SUIT CITES BIZARRE REASONING FOR FIRING
By Juan Perez Jr.
Omaha World Herald
June 30, 2010

A former employee of Omaha’s largest homebuilder has filed a lawsuit alleging that the company’s chief executive officer forced a religious agenda on workers and fired her because her unborn child carried “negative energy.”

The lawsuit was filed in U.S. District Court by Jammie D. Harms of Lincoln, who worked as administrative assistant to John J. Smith, chief executive officer of HearthStone Homes.

Harms alleged that Smith and other company managers “actively attempted to create a spiritual, religious work environment based on concepts incorporating universal energy, concepts of reincarnation, and intuitive spiritualism.”

Smith told employees that past lives can explain current behaviors, and they can be understood through positive and negative force fields, according to the lawsuit.

Harms, who alleges religious and pregnancy discrimination, is seeking back pay, reinstatement and compensatory and punitive damages.

An official with HearthStone Homes denied any wrongdoing and said Harms was fired, along with many other workers, because of the economic downturn that continues to plague the U.S. housing market.

Harms, hired in April 2008, believed she was required to follow these religious beliefs in the workplace and had to attend mandatory training sessions that reinforced the beliefs, said her attorney, Doug Peterson.

In April 2009, about one month after Harms told her boss she was pregnant, the lawsuit alleges that the following incidents occurred:

• Harms was called into a meeting led by Smith and other company managers. They told Harms that she had a troubling “disconnect” with her fetus.

• Harms was asked to take part in a conference call with an Arizona-based psychic to determine “whether or not negative energy was being created with the pregnant plaintiff because she had a male boss versus a female boss.”

• Smith consulted with a chiropractor and “self-described energy worker” who told Smith he shared a former life with Harms’ unborn child and suggested that he “partner” with the baby. Smith declined, saying the baby’s energy was hostile toward him.

Harms, who was paid $45,100 annually, was fired in June 2009.

Neil Smith, a HearthStone vice president who said he is not related to the company’s chief executive, declined to comment on the lawsuit’s allegations.

He said that Harms was let go because of the recession and that she declined the company’s offer of a severance package.

“This would appear to be just her next response as she tries to bring some sort of conclusion to her moving beyond HearthStone,” he said.

Neil Smith acknowledged that the company follows certain practices believed to help employees develop their intuition.

In addition to what he described as coaching sessions that help develop employee potential, he said the company uses massage therapy and creates quiet “meditative-type spaces, where people can take that time to get clear … so they can function at a higher level.”

Though the company’s practices may seem unorthodox, Neil Smith said, they should not be demonized. They even may have contributed to some of the company’s success despite bleak economic conditions, he said.

“The notion of ‘spiritualism’ takes it to more of an esoteric place that I’m not sure is productive,” he said. “We look at the body from a holistic perspective, and there are tons of different resources out there and we’re just open to exploring them.”

The company’s alleged emphasis on spiritualism has been argued before in the federal courts.

The 8th U.S. Circuit Court of Appeals upheld a jury verdict that favored a former HearthStone employee who sued the company for religious discrimination in 2003.

The employee, a Protestant, had alleged that the company fired him because he resisted attending “Mind Body Energy” sessions designed to cleanse his body of negative energy.

Neil Smith, the company vice president, said HearthStone did not want to force its views on any of its employees.

“I’ve not had anybody personally come to me and tell me that it’s been pushed on them,” he said. “We have a pretty open environment here. If someone feels like they had been pushed upon, it’s not while they’ve been working here.”

HearthStone has built homes in Omaha since 1970.

Builder Magazine recently ranked the company No. 28 on its annual Builder 100 list, up from No. 30 in 2008 and No. 64 in 2007, placing the company among the nation’s largest home construction companies.

If you or a loved one have suffered employment discrimination, please call the experienced Nebraska employment attorneys of the Keating, O’Gara Law Firm at 888/234-0621.

From Law.com:

‘Pants Judge’ Loses Wrongful Termination Appeal

Former administrative law judge Roy Pearson Jr. just can’t catch a break in his quest to hold someone accountable for losing his job with the District of Columbia.

Pearson, recall, was the judge who filed a multimillion-dollar suit against a dry cleaner over a lost pair of pants. The suit didn’t go unnoticed. In 2007, Pearson was denied reappointment to his post as a D.C. administrative law judge. Pearson sued, making a host of claims.

When Pearson’s wrongful termination suit was dismissed by the federal district court in Washington, he turned to the U.S. Court of Appeals for the D.C. Circuit. Thursday, a three-judge panel upheld the dismissal of the suit . . . .

“The district court correctly concluded Pearson’s testimony before the D.C. Council and private communication with the Council’s staff were not protected by the First Amendment to the Constitution of the United States,” D.C. Circuit Judges Douglas Ginsburg, Karen LeCraft Henderson and Merrick Garland said in a two-page judgment Thursday.

The judges pointed to a D.C. Circuit ruling last year in an unrelated case where the court said that a public employee speaks without First Amendment protection when he reports conduct that interferes with his job responsibilities. “Pearson did just that,” the panel judges said Thursday.

Pearson’s suit against his dry cleaner was also not protected speech, the appeals court said. “That suit did not involve a matter of public concern; as the district court stated, it was more properly ‘characterized as a personal vendetta against a dry cleaners over a pair of pants.’”

Former Beatrice bank worker wins appeal
Saturday, Mar 14, 2009 – 09:00:17 am CDT
The Associated Press

OMAHA – A federal appeals court has reversed a lower court’s decision against a former Beatrice bank worker who said he lost his job because of his rare voice disorder.

The 8th U.S. Circuit Court of Appeals on Friday said the U.S. District Court was wrong to rule in favor of First National of Nebraska before trial and against Jeffrey Willnerd. There are significant facts in the case that warrant a jury trial.

The case has been sent back to the federal court.

First National is the parent company of First National Bank.

Willnerd, of Beatrice, sued First National in 2005, saying the company’s decision to eliminate his job and refuse to rehire him violated rights guaranteed by the Americans With Disabilities Act.

Years earlier, Willnerd was diagnosed with a neurological voice disorder that made it difficult for him to speak.

First National has said Willnerd’s job was eliminated for economic reasons. The company also said he wasn’t rehired because of the merits of other job applicants, according to court documents.

In 2007, a federal judge granted First National’s request for a summary judgment in its favor, without a trial.

But, said the three-judge appellate panel, “Because reasonable jurors could resolve these outstanding questions in Willnerd’s favor and conclude he is entitled to relief on his claims, we reverse.”

Doug Peterson, Willnerd’s Lincoln-based attorney, said he was encouraged by the decision and believes the court analysis was very complete.

Phone messages left with First National’s attorneys were not immediately returned.

Willnerd began working at a Beatrice bank in 1982. He was primarily responsible for real-estate loans and some commercial and installment lending. In 1983, First National acquired the bank.

In 1999, he noticed his voice was starting to cut out and worsened in following years to the point where he could only whisper. He interacted regularly with customers and didn’t request any accommodations or seek different bank duties.

First National has said that during the same period between 1999 and 2003, the bank branch’s performance suffered. The company realized it needed to cut expenses or boost income. In 2002, it began moving some duties of smaller branches to Omaha and that included some of Willnerd’s responsibilities.

Willnerd’s job was eliminated in September 2003. Later that year, he was diagnosed with a rare neurological voice disorder.

A supervisor later wrote in a memo that a downturn in the economy forced the move. He also described the merits of Willnerd and other employees and concluded that Willnerd’s position as a sales representative was the most expendable, according to court documents.

In total, Willnerd applied for 22 positions with First National between December 2003 and October 2005, but he raised issue with only four instances in his appeal.

“It is not necessarily the case that Willnerd was more qualified than the person actually hired, and at the end of the day, a jury may well accept First National’s proffered rationale,” the panel wrote.

If your employment rights have been violated, call the attorneys of Keating, O’Gara, Nedved, & Peter at 888/234-0621 for a free consultation.