religion, did not make any claim to Mr. Ogle's religion or his beliefs.”

Furthermore, the court noted, Ogle did not specify in his complaint that he was a member of any particular religion or that his employer was aware of any religion--or lack of religion--with which he identified.

Pratt said, “Mr. Ogle's email was simply a poorly calculated joke that some people found offensive, and although it may not have warranted termination, it also does not warrant protection under Title VII.”

“Mr. Ogle has not presented, and the Court is not able to find, any Title VII precedent in this Circuit that protects an employee who makes derogatory comments about another religion,” she added.

That Ogle's comment affirmed that he believed the cartoon was funny supported the IDWD's claim that the e-mail did not contain an expression of his religious beliefs, the court said.

The marquee's message suggested that Muslims are dangerous people, the court found, and it proposed that Muslims would not be in a restaurant serving pork because people who are Muslim do not eat pork.

“Certainly, such a proposition would be offensive to both a Muslim and a non-Muslim person, regardless of whether or not Mr. Ogle thought it was 'wonderful,' ” Pratt said.

No Protected Category for Comparator Claim
Although Title VII prohibits disparate impact on the basis of religion, the court found that Ogle failed to demonstrate that he was treated differently because of religion.

Ogle pointed out that two other department employees were only suspended for five days after sending e-mails with cartoons about religions other than Islam.

As the court noted, however, Ogle did not state his religion or religious beliefs in the e-mail he sent.

“Mr. Ogle has also not alleged that he was discriminated against based on his race, color, or national origin,” Pratt said. “Thus, he has failed to establish he was a member of a protected class and therefore, has failed to state a claim of disparate impact on the basis of religion.”

Refuses to Toll Title VII Filing Time
The court rejected Ogle's request to equitably toll the filing time for his Title VII religious discrimination claim, which he filed outside of the applicable statute of limitations.

“In the event that the statutory period for filing a claim has passed,” Pratt said, “equitable tolling may be applied by the court when it would be proper, but such doctrines should be applied sparingly.”

A Title VII claim must be filed with the EEOC within 180 days of the alleged discrimination, but Indiana extends the statute of limitations to 300 days.

Ogle did not file his religious discrimination charge with the EEOC until 850 days had elapsed since the alleged discriminatory discharge.

He argued that the court should equitably toll the requirement of timely filing with the EEOC because he first exhausted his administrative remedies with the state through the SEAC, but the court disagreed.

Ogle was not required to first exhaust his administrative remedies through the SEAC, the court found, and he could not obtain the Title VII remedies he sought before the SEAC.

Furthermore, the court said, Ogle did not allege any good faith error on his part or that the EEOC or the IDWD engaged in any type of misconduct that would have prevented him from timely filing.

“Since there are no factual disputes over the time elapsed between the alleged discrimination and filing with the EEOC, and the discrimination charge was filed beyond the statutory limitation, this Court finds that dismissal of the claim is proper,” Pratt wrote.

Michael J. Cork of Bamberger, Foreman, Oswald and Hahn LLP in Indianapolis represented Ogle. Laura L. Bowker and Madhavi L. Menon of the Indiana attorney general's office in Indianapolis represented the IDWD.

 

To contact the reporter on this story: Anne A. Marchessault in Washington at amarchessault@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/OGLE_v_INDIANA_DEPARTMENT_OF_WORKFORCE_DEVELOPMENT_Docket_No_113c.

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