ABEERA FARAJ V. CEDAR CREST MEDICAL CENTER

Abeera Faraj, a 26 year-old Caucasian had worked for Cedar Crest Medical Center as an LPN for the past eight years prior to her termination from employment. Cedar Crest has over 500 employees. When she initially applied for employment with Cedar Crest, her legal name was Abigail ("Abby") Farmer. Five years ago, however, she had met and married Abdula Faraj, a native of Kuwait (but a naturalized American citizen) and an activist in the local Muslim community. Shortly after they were married, Abeera gave birth to the couple's first child, Ahmad.After a couple of years of spiritual searching, Abby decided to convert to the Muslim Faith and changed her name two years ago.

Although Abeera initially experienced some degree of separation from her co-workers after her conversion, there was no overt discrimination or harassment - just more of a "cold shoulder" from workers with whom she used to be close and friendly. Many of her co-workers felt that Abeera's "conversion" was not truly authentic, but merely a desire to please her new husband, who was known to have somewhat of a domineering personality. In fact, Abeera did not initially request break periods for the prayer time required pursuant to her new faith.

About a year prior to her termination, Abeera began to feel more separation and indeed animosity from her co-workers. This coincided with recent developments in the local news. Specifically, Abdula was at the center of a local zoning dispute regarding the relocation of a new Islamic Center in the growing city where Cedar Crest was located.Zoning permits had been issued for the new development and some excavation on the site had begun. However, opponents of the Center, alleging various violations of the state's open meeting law by the local planning commission, had obtained a preliminary injunction halting construction. Court hearings flooded the local news stories. The news coverage of this issue increased exponentially when various pieces of excavation equipment at the site were set afire. Abdula, with Abeera often at his side, was frequently interviewed on television at the site.

Over the next six months, Abeera's co-workers became more "territorial". Whereas the nurses on her floor had traditionally worked and helped each other out when workload fluctuated, now they were not so ready to help out Abeera when she got behind. Conversely, it seemed to Abeera that the other ladies were more than willing to help out each other in those instances. Again, however, there was no overt verbal harassment. The closest thing to verbal harassment were a couple of instances when one co-worker made a reference to Abdula's activities as not reflecting positively on Abeera's reputation at work; and another co-worker had made a reference to Ahmad's mixed ethnicity and how difficult it could be to raise him in an anti-Muslim culture. Additionally, when referring to Abeera by name, several of the ladies would emphasize the Muslim portion of her new name, AbEERA, instead of her old name, Abby.

As these incidents were somewhat vague and isolated, Abeera did not make any complaints of these activities to her supervisor, Mary Allen.Mary's husband was a local political activist as well; and although he was not visible in the local debate over the Islamic Center, Abeera felt confident he was not open-minded when it came to the idea and that his political persuasion would be averse to the concept. On the other hand, the recent treatment Abeera had received from her co-workers did drive her to be more dedicated to new-found faith. As a result, Abeera now wanted to be allowed the opportunity to take time to offer prayers during the work day. Given the frequency and length of prayer and preparatory activities, she knew that prayer time would not comport with Cedar Crest's lunch time and break policy, but she asked Mary anyway.

Abeera's assumption was correct, and Mary told her that allowing her time off to pray was not consistent with Cedar Crest's policy on when lunch and breaks could be taken; that it would be disruptive to the workload in the department; and further that there was no place suitable for Abeera to offer her prayers.In response, offered to utilize her accrued vacation pay for the approximate time each day she would be in prayer (in addition to her regular lunch and break time). Mary refused this request as Cedar Crest policy required vacation pay to be taken in increments of no less than one hour. Abeera then offered to take the time off without pay, which Mary also refused, citing the unfairness to other workers in the department.Mary said: "If I did that, the smokers would want more smoke breaks".

Notwithstandin the time issue and still seeking the opportunity for prayer, Abeera suggested that she be allowed to go to the Chapel for prayer time, if only for a couple of times per day, until the matter could be resolved through higher channels. Mary refused this as well, indicating that it would be inappropriate, since the Chapel had a cross in it, and further that it would be disruptive to patient's families for whom it was intended, and not staff. Abeera then requested that she be able to offer prayers in vacant hospital rooms, which Mary again refused, citing difficulties with making those types of arrangements with other nursing staff and housekeeping. Somewhat exasperated by Abeera's persistence, Mary then asked: "Abby, are you sure this is something you want, or is it something you feel pressured in to by Abdula"? Why are you making these requests all of a sudden? Abeera assured her it was something she felt deeply compelled to do. She further told Mary that she felt she was being discriminated against since the law required Cedar Crest to accommodate her request to practice her religious beliefs. Abeera (upon Adbula's suggestion) then filed a complaint with Cedar Crest's Director of Human Resources. The investigation into that complaint had commenced but was not concluded before Abeera' termination, as described below.

During the period of wrangling over Abeera's request, one of the local news stations began an investigation of the local leaders of the Islamic Center in order to ascertain if there was any evidence of terrorist activities. The investigation included criminal background searches of Abdula as well as Abeera. The investigation revealed that Abeera had indeed been convicted of a felony fifteen years ago during a time when she was living with a man who was involved in criminal activities. Specifically, Abeera had forged a stolen check, ostensibly at the man's request, and had pleaded guilty. She served no jail time, but was placed on probation or pretrial diversion for five years. This was reported on the local television news.

At approximately this same time, Cedar Crest made the decision to implement a new background check policy. (It is unclear at this stage of the proceedings when Cedar Crest first began considering this policy change). Cedar Crest had not performed background investigations previously, but decided to conduct them on all current and prospective employees in sensitive positions, including those departments of the hospital directly engaged in controlled substances and financial matters. The previous policy simply asked on the application whether the applicant had been "convicted of a felony". Since Abeera had plead guilty, she did not consider herself as having "been convicted", so she answered "no" on her application. Under the policy any applicant or employee with a felony conviction involving fraud would be rejected and/or terminated. Abeera signed the necessary authorization form, and her background check obviously came back positive for the previous felony. She was then terminated for "Falsification of company documents. Violation of background check policy". Only one other employee was terminated under the new policy - a pharmacy tech who had a previous drug conviction for possession of cocaine for resale, and who was still on probation. Through a rumor, Abeera has heard of an African-American employee in the accounting department with a criminal conviction who was not discharged.

Abeera has now filed a charge of discrimination with the EEOC. She alleges discrimination and harassment in the terms and conditions of her employment based on race, religion and national origin; and religious discrimination against Cedar Crest for failure to accommodate her request for observance of her religious practices; and retaliation for opposing unlawful practices under Title VII. At the time of the EEOC mediation, Abeera has been out of work for nine months. She was making $40,000.00 per year, and despite her best efforts to obtain alternative employment, she has been unable to find anything, which she believes is due to the adverse publicity surrounding the publication of her prior criminal record in the news. There has been absolutely no discovery conducted in this case as it is in the EEOC mediation process. It is anticipated that the case will take two more years before it ever gets to trial. Legal fees through trial can be estimated to be $100,000.00 for each side. Cedar Crest is confident that the case will be dismissed at summary judgment, which means its legal fees will only be $50,000.00.

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