No High Court Review for Worker Who Wouldn't Pray Rosary

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By Lisa Nagele-Piazza

Feb. 29 — Denying a former nursing home employee's petition, the U.S. Supreme Court Feb. 29 declined to review a federal appeals court ruling that the employee, who had refused to pray the rosary with a patient, failed to show the decision to discharge her was motivated by her religious beliefs.

In an August 2015 decision, the U.S. Court of Appeals for the Fifth Circuit considered Kelsey Nobach's claim in light of the Supreme Court's ruling in EEOC v. Abercrombie & Fitch Stores Inc., 135 S. Ct. 2028, 127 FEP Cases 157 (2015).

In Abercrombie, the high court said Title VII of the 1964 Civil Rights Act prohibits employment decisions “taken with the motive of avoiding the need for accommodating a religious practice.” But Nobach didn't show Woodland Village Nursing Center Inc. knew before it decided to fire her that she refused to pray the rosary because of her religious beliefs, the Fifth Circuit said.

In her petition for review, Nobach argued that when an employee refuses to perform a job duty that is inherently religious, the employer should be required to ask if the basis for the refusal is religious and explore possible accommodations before terminating the employee.

Nobach said she was working an unscheduled shift in a different area that day and that she previously had never been asked to pray the rosary.

Arguing against review, Woodland Village said the Fifth Circuit's ruling doesn't conflict with Abercrombie. In Abercrombie, a Muslim job applicant who interviewed wearing a head scarf that violated a “no cap” policy argued that she wasn't hired because of her religious practice even though she didn't disclose that she was wearing the head scarf for religious reasons.

Woodland Village argued it is a critical distinction that Abercrombie decisionmakers admitted they at least suspected the applicant wore the head scarf for religious reasons. Nobach didn't present evidence that the decisionmakers knew she refused to pray the rosary with the patient because of her religious beliefs or that she was seeking a religious accommodation, the nursing home argued.

Fifth Circuit Takes Second Look After Abercrombie

Nobach was working an unscheduled shift when a nurse's assistant with no supervisory authority informed her that a resident had asked for someone to pray the rosary with her. Nobach said she told the assistant, “I'm not Catholic, and it's against my religion.”

Nobach was fired after an investigation into the patient's complaint to management that no one prayed the rosary with her that day.

Nobach had been written up on four previous occasions, but her supervisor allegedly said, “I don’t care if it’s your fifth write-up or not. I would have fired you for this instance alone.”

Nobach first told her supervisor during the termination meeting that praying the rosary went against her Jehovah's Witness beliefs. And her supervisor allegedly said it was still insubordination.

Nobach filed a lawsuit asserting a Title VII religious discrimination claim, and a jury ultimately returned a verdict in her favor.

The Fifth Circuit overturned the verdict in August 2014, finding that Nobach failed to present any evidence that Woodland Village had knowledge of her religious beliefs before termination .

But the Supreme Court ordered the appeals court to review the case again in light of its Abercrombie ruling.

On remand, the Fifth Circuit said Abercrombie didn't change the result .

Conflict About Significance of Activity's Religious Nature

In her petition for review of the Fifth Circuit's latest ruling, Nobach said the jury could have inferred that Woodland Village was aware of her religious conflict because of the religious nature of the assignment.

The court shouldn't require an employee or applicant to give what is akin to advance notice of all her religious beliefs and notice of how those beliefs may conflict with possible job duties, she argued.

Nobach said she didn't know that she would ever be asked to pray the rosary again because it wasn't one of her regular job duties.

In its opposition brief, Woodland Village argued that an activity’s religious nature alone isn’t enough to generate suspicion about an employee's religious beliefs. “Absent at least a suspicion as to an employee’s religious beliefs, there can be no discrimination ‘because of a religious practice,’” the nursing home said.

Danielle Brewer Jones in Biloxi, Miss., was counsel of record for Nobach. Steven R. Cupp of Fisher & Phillips LLP in Gulfport, Miss., was counsel of record for Woodland Village.

To contact the reporter on this story: Lisa Nagele-Piazza in Washington at lnagele@bna.com

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