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No Title VII religious bias ‘as perceived’ claim for Christian principal who implemented ‘mindfulness practices’

By Kathleen Kapusta, J.D.

A plaintiff may not pursue an “as perceived” claim for religious discrimination under Title VII, a federal district court in Georgia declared, finding that the plaintiff here, an assistant principal who implemented “mindfulness practices” at her school based on yoga and meditation, did not allege that her employer believed she was Buddhist or was seeking to practice or promote Buddhism or that she was dismissed based on her religion, which was Christian. Nor could the employee, who was transferred to a different school after parents made religious-based complaints about her “evil practices,” advance her retaliation claim, said the court, sustaining in part and overruling in part the school district’s objections to a magistrate’s report and recommendation (R&R) that would have allowed those claims to advance (Cole v. Cobb County School District, January 18, 2018, Duffey, W., Jr.).

Mindfulness practices. In order to reduce stress and encourage relaxation among the elementary school’s teachers and students, the employee and several teachers, during the 2014-15 school year, implemented a “mindfulness program” that included breathing and stretching exercises based on yoga and meditation. They also decorated a faculty room with, among other things, soft lighting and peaceful music. Not long after, the employee became a licensed reiki practitioner, opening a side business offering reiki services to the public.

In February 2016, the school informed parents, stating that mindfulness practices included “piping music through the hallways,” “decorating and painting,” “yoga sequences,” and “mindful quiet time.” After implementing these practices, the school documented a 33-percent decrease in disruptive behaviors and policy violations for the period spanning November 2015 through early March 2016.

Prayer rally. During the 2015-16 school year, some parents who attended church with the district superintendent and the school board chair made religious-based complaints about the mindfulness practices. In February 2016, the district received emails from parents stating that the employee was a Buddhist and was attempting to indoctrinate their children with Buddhism. The following month, several parents held a prayer rally on school grounds “for Jesus to rid the school of Buddhism,” and the next day two women stood outside the employee’s office with their hands on her window praying. Community members also posted selectively chosen passages from her personal business website to attack her “evil practices.” The controversy attracted national attention from the media.

Can’t heal if she stays. Also in March, the principal held a meeting open to all parents to explain mindfulness and answer questions. After the meeting, an attendee stated that he could not see how the school community could heal if the employee were allowed to stay. The school also received support from parents, teachers, and other educators praising the employee and her work. Nonetheless, the district halted all mindfulness practices and the employee was transferred to another school that added an hour to her daily commute.

The R&R. She subsequently sued, asserting claims under Title VII for reverse religious discrimination and retaliation along with claims under the First Amendment’s Free Exercise and Establishment clauses. In the R&R, the magistrate concluded among other things that she could bring a “perceived as” discrimination claim under Title VII; she sufficiently pleaded a retaliation claim; the defendants failed to sufficiently challenge her Establishment Clause claim; and she sufficiently alleged municipal liability.

Reverse religious discrimination. Addressing the defendants’ objections to the R&R, the court first noted that the employee argued she was transferred to a lower performing school 16 miles further from her home because of the false allocations she held “unacceptable” religious beliefs including Buddhism and because her yoga and reiki practices were offensive to the religious faiths of board members and the superintendent. In finding her allegations sufficient to plead a claim of reverse religious discrimination, the magistrate cited a statement from the Eleventh Circuit’s decision in Jones v. UPS Ground Freight that “[A] harasser’s use of epithets associated with a different ethnic or racial minority than the plaintiff will not necessarily shield an employer from liability for a hostile work environment.” But, said the court, this was unpersuasive as applied to the facts here. Although Jones involved a misconceived “racial slur” based on the plaintiff’s dark complexion, there were also other instances of harassment linked directly to the plaintiff’s African-American descent.

And while the magistrate also relied on the Supreme Court’s decision in EEOC v. Abercrombie & Fitch for the proposition that Title VII prohibits certain motives regardless of the state of the actor’s knowledge, this case was also inapplicable because it concerned a claim for reasonable accommodation and because the aggrieved individual did, in fact, hold the religious belief the defendant found objectionable and was the claimed motive for discrimination. Here, observed the court, there was no evidence the employee was discriminated against based on her religion and the defendants did not perceive she was a member of an actual or perceived protected religious class of Buddhists. Declining to import an interpretation of Title VII that is not supported by its plain language, the court sustained the district’s objections, finding that a plaintiff may not pursue an “as perceived” claim for religious discrimination under Title VII.

Failure to conform. It found similarly unpersuasive the magistrate Judge’s findings and recommendation regarding the plaintiff’s claim for failure to conform to a particular religion, noting that neither the magistrate nor the parties cited any controlling precedent supporting that a failure to conform claim based on a perceived religion is enforceable in the Eleventh Circuit.

Retaliation. As to the employee’s claim that the defendants violated Title VII when they retaliated against her by declining to provide institutional support against the baseless accusations and by transferring her, the court explained that based on its holding that a “perceived as” religious discrimination claim is not actionable under Title VII and that she did not state a plausible reverse discrimination claim, her retaliation claim based on her perceived religion or alleged reverse discrimination also failed.

Even if she were allowed to proceed on her retaliation claim based on her perceived religion, the court, contrary to the magistrate’s findings and recommendation, found she did not allege facts sufficient to state a Title VII retaliation claim. With regard to her claim that the defendant’s failed to protect her from the “wild and baseless accusations,” the court pointed out that the community members who made the accusations were not her employer for Title VII purposes and her complaint about their threats was not opposition to an unlawful employment practice. As to the transfer, she did not allege any facts that she opposed it or otherwise communicated to the defendants about it, either before or after it occurred. Accordingly, this claim was dismissed.

Establishment Clause. The employee also alleged the defendants violated the Establishment Clause by failing to remain neutral and by adopting the religious perspective of a particular group of parents who complained about her mindfulness practices, and by allowing Christian practices to take place on school grounds, while not allowing her the same opportunities with regard to her secular yoga and mindfulness program. Agreeing with the magistrate that this issue was not properly before it, the court found that while the defendants purported to raise the issue of the sufficiency of her pleadings, they did not submit any legal authority and very little argument to support their motion to dismiss. Because it could not evaluate whether she adequately pleaded her claim, and assuming the facts alleged were true, the court found a plausible Establishment Claim had been alleged, albeit barely.

Official capacity claims. Alternatively, the defendants argued that even if she stated a claim for a First Amendment violation, it failed as a matter of law because she did not allege a basis for assigning liability to the district or the superintendent in his official capacity. She alleged the board and superintendent capitulated to the complaining parents’ demands and voted to move her to another school. Here, the court found that while she may ultimately need to show that a majority of the board members were motivated by an impermissible reason, it agreed with the magistrate the facts alleged were minimally sufficient to plead municipal liability.

Other claims. Addressing sections of the R&R to which no party objected, the court agreed with the magistrate that the employee’s Free Exercise Clause claim should be dismissed as she admitted she was a practicing Christian and that she did not believe the mindfulness practices were religious or based in religion. The court also dismissed the superintendent from the case finding that, according to her complaint, he could not have been the decisionmaker and that she failed to sufficiently plead he was not entitled to qualified immunity.