Metropolitan News-Enterprise


Tuesday, April 27, 2004


Page 1


Firing Employee for Anti-Gay Harassment Was Not Religious Discrimination, Ninth Circuit Says


By KENNETH OFGANG, Staff Writer/Appellate Courts


An evangelical Christian who was fired from her job for harassing a gay employee was not discriminated against on the basis of religion, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Evelyn Bodett’s admitted statements to a female subordinate, the court held, supported Cox Communications’ assertion that it fired Bodett for violating its anti-harassment policy rather than because of her religious beliefs.

Bodett worked for Cox’s Phoenix operation, and for its predecessor, American Cable, for 18 years. Her treatment of subordinate Kelley Carson came under scrutiny after Carson accepted a transfer to the company’s Omaha affiliate.

Bodett’s superior, a company vice president who knew that Carson had previously complained to another employee about Bodett’s comments, asked Carson to lunch and inquired why she was leaving. Carson said it was because she was disturbed with how Bodett treated her sexuality.

Not only had Bodett made disapproving comments on multiple occasions, Carson reported, she had persuaded Carson to attend church with her on one occasion and to attend a religious conference.

Carson said she had not complained, the vice president, Mireille DeBryucker, later testified, because “Bodett was her boss and she could not afford to lose her job.”

DeBryucker then took the matter up with other executives, who agreed that if Bodett actually did what Carson alleged, she had violated the anti-harassment policy and should be fired. At a meeting with DeBryucker and the company’s human resources manager, Bodett admitted the truth of Carson’s charges but said “sometimes there is a higher calling than a company policy.”

Bodett was promptly terminated for “gross violation” of company policy. After complaining to the Equal Employment Opportunity Commission, she received a right-to-sue letter and brought an action in the U.S. District Court for the District of Arizona alleging that her termination violated Title VII of the Civil Rights Act of 1964 as well as the Arizona Civil Rights Act and Arizona Employment Protection Act, and that she was subjected to intentional infliction of emotional distress.

In her deposition, Bodett acknowledged telling Carson that homosexuality is a sin, that the turmoil in Carson’s personal life—she had broken up with her partner and was having difficulty paying her bills—was a result of her gay lifestyle, and that Bodett would be “disappointed” if her employee were dating another woman.

But Bodett argued that her comments did not constitute harassment, and that the lack of progressive discipline—which was permitted but not required by the policy—indicated that the firing was pretextual.

U.S. Magistrate Judge David K. Duncan of the District of Arizona disagreed and granted the company’s motion for summary judgment.

Judge Michael Daly Hawkins, writing for the Ninth Circuit, said the magistrate judge was correct.

Bodett, he said, failed to carry her burden of showing an inference of disparate treatment.  Nor, Hawkins said, did the plaintiff show that the stated reason for her firing was pretextual.

“...Bodett’s admitted behavior, taken in isolation of any evidence or argument by Cox, is sufficient to support a reasonable conclusion that Bodett harassed Carson,” Hawkins wrote. Not only did the plaintiff confirm Carson’s account of their interactions, the appellate jurist noted, she admitted realizing that Carson was uncomfortable with her comments and acknowledged she may have violated company policy.

Hawkins went on to conclude that Cox was entitled to summary judgment on the state law claims, noting that Arizona interprets its civil rights act as being generally identical to federal law. And because there was no breach of written contract or statutory violation, there could be no wrongful discharge as a matter of Arizona law, the judge said.

As for the intentional infliction of emotional distress claim, Hawkins noted that Arizona sets a high bar for such allegations, and that a claim of workplace misconduct, even if false, will not necessarily qualify.

Nor, in this case, was Cox’s conduct outrageous even if, as Bodett claims, she was accused of having performed an “exorcism.”

The allegation apparently relates to an incident, which Bodett admitted occurred, in which Bodett closed the door and the two women prayed together. Carson referred to this as the time Bodett “made me born again.”

Hawkins commented:

“Whether the difference in making someone ‘born again’ and performing an ‘exorcism’ on them is so extreme as to ‘go beyond all possible bounds of decency’is doubtful.”

Senior Judge Ferdinand F. Fernandez and Judge Sidney Thomas joined in the opinion.

The case is Bodett v. CoxCom, Inc., 03-15112.


Copyright 2004, Metropolitan News Company