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Archive for the tag “termination”

Refusal To Enter Requested Surname on Birth Certificate Did Not Violate Free Exercise Rights

This is from religionclause.blogspot.com which you can find here:

“In Nix El v. Williams, (D DC, March 30, 2016), the D.C. federal district court rejected a claim by the father of a newborn daughter that his religious rights were infringed when D.C. Department of Health officials refused to list his daughter’s surname on her birth certificate as “Nix El” rather than as “Nix”, the parents’ surname. D.C. statutes require the surname to match that of a family member. Plaintiff, who is a member of the Moorish Science Temple, contended that he wished to add “El” to his daughter’s name because it is a title of nobility. In the suit, plaintiff had asked for declaratory and injunctive relief, compensatory damages of $136 million plus punitive damages of $1 million per day for each day his daughter did not have a birth certificate.”

You can learn more about this issue here.


Montana Court Issues Preliminary Injunction To Allow Parochial School Participation In Tax Credits

This is from religionclause.blogspot.com which you can find here:

“According to The Missoulian, in Montana on Thursday, a state trial court judge issued a preliminary injunction barring the Montana Department of Revenue from enforcing its rule that excludes religiously affiliated schools from participating in the state’s new School Contributions Tax Credit law. (See prior posting.) The Department of Revenue takes the position that participation in the school aid program by religiously affiliated schools violates state constitutional bans on that prohibit direct and indirect payments or appropriations to religious or sectarian schools. ”

You can learn more about this issue here.

Catholic School Principal’s Title VII Suit Dismissed Under “Ministerial Exception”

This is from religionclause.blogspot.com which you can find here:

In Fratello v. Roman Catholic Archdiocese of New York, (SD NY, March 29, 2016), a New York federal district court held that the “ministerial exception” to Title VII of the 1964 Civil Rights Act precludes the former lay principal of a Catholic elementary school from suing for employment discrimination.  Plaintiff alleged that her employment was terminated as a result of gender discrimination and retaliation. In relying on the ministerial exception doctrine as set out in the U.S. Supreme Court’s 2012 Hosanna-Tabor decision, the district court said in part:

There is no dispute that Plaintiff is not a member of the clergy and that she would not be considered a minister for purposes of Church governance. But the issue here is one of U.S., not canon, law, and “minister” for purposes of the ministerial exception has a far broader meaning than it does for internal Church purposes.

You can learn more about this issue here.

Sikhs Sue Over Army Accommodation of Religious Practices

This is from religionclause.blogspot.com which you can find here:

“A lawsuit was filed yesterday by three observant Sikhs who have enlisted in the Army, but who are encountering difficulties in obtaining accommodation to allow them to continue to wear beards, uncut hair, and turbans.  The 54 page complaint (full text) in Singh v. McConville, (D DC, filed 3/29/2016), alleges in part:

[T]he Army has a long pattern and practice of discriminating against Sikhs…. The Army’s regulations promise that soldiers whose religious exercise poses no significant obstacle to the military’s mission will be generously accommodated…. [H]owever, the regulations themselves are defective and foster religious discrimination on a number of levels…. [T]hey force soldiers who need religious accommodations to violate their religious beliefs before they can apply for an accommodation, even if their religious exercises would clearly have no impact on the military’s compelling interests.

The regulations are also … require soldiers to reapply for a religious accommodation every time they have a “transfer of duty stations, or other significant change in circumstances”….. The ambiguity in the regulations also creates an environment where the Army feels free to delay resolving requests for accommodation for long periods of time, leaving future soldiers in limbo and potentially forcing them to forgo other education and career opportunities while they wait for the Army’s decision.

Becket Fund issued a press release announcing the filing of the lawsuit.”

You can learn more about this issue here.

Supreme Court In Unusual Order Floats Alternative Compromise In Contraceptive Mandate Cases

This is from religionclause.blogspot.com which you can find here:

The U.S. Supreme Court today issued an unusual Order (full text) in Zubik v. Burwell and the six other cases consolidated with it, less than a week after the Court heard oral arguments in the case.  In what is apparently an attempt to avoid a 4-4 split in the case, the Court has essentially drafted its own version of a compromise on provision of contraceptive coverage in health insurance policies for employees of religious non-profits, and is asking the parties whether they will buy into it. The Order reads in part:

The parties are directed to file supplemental briefs that address whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.  Petitioners with insured plans are currently required to submit a form either to their insurer or to the Federal Government (naming petitioners’ insurance company), stating that petitioners object on religious grounds to providing contraceptive coverage. The parties are directed to address whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.

For example, the parties should consider a situation in which petitioners would contract to provide health insurance for their employees, and in the course of obtaining such insurance, inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds. Petitioners would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage, and would not be required to submit any separate notice to their insurer, to the Federal Government, or to their employees. At the same time, petitioners’ insurance company—aware that petitioners are not providing certain contraceptive coverage on religious grounds—would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan.

The parties may address other proposals along similar lines, avoiding repetition of discussion in prior briefing…..

Initial reactions from the non-profits suggest that they may be willing to accept this version of the compromise. A press release from the Becket Fund, counsel for Little Sisters of The Poor, petitioners in one of the cases, describes the Court’s Order as an “excellent development.”

You can learn more about this issue here.

Considering Retirement While Paying Child Support

It is becoming increasingly common for people who are approaching traditional retirement age—or are already retired—to have children who are minors. As a result, the prospect of a having to consider an ongoing child support obligation when considering retirement is becoming more common.

The matter of Smedley v. Lowman , 2 A.3d 1266 (Pa.Super. 2010), addressed the matter of retirement and child support directly, and now provides guidance for the same.

In Smedley the obligor father became fully vested in his police department ­pension at the age of 50 and elected to retire at age 52. At the time of his retirement he had a 7-year-old child for whom he had a child support obligation. The obligor’s retirement resulted in his income being cut approximately in half.

It is undisputed law in Pennsylvania that an obligor cannot voluntarily retire in order to justify the reduction of a child support obligation. A voluntary retirement only permits an obligor to pursue a reduction in his obligation. The court found in this matter that the father did not retire in order to have his child support reduced; therefore it could consider whether his reduction in income could warrant or justify a reduction in child support.

 At a child support conference and trial, a child support order was entered assessing the father an earning capacity of his pension plus $200 per month, which reflected a $10 per hour job at 20 hours per week. As this was a finding of earning capacity, the father did not actually have such a job; rather the earning capacity was imputed on him. The father’s only actual income was his pension.

The father appealed and asserted that his retirement income should be the only income considered for a child support ­obligation, as opposed to any additional income imputed on him per a finding of a higher earning capacity. He argued that his ­retirement should not be considered an early retirement, or a voluntary retirement, because he was fully vested when he elected to retire; indeed he was already vested for two years when he retired. As the court has found that the father did not voluntarily reduce his income, through retirement, in order to circumvent his support obligation, the court was free to consider whether the father’s support obligation could be reduced due to his decreased income as a result of his retirement.

In reviewing the facts and evidence, the court found that the father’s reduction of income—his pension was half of the amount of his income when he was employed—was voluntary. No evidence was presented that his employer pressured him to retire or his health made it ­difficult or impossible for him to continue to work. Indeed, the court stated more than once that he was in good health and relatively young.

The court also pointed out that its review was to discern whether the lower court’s decision was an abuse of discretion. To that end, the court observed that the earning capacity the lower court assessed the father, $35,400 per year, which is still significantly less than his prior income of $50,000 when he was fully employed, was not an abuse of discretion.

Finally, the court admonished the father by observing that the father still has a 7-year-old daughter to care for and his ­decision to ­voluntarily retire at a relatively young age and in good health does not somehow take away his obligation to ensure his daughter has adequate support as, ultimately, support orders are, after all, for the benefit and ­interests of children.

The court’s analysis in Smedley was later applied in the matter of Pikiewicz v. Timmers , 106 A.3d 177 (Pa. Super. Ct. 2014). Although Pikiewicz was not reported and is nonprecedential, it does provide insight into the mind of the court on this issue. In Pikiewicz the obligor, a healthy 44-year-old man, elected to voluntarily retire and collect a pension, which reduced his income by nearly $4,000 per month, purportedly to spend more time with his son. The Superior Court of Pennsylvania, upon review and looking to Smedley for guidance, found that while the obligor did not retire in order to circumvent a support order, his voluntary retirement would not warrant a reduction in his child support considering he was in good health and refused to mitigate his reduction in income by securing alternative ­employment. As a result, the obligor’s earning capacity was assessed at his income when he was fully employed. The court bolstered its decision by noting that the support ordered was for the support and best interests of his child and that this obligation remains despite his decision to voluntarily 

Smedley was later reviewed and cited by a recent case called Kutsch v. Anthony, No. 252 (WDA 2016). Granted, the Kutsch matter, too, is unreported and explicitly nonprecedential, but it does provide a glimpse as to how the Superior Court of Pennsylvania may apply Smedley into the future. In Kutsch, the obligor was also retired and, therefore, the court had to consider how that retirement would affect his support obligation. The court, in Kutsch, noted that the obligor’s retirement was due to his failing knees which made it impossible for him to continue to work as a truck driver. As a result, the court found that while his retirement may have been early (he was only 55 years old), it was certainly not voluntary. On that basis the court distinguished Smedley from Kutsch as Smedley dealt with a voluntary retirement. As a result, the court in Kutsch declined to assess an earning capacity to the obligor as it did in Smedley based on an income other than his retirement 

As more and more people are retiring while they still have a legal obligation to pay support to a minor child, it is becoming increasingly important for practitioners to keep a close eye on how this area of the law develops.

Published in The Legal Intelligencer on March 20, 2017 and an be seen here.

Suit Challenges Pennsylvania City’s Abortion Clinic Buffer Zone

This is from religionclause.blogspot.com which you can find here:

“Last week, three women who regularly act as pro-life “sidewalk counselors” outside two abortion clinics filed suit in a Pennsylvania federal district court challenging the constitutionality of Harrisburg’s “Interference With Access To Health Care Facilities” Ordinance.  The ordinance bars congregating, patrolling, picketing or demonstrating within 20 feet of any health care facility entrance, exit or driveway.  The complaint (full text) in Reilly v. City of Harrisburg, (MD PA, filed 3/24/2016) contends that the ordinance violates freedom of expression, free exercise of religion, freedom of assembly, equal protection and due process rights. Liberty Counsel announced the filing of the lawsuit. ”

You can learn more about this issue here.

Court Enjoins Army From Requiring Special Testing of Sikh Officer

This is from religionclause.blogspot.com which you can find here:

“In Singh v. Carter, (D DC, March 3, 2016), the D.C. federal district court, invoking RFRA, granted a preliminary injunction protecting religious rights of an Army officer.  The Army had ordered a decorated Sikh Army captain to undergo costly specialized testing with his helmet and protective mask to assure that his religiously required head covering, beard and uncut hair will not interfere with the functions of the helmet and mask. The court said:

At first blush, the challenged order appears to reflect a reasonably thorough and even benevolent decision by the Army to fulfill its duty of protecting the health and safety of this particular Sikh officer.

Yet, that is far from the complete picture. Thousands of other soldiers are permitted to wear long hair and beards for medical or other reasons, without being subjected to such specialized and costly expert testing of their helmets and gas masks. Moreover, other Sikh soldiers have been permitted to maintain their articles of faith without such specialized testing.

See prior related posting.”

You can learn more about this issue here.

Church Fails In RLUIPA Challenge To Village’s Zoning Ordinance

This is from religionclause.blogspot.com which you can find here:

“In Truth Foundation Ministries, NFP v. Village of Romeoville, (ND IL, Feb. 26, 2016), an Illinois federal district court denied a preliminary injunction to a small congregation serving mainly African immigrants that found itself in violation of the village’s zoning code after it had spent over $50,000 expanding a building it was leasing for use as a church.  The court concluded that the church had failed to show a substantial likelihood of success in its claim that the town’s zoning requirements violate RLUIPA’s complete exclusion, unreasonable exclusion and equal terms provisions.”

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Title IX Religious Organization Exemption Does Not Bar Retaliation Claim Against Catholic High School

This is from religionclause.blogspot.com which you can find here:

“In Goodman v. Archbishop Curley High School, Inc., (D MD, Feb. 26, 2016), a Maryland federal district court refused to dismiss a former high school librarian’s Title IX retaliation claim against the Catholic high school from which she was fired.  Librarian Annette Goodman reported to the school’s administration evidence that another faculty member was having a sexual affair with one of the school’s students. The school fired Goodman claiming that she delayed too long reporting her concerns to the school. Goodman says the firing was an attempt to deflect attention from the school’s indifference to sexual abuse.  The court rejected the school’s claim that Title IX’s religious organizations exemption requires dismissal of Goodman’s lawsuit, saying in part:

The position of the Defendants … is that Title IX’s religious organizations exemption bars any employment discrimination or retaliation claim against them if they define their actions as tenets of their religion. There is a noticeable lack of case authority supporting such a broad application of the religious exemption.

The court also rejected defendants’ claims that their rights under the First Amendment and RFRA would be violated by allowing the suit to move forward. ”

You can learn more about this issue here.

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