Employers Do Not Get to Define Religion in Exemption Applications

Lately I’ve been helping quite a few people with their religious exemption applications, particularly in regards to one particular hospital in West Virginia. Since I’ve talked with numerous employees, I’ve seen the identical boilerplate form email denials from the hospital – whether the employee is a physician, nurse or remote IT worker. From what I’ve been told the only religious exemptions they’ve granted have been to Jehovah’s Witnesses. Otherwise, they’ve been arguing with employees that mainstream Christianity doesn’t oppose the COVID vaccines.

Since these employers are private employers, rather than agencies of the government, the Bill of Rights doesn’t apply to them. Generally they can just fire employees at-will in West Virginia. However, there are state and federal statutes which provide they can’t do so pursuant to religious discrimination. This hospital appears to be discriminating between Jehovah’s Witnesses and other belief systems. In fact, it’s really not the employer’s right to tell the employee what they believe, but rather only to determine whether the belief is sincerely-held, and to accommodate it, if doing so wouldn’t be an undue hardship to the company.

Title VII of the Civil Rights Act of 1964 (“Title VII”) “makes it an unlawful employment practice ‘to discharge any individual because of such individual’s religion.’” EEOC v. Consol Energy, Inc., 860 F.3d 131, 141 (4th Cir. 2017). In other words, the law provides potentially significant protections to West Virginians who might seek a religious exemption from an employer-imposed vaccine requirement. To make out a prima facie case of that type of discrimination, an employee must show that “(1) he or she has a bona fide religious belief that conflicts with an employment requirement; (2) he or she informed the employer of this belief, and, (3) he or she was not hired or promoted, fired, or otherwise discriminated against for failure to comply with the conflicting employment requirement.” Henegar v. Sears, Roebuck & Co., 965 F. Supp. 833, 836 (N.D.W. Va. 1997). “[A]n employer must make reasonable accommodation for the religious observances of its employees, short of incurring an undue hardship.” Consol Energy, 860 F.3d at 141. An accommodation becomes an “undue hardship” when it imposes “more than a de minimis cost” on the employer. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84, 97 S. Ct. 2264 2277, 53 L. Ed. 2d 113 (1977).

West Virginia lies within the jurisdiction of the U.S. Fourth Circuit Court of Appeals. The Fourth Circuit specifically has warned employers that it’s not their place to question the correctness or plausibility of an employee’s religious understandings:

It is not Consol’s place as an employer, nor ours as a court, to question the correctness or even the plausibility of Butcher’s religious understandings. See Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 887, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (“Repeatedly and in many different contexts, we have warned that courts must not presume to determine … the plausibility of a religious claim.”). Butcher’s religious beliefs are protected whether or not his pastor agrees with them, cf. Thomas v. Review Bd. of Ind. Emp’t Sec. Div. , 450 U.S. 707, 715–16, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981) (protection of religious beliefs not limited to beliefs shared by religious sect), and whether or not Butcher’s pastor—or Consol, or the manufacturer of Consol’s scanning system—thinks that Butcher, in seeking to protect his religious conscience, has drawn the line in the right place, see id. at 715, 101 S.Ct. 1425 (“[I]t is not for us to say that the line [the religious objector] drew was an unreasonable one.”). So long as there is sufficient evidence that Butcher’s beliefs are sincerely held—which the jury specifically found, and Consol does not dispute—and conflict with Consol’s employment requirement, that is the end of the matter.


U.S. Equal Emp’t Opportunity Comm’n v. Consol Energy, Inc., 860 F.3d 131 (4th Cir. 2017) (emphasis added). 

Certainly, for employees who are now working remotely, it would be difficult for the employer to claim that further accommodation during a pandemic is an undue hardship. The Fourth Circuit addressed this in the Consol Energy case:

Indeed, once we take out of this case any suggestion that Butcher may have misunderstood the Book of Revelation or the significance of the Mark of the Beast, there is very little left. This case does not present, for instance, the complicated questions that sometimes arise when an employer asserts as a defense to a religious accommodation claim that the requested accommodation would not be feasible, and would instead impose an “undue hardship” on its operations. See Firestone Fibers , 515 F.3d at 311–12 ; TransWorld Airlines , 432 U.S. at 79–85, 97 S.Ct. 2264 (considering whether requested religious accommodation was feasible). Quite the contrary: Consol expressly conceded that allowing Butcher to bypass the scan by entering his identification number into a keypad would impose no additional burdens or costs on the company. And Consol knew this, of course, because it had provided precisely that accommodation to two other employees who needed it for non-religious reasons—and then, in the very same email, refused to give equal regard to Butcher’s request for a religious accommodation. In light of all of this evidence, we have no reason to question the jury’s determination that Consol should be held liable for its response to a conflict between Butcher’s sincere religious beliefs and its scanner-system requirements.

U.S. Equal Emp’t Opportunity Comm’n v. Consol Energy, Inc., 860 F.3d 131 (4th Cir. 2017) (emphasis added). 

Another thing this hospital has been doing is informing employees that they aren’t being disciplined or terminated, but instead are choosing to “voluntarily” resign. The Fourth Circuit rejected that claim already in the same case I’ve already cited:

“According to Consol, Butcher was not disciplined or terminated but instead voluntarily retired, and the jury’s contrary finding of constructive discharge cannot be sustained on the evidence introduced at trial.”…. 

We agree with the district court that there exists substantial evidence that Butcher was put in an intolerable position when Consol refused to accommodate his religious objection, requiring him to use a scanner system that Butcher sincerely believed would render him a follower of the Antichrist, “tormented with fire and brimstone.” J.A. 683–84. This goes well beyond the kind of run-of-the-mill “dissatisfaction with work assignments, [ ] feeling of being unfairly criticized, or difficult or unpleasant working conditions” that we have viewed as falling short of objective intolerability. Cf. Carter v. Ball , 33 F.3d 450, 459 (4th Cir. 1994) (internal quotation marks omitted). And like the district court, we do not think that the future prospect of a successful grievance under a collective bargaining agreement—even assuming, contrary to the union’s determination, that the collective bargaining agreement at issue here allowed for a grievance based on a right to religious accommodation—would do anything to alleviate the immediate intolerability of Butcher’s circumstances.

U.S. Equal Emp’t Opportunity Comm’n v. Consol Energy, Inc., 860 F.3d 131 (4th Cir. 2017) (emphasis added). 

Thus, despite this hospital’s attempts at mislabeling the termination of their employees as “voluntary” resignations, they will still remain potentially liable because their intention is to force the employee out – to give them no choice of staying. That’s either a termination, or a constructive termination. The remedy here is to file a charge with the EEOC, after which the charge will run its course with the EEOC and then litigation for religious discrimination can ensue – hopefully to a jury for a large award of damages.

Here’s a link to the EEOC website where you go through their online portal in order to file an EEOC charge for religious discrimination against an employer:

https://www.eeoc.gov/how-file-charge-employment-discrimination

Federal Lawsuit Filed in the Creepy Cops Caught on Video Case

The lawsuit was filed today on behalf of Dustin Elswick, against Putnam County, West Virginia, along with four police officers involved in the infamous “Special Enforcement Unit.” These are the cops who were caught on hidden camera searching the inside of Dustin’s home. Although they cut the wire on an outside surveillance camera, they were apparently unaware of the cameras inside the home.

This is a federal “Section 1983” lawsuit alleging the violation of federal constitutional rights; namely, the Fourth Amendment right to be free from unreasonable search and seizure. A warrantless search of your home is automatically unconstitutional in the absence of one of two exceptions: consent, or exigent circumstances (emergency), neither of which apply here. Two prior federal lawsuits have already been filed against the SEU thus far for similar allegations in the Johnson case, as well as the Dillon case. The remedy is an award of money damages, along with reasonable attorney fees and expenses.

There was an internal investigation, as the news reported, but we never received information about the outcome. That sheriff has since been replaced.

Here’s the Complaint:

Here’s the original video:

Here’s the update video:

Another Federal Civil Rights Lawsuit Filed against the Putnam County “Special Enforcement Unit”

This week we filed a second federal civil rights lawsuit against the Putnam County, West Virginia so-called “Special Enforcement Unit.” This is the same “SEU” guys who were featured in the Dustin Elswick video. This case features one of the victims who came forward after the Elswick video became public.

It involves a young man who was visiting a friend’s house, on his way to go fishing. The SEU just happened to raid his friend’s home, without a warrant, keeping my client in handcuffs for an extended period of time while they searched the house. Apparently they found a small amount of pot in the friend’s house and a couple hundred dollars in cash, which they took. No paperwork documenting the event was ever provided in response to our FOIA requests. There were no criminal charges.

We’re alleging multiple civil rights violations, including unreasonable search and seizure and excessive force, in violation of the Fourth Amendment. Here’s the Complaint, in full.

Does the First Amendment Only Apply to Media? Is There a Right to Record?

Do you have to be a journalist to have First Amendment protections to film in public? Is there a right to record police or other government officials in public? Let me tell you what the federal courts have said…..

To record what there is for the eye to see, or the ear to hear, corroborates or lays aside subjective impressions for objective facts. Hence to record is to see and hear more accurately. Recordings also facilitate discussion because of the ease in which they can be widely distributed via different forms of media. Accordingly, recording police activity in public falls squarely within the First Amendment right of access to information. As no doubt the press has this right, so does the public. See PG Publ’g. Co. v. Aichele, 705 F.3d 91, 99 (3d Cir. 2013); Branzburg v. Hayes, 408 U.S. 665, 684, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972) (quoting Fields v. City of Phila., 862 F.3d 353, 359 (3rd Cir. 2017)).

Under the First Amendment’s right of access to information the public has the commensurate right to record—photograph, film, or audio record—police officers conducting official police activity in public areas. Fields v. City of Phila., 862 F.3d 353, 360 (3rd Cir. 2017) (“The First Amendment protects actual photos, videos, and recordings, and for this protection to have meaning the Amendment must also protect the act of creating that material.” (citation omitted)); See also ACLU v. Alvarez, 679 F.3d 583, 599–600 (7th Cir.), cert. denied, ––– U.S. ––––, 133 S.Ct. 651, 184 L.Ed.2d 459 (2012) (holding that an Illinois eavesdropping statute did not protect police officers from a civilian openly recording them with a cell phone); Turner v. Lieutenant Driver, 848 F.3d 678, 689 (5th Cir. 2017) (“[T]he First Amendment protects the act of making film, as there is no fixed First Amendment line between the act of creating speech and the speech itself.” (quotation omitted); W. Watersheds Project v. Michael, 869 F.3d 1189 (10th Cir. 2017) (agreeing with several sister circuits that recording the conduct of officials in general is protected First Amendment speech); Glik v. Cunniffe, 655 F.3d 78, 79 (1st Cir.2011) (holding there is an “unambiguous[ ]” constitutionally protected right to videotape police carrying out their duties in public); Smith v. Cumming, 212 F.3d 1332, 1333 (11th Cir.2000) (finding plaintiffs “had a First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct”); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir.1995) (recognizing plaintiff’s videotaping of police officers as a “First Amendment right to film matters of public interest”). 

Furthermore, there can be no doubt that the public has the right to record police officers and government officials from the vantage point of standing on their own private property – and indeed, standing in their own front yard, or within their home.

Can the recordings then be seized by police?

Recently, the Fourth Circuit observed in the context of a claim of seizure of cell phone video footage by law enforcement, that we live “[i]n an era in which cell phones are increasingly used to capture much of what happens in daily life” and that such recordings are protected from seizure by law enforcement under the Fourth Amendment. Hupp v. State Trooper Seth Cook, 931 F.3d 307, 329 (4th Cir. 2019).

But, keep in mind, they could still be subject to seizure without a warrant under the exigent circumstances doctrine…..

Police Officer Fired and Charged with Perjury after Deposition

Remember my video with Kentucky Lawyer Chris Wiest about his excessive force lawsuit involving the Kentucky State Police back in March? One of the police officers involved was fired and charged with perjury after he was caught lying in the deposition in Chris’ civil lawsuit.

A former Kentucky State trooper has been criminally charged with perjury after denying under oath that he beat a man with a flashlight in April 2020.

Thomas Czartorski was named in a lawsuit alleging troopers used excessive force against Alex Hornback of Shepherdsville while executing a bench warrant. The lawsuit also alleged that Hornback’s parents recorded the officers beating him, and that a trooper deleted the footage. But a home security video captured the incident. A lieutenant with the Kentucky State Police accused Czartorski in a complaint filed Thursday of lying during a January deposition when he said he didn’t use any force during the arrest. Czartorski turned himself in Friday afternoon at the courthouse on a felony charge of first-degree perjury, according to his attorney, Josh Schneider. The charge carries a penalty of one to five years in prison.

https://kycir.org/2021/07/09/this-former-ky-trooper-denied-using-force-under-oath-the-video-says-he-did/

Here’s a video I uploaded yesterday on it – Freedom is Scary Ep. 67:

“To whom it may concern” letter detailing the fact that it is illegal under federal law to mandate COVID vaccines

Here is a “to whom it may concern” letter for those in West Virginia who are being threatened with, or subjected to, COVID vaccine mandates:

Thanks to Chris Wiest in Kentucky for the assistance in generating the substance of the letter.

Updates on the Drug Task Force Search Case and the Family Court Search Case

On Friday we filed a lawsuit against Putnam County and the individual members of their “SEU” – Special Enforcement Unit – for an illegal search of a family’s residence in Putnam County, West Virginia in April of 2019. These were the same guys from the Dustin Elswick video. Here’s the full complaint (sorry it was omitted earlier, but NOW here it is):

Then this morning we received motions to dismiss from the defendants in the Family Court Judge Search case. Here’s the memorandum arguing for dismissal for the judge, based on judicial immunity, and somewhat surprisingly, the 11th Amendment:

Lastly, here’s the memorandum arguing for dismissal for the county and the deputies, arguing qualified immunity:

We’ll go through these in tonight’s live video update in Freedom is Scary, Episode No. 58. Join me live at 6:30 p.m. ET:

Federal Suit Filed Against Family Court Judge and Deputies for Warrantless Search and Seizure

Yesterday we filed suit against Family Court Judge Louise Goldston of the 13th Family Court Circuit, based out of Beckley, Raleigh County, West Virginia, as well as three deputies with the Raleigh County Sheriff’s Office, for federal civil rights violations which occurred during the March 4, 2020 search of Matt Gibson’s home following a post-divorce contempt proceeding filed by his ex-wife. If you haven’t been following the case, you can learn more here.

Here’s the full complaint, filed in federal court in the Southern District of West Virginia. It makes claims of violations of the 4th Amendment, 1st Amendment and 14th Amendment. Also a defendant is the ex-wife’s lawyer for conspiracy with a state official to violate Mr. Gibson’s civil rights.

Yesterday night we went over the lawsuit in detail on the YouTube channel in episode no. 50 of Freedom is Scary:

Update on the Jefferson County Superintendent Lawsuit

The first of my two clients in the federal civil rights lawsuit filed yesterday against the superintendent of Jefferson County Schools had her disciplinary hearing today, where the “evidence” was presented of her alleged involvement in the violence at the U.S. Capitol last Wednesday. Apparently the only evidence presented was a conspicuously-absent anonymous “report.” According to the attorney at the scene, Bondy Gibson, the superintendent who leveled the accusations, refused to provide a copy of the allegations, the name of the person making the allegation, or any of the social media posts the individual referenced.

Apparently, what actually happened, is that the Board office reviewed Pam McDonald’s social media page and came to the same conclusion that all have, which is that Pam did nothing wrong and broke no laws. Unfortunately, however, the damage has already been done, and our lawsuit will continue. For instance, here’s a screenshot of a TV news story from this morning about my two clients:

Here’s another disgusting media report from WVDM, which was the direct recipient of the leak from the Jefferson County Schools smearing my clients. It announced that my clients “participated in riots in Washington D.C.” Can you imagine, your friendly school bus drivers may have rioted through the Capitol?

In case anyone misunderstood, in the WDVM article above, this was the exact quote:

The statement details that Superintendent Bondy Shay Gibson was made aware on Friday of the staff members’ participation that left the Capitol Building in shambles.

It turns out that no such evidence exists, apparently. But what about the smear letter the superintendent wrote yesterday which was provided to WV Metro News, where she said this:

On Friday, January 8, 2021, I received such a report that two employees had posted threatening and inflammatory posts on their Facebook pages, had been present at the Electoral protest march on Wednesday that erupted in violence, and had violated our leave policy.

Wait, first . . . about the leave policy…. how would one go about reporting whether one of your employees violated your leave policy? Do random people have access to your employee personnel files? Or was this “person” who made the report “a friend” of yours. Sort of like the “friend” prefaced in embarrassing Dear Abby letters? Does this friend happen an office in the school administration building with a sign on the door saying something like, “Superintendent?”

Secondly, about the “threatening and inflammatory posts” my clients supposedly made….. Where are they? I’m sure they were just misplaced….. They must exist, right?

If the goal was to drag these ladies through the mud, merely for their political affiliation and viewpoints, I guess it was a job well-done. They received all sorts of well-wishes from the tolerant and compassionate commenters among us. If only someone saved some sort of record of the ugly comments which were directed at my two innocent clients in the comments section of these defamatory pieces….. That would be a great way, not only to document the ugliness of the situation, but also to hold accountable the nasty individuals behind the keyboards who so recklessly and maliciously love to destroy the lives of their fellow human beings, based only on political disagreement.

It would be a shame if some of them ended up getting sued and held accountable for their online bullying….. Just a thought.

Jefferson County Schools Superintendent Violates First Amendment Rights of Two Employees and We Sue

You may have seen in the national news, and on social media, that the Superintendent of Jefferson County Schools, in Jefferson County, West Virginia, decided to come after school employees who attended the Trump Rally on January 6, 2020. At least two employees, both long-time school bus drivers, who attended the rally, and who never entered any prohibited areas near the Capitol, never witnessed violence, never participated in violence, destruction of property, trespassing, etc., were suspended on January 8, 2020, and remain suspended as of this time.

This afternoon we filed a federal Section 1983 civil rights lawsuit against the Superintendent, individually, for money damages. Here’s the filing:

Here’s a live video filmed just after we filed the lawsuit, going over the Complaint:

Also, I’ll be on the Tom Roton Morning Show Tuesday morning at around 7:30 a.m. It’s always a good discussion on hit show…..

Here’s where the school administrators leaked the false allegations against my clients to the TV News, despite it supposedly being a “personnel matter”:

Here’s an article from the WV Metro News, discussing the letter she released today, at about the same time we filed suit.

And here’s the letter itself, doubling down, essentially:

This is a blatant attack on the core of the First Amendment: the right to assemble and protest in a traditional forum of public speech, such as the U.S. Capitol. These clients did not pass into any prohibited area that day. They committed no crime while in Washington D.C. They’re exercise of free speech had absolutely nothing to do with their employment as school bus drivers for Jefferson County Schools. They just so happened to have a political activist superintendent.