Author: Jonathan L. Bobbitt

Jerton Evans has been coaching football a long time. He spent his college years playing for the University of Virginia, but when his professional career stalled, he obtained a degree and began picking up coaching jobs in different areas. In 2015, he took a position at Claiborne High School, where he taught English and coached the Bulldogs football team.

On April 29, 2016, Jerton Evans was fired from both positions, teacher and coach. He has since filed a wrongful termination lawsuit, according to Claiborne Progress, asking to “be restored to the same or comparable employment,” or, if that proves “impractical… [to] be awarded front pay for his wrongful termination.” According to Mr. Evans, he lost his position because he is black, and his termination is a violation of the Tennessee Human Rights and Disability Act. His lawsuit seeks damages up to $750,000.

Under the Act, which is very similar to Title VII of the Civil Rights Act of 1964, an employer in Tennessee cannot “fail or refuse to hire or discharge any person or otherwise to discriminate against an individual with respect to compensation, terms, conditions or privileges of employment because of such individual’s race, creed, color, religion, sex, age or national origin.” Mr. Evans alleges that the Board of Education singled him out because of his race, treated him differently because of his race, and attempted to “reduce [his] job functions” in a way that would encourage him to leave the position voluntarily.

The case is complicated

Mr. Evans did not give examples of the discriminatory practices against him in his statement (which, as employment attorneys, we agree was the right thing to do). But the lawsuit itself may prove more complicated than you think. First of all, the Bulldogs only won two games while he was Head Coach. A case could be made that he failed in that role, and the school was right to let him go. On the other hand, Mr. Evans almost tripled the amount of students involved in the football program when he started as Head Coach, bring the number from 13 to 36. It takes more than a year to train new players, and nearly 2/3 of his team was new.

He also made a noticeable amount of purchases for the football team, despite not having a budget for those purchases. However, Mr. Evans claims that all purchases were approved by his principal at the time, Jody Goins, and that no further purchases were made once Claiborne’s new principal issued a freeze on accounts.

Furthermore, no mention of Mr. Evans’ ability as an English teacher is mentioned by him or by the school in the news articles, and yet he lost both positions. He was replaced as Head Coach with Nathan Medlin, who had been hired in April to coach the girls’ basketball team. So the school has admitted (through deeds, if not words) that the two positions do not need to be posted together; after all, they simply gave the position away to another employee of the school. While much has been made of Mr. Evans losing the position of Head Coach to a white colleague, what we would like to know is, why did he lose his position as English teacher as well? If one former student interviewed by WATE.com is correct, then Mr. Evans took his role as an educator seriously, and was beloved by his students.

We will be watching this case closely, because we understand the challenges involved in wrongful termination lawsuits. At the Gilbert Firm, we routinely fight against injustices done to Tennessee employees, and advocate on their behalves. If you have been wrongfully terminated because of your race, your gender, your religious beliefs, or for any reason at all, we may be able to help you. We invite you to call 888.996.9731, to contact Justin Gilbert, Michael Russell or Jonathan Bobbitt, or to use our contact form to make an appointment with an experienced Tennessee discrimination attorney at one of our offices in Nashville, Chattanooga, Memphis, Jackson or Knoxville.

The Supreme Court is called upon to handle some of the most complex cases of our time. As it turns out, we need them to handle cases where common sense should have taken care of the problem in the first place.

A New Jersey police detective named Jeffrey J. Heffernan did a favor for his elderly mother; he picked up a sign for a mayoral candidate that she could put on her property to show her support. Mr. Heffernan was reported to his supervisor for the sign, and then demoted. Mr. Heffernan claims this is because his superiors believed the sign was for his own use and reflected his support for a particular political candidate.

This seems like an easy case, does it not? Mr. Heffernan could simply explain that the sign was for his mother – no harm, no foul. Instead, he was demoted to patrol officer. In the words of Justice Breyer, “Heffernan’s supervisors made a factual mistake” by assuming his “overt involvement” in the mayoral candidate’s campaign. Mr. Heffernan sued, lost and appealed. The Supreme Court found for Mr. Heffernan and remanded the case “to the lower courts to explore whether the city might have demoted Mr. Heffernan on other, lawful grounds,” as reported by the New York Times.

Why is this case so important?

For the first time, the Supreme Court ruled that an employee is protected if the employer believes that an employee engaged in protected activity, even if he or she did not.

Let us start with five basic truths:

1. Heffernan is employed by the Paterson Police Department.
2. He is also a U.S. citizen, and therefore protected by the First Amendment.
3. The First Amendment protects political speech.
4. A lawn sign supporting a particular political candidate counts as speech, and is therefore protected.
5. Heffernan was demoted by his superior at the Paterson Police Department for allegedly engaging in political speech through the use of a lawn sign, even though the sign was for his mother.

The retaliatory actions of the Paterson Police Department are illegal under the First Amendment. As a general rule, a public employer cannot retaliate against someone because he or she exercises his or her First Amendment rights (speech, political participation, association, etc.). But what if an employer mistakenly believes that an employee engaged in such activity, but he or she really did not, as is the case here? The PPD, like so many other employers, defended their choice by saying that technically, the employee did not engage in “protected activity.”

In other words, Mr. Heffernan was not exercising his First Amendment rights to free speech, and therefore was not engaged in an activity protected by the First Amendment. To that end, he should not be able to prevail in his claim that his demotion was retaliatory. The lower court agreed. The Supreme Court did not.

This ruling is so important because as “obvious” as the answer might seem to an outsider, cases like these take place all around the country every day. We have a long and complicated history with political speech, but we also have the right to engage in it. Will it turn out that there is an underlying cause for why Mr. Heffernan was demoted? Perhaps. But if the only reason was retaliation against an employee who may or may not have been engaging in a federally protected activity, then this Supreme Court ruling could ripple throughout the country, giving support to employees everywhere who fear speaking out in case it costs them their jobs. This decision sets a precedent for protecting workers’ rights, because as Justice Thomas says, “an attempted violation of an employee’s First Amendment rights can be just as harmful as a successful deprivation of First Amendment rights.”

We could not agree more.

The Gilbert Firm is recognized throughout Tennessee for its advocacy on behalf of workers. If you have been the victim of discrimination or harassment, or if you believe that you were wrongfully terminated for your job, we may be able to help. To schedule a consultation with Jonathan Bobbitt, Justin Gilbert or an employees’ rights attorney in Nashville, Chattanooga, Memphis or Jackson, please contact us.

#employeerightsattorney #njpoliceofficer #demoted

Last December, Cargill Meat Solutions Plant fired 150 workers. Depending on which news source you read, they were fired for walking off the job, for failing to report to work, or for wanting to pray. The details change from source to source (Was it 150 workers? 190 workers? No one seems to know for sure), but certain salient points are being repeated by almost every source: every worker who was fired was a practicing Muslim, and the Council on American-Islamic Relations (CAIR) is representing about 100 people who believe they were fired because of religious discrimination.

A quick recap of the events

Cargill employs hundreds of Somali refugees at its Fort Morgan plant. To accommodate the workers, Cargill has set “aside two cubicles for prayer and grant[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][ed] a ‘vast majority’ of break requests” to pray, according to the New York Times. However, because of the nature of the assembly line work, a company spokesperson told the Times “occasionally, there are times when staffing limitation does not allow granting of prayer requests.”

According to the Daily Kos, there has been a “long standing policy” that observant workers could take 5-10 minutes of their own break time to use the reflection room for their prayers. The Denver Post, however, reports that the accommodation requests depended on the “changing factors of the plant,” and that this had been clearly communicated to the workers. The spokesperson, Michael Martin, also told the Denver Post “We know that some of our employees would like a guaranteed prayer time every day….That is not the legal requirement, and it would be impractical to accommodate this without shutting down the production line.” The company would allow two workers from each section to pray at a time to keep things moving in the plant.

The trouble arose when a new shift supervisor told the workers to go home if they wanted to pray. (Eleven workers did.) This is reflective, says CAIR representative Jaylani Hussein, of Cargill’s inconsistent policy application.

But is it discrimination?

Title VII of the Civil Rights Act of 1964 says “The term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business” (emphasis ours).

At first glance, it looks as though Cargill did its best to accommodate the religious observances of its workers in a way that allowed the company to continue its steady production. Obviously, the assembly line could not shut down entirely at any given time, so allowing break requests for a couple of employees at a time worked well, since the other employees (who might request their breaks next) picked up the slack during those minutes. Even the Teamsters Local 455, which represents the workers, agrees that Cargill accommodated the workers.

However, the employees say (as does CAIR) that there was a shift in attitude and policy this past December: “Maybe Cargill never changed its policy, but to these employees, they feel whatever the policy is, or how it is implemented, there was a change put in place,” Hussein said (emphasis ours).

The issue might hinge on whether or not the new supervisor simply did not understand the policy well enough, leading him or her to deny requests. It might also be that Cargill is trying to play fast and loose with the rules. Cargill did put out a press release about its policies on January 8, 2016:

“Cargill Beef’s religious accommodation policy remains unchanged… Accommodation requests are made to work area supervision and granted based on production line staffing and other factors that may vary day-to-day. Although not guaranteed, and not part of the meal and break periods that are part of the plant’s union agreement with Teamsters local 455, the vast majority of religious accommodation requests are routinely granted during each of the plant’s two weekday work shifts.”

In that same release, the company announced that it “has updated its policy related to the time interval between the date when an employee is terminated and the date when that person may become eligible to reapply for a position with the company,” so that the workers who left do not have to wait six months before applying again.

It looks as though Cargill is trying to do the right thing, but it could be a case of “too little, too late.” After all, this is not the first time the company has been accused of discrimination. Cargill believes the walkout was the result of a miscommunication; the former employees may feel differently.

At the Gilbert Firm, we advocate on behalf of employees facing discrimination at their jobs. Please contact us to speak Jonathan Bobbitt or Justin Gilbert, or to schedule an appointment with an experienced Tennessee discrimination lawyer. We maintain offices in Nashville, Chattanooga, Memphis and Jackson for your convenience.

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