The Devil and the Details: Constructive Discharge, Punitive Damages and the Mark Of the Beast

By Kevin P. Murphy

According to Revelation, the wild beast will seduce mankind to follow its evil ways and will cause everyone, small and great, wealthy and poor, free and servant, to have the Mark of the Beast imprinted on their right hand or on their foreheads. Revelation 13:11-18. According to the 4th Circuit, career coal miner Beverly Butcher Jr. had the right to opt out of a new biometric hand scanner policy implemented by Consol Energy, Inc. in light of his sincerely held religious belief that placing his hand in this scanner would mark him as a follower of the antichrist, to be tormented with fire and brimstone for all eternity. U.S. EEOC v. Consol Energy, Inc., No. 16-1230 (4th Cir. June 12, 2017).

Butcher resigned rather than obey the company’s new policy requiring employees to place their hand in the scanner as part of its effort to better track attendance and work hours. The Circuit found it especially significant that the company allowed two employees with hand injuries to opt out of this new policy for disability-related reasons, but only accommodated Butcher by permitting him to scan in with his left hand, rather than his right (since Revelation professes that 666 only appears on foreheads and right hands). These other employees were allowed to punch in a numeric code instead of using the hand scanner at all.

Still, Butcher refused to participate in the program on religious grounds. In response, the company handed him a copy of the scanner-related discipline policy. This policy provided progressive discipline for each missed hand scan, with the fourth miss resulting in “suspension with the intent to discharge.” Butcher understood this as a threat to follow the policy or be fired. Accordingly, he tendered his retirement, rather than risk eternal damnation.

The EEOC found cause on his ensuing Charge of Discrimination and filed suit against Consol itself. When the EEOC rested, the Court dismissed its prayer for punitive damages, holding that no reasonable juror could find “malice or reckless indifference to the rights of Mr. Butcher.”

The jury returned a verdict for Mr. Butcher, finding that Consol failed to accommodate his religious beliefs and that the company constructively discharged him because of his religious beliefs. The jury awarded $150,000 in compensatory damages and the Court awarded $436,860.74 for back and front pay and lost benefits. The Court further entered an injunction against Consol. The 4th Circuit affirmed the District Court on all grounds.

Consol claimed there was no conflict between its hand scanner policy and Mr. Butcher’s religious beliefs. However, the Circuit flatly rejected this argument, finding that this claim amounted to analyzing the correct interpretation of Revelation. Console even argued that the Mark of the Beast only marks the right hand and, thus, it obviated this risk by allowing him to scan his left hand. The Circuit rested upon the fact that jury found that Mr. Butcher sincerely believed the contrary.

Deliberateness Not Required

The Circuit affirmed the jury’s constructive discharge finding without requiring any evidence of “deliberateness”. Since at least as far back as 1972, this Circuit has required the constructive dischargee to prove both objective intolerability of remaining on the job and subjective deliberateness from the employer in creating that intolerable situation “for the purpose of causing her to resign.” J.P. Stevens & Co. v. N.L.R.B., 461 F.2d 490, 494 (4th Cir. 1972).

The Circuit quoted from the Supreme Court’s decision in Green v. Brennan, 136 S. Ct. 1769, 1779–80, 195 L. Ed. 2d 44 (2016) as the source of this significant reversal:

The whole point of allowing an employee to claim “constructive” discharge is that in circumstances of discrimination so intolerable that a reasonable person would resign, we treat the employee’s resignation as though the employer actually fired him. We do not also require an employee to come forward with proof—proof that would often be difficult to allege plausibly—that not only was the discrimination so bad that he had to quit, but also that his quitting was his employer’s plan all along. Id. (internal citation omitted).

Last summer, when the Supreme Court issued its opinion in Green, much of the reporting on the decision focused exclusively on the statute of limitations question—does the statute run from resignation or the earlier last discriminatory/harassing act? The Supreme Court held that it is the plaintiff’s resignation that completes the claim and thus begins to run the limitations period. Id.

But the Court could have answered this question without obliterating the deliberateness requirement, as tort claims, such as IIED for instance, are also incomplete until the last of the elements is complete and the plaintiff has the legal ability to bring a claim. Waddle v. Sparks, 331 N.C. 73, 82–83, 414 S.E.2d 22, 27 (1992); Bryant v. Thalheimer Brothers, Inc., 113 N.C.App. 1, 12, 437 S.E.2d 519, 525 (1993), cert. denied, 336 N.C. 71, 445 S.E.2d 29 (1994); Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 493, 329 S.E.2d 350, 354 (1985).

Instead, the Court went further to foreclose any argument that plaintiffs must also prove that their employer devised their hellish hostile work environment for the purpose of bringing about their resignation, significantly lightening the load in resignation cases. Consol serves as a good reminder that those days are gone.

Grievance Process Irrelevant

The Circuit next affirmed the District Court’s decision to exclude any evidence of Consol’s grievance process that Mr. Butcher did not exhaust before resigning, finding that employees are not required to work under intolerable conditions for any period of time and, specifically, not for the period required to exhaust a grievance procedure.


Consol argued that Butcher had failed to mitigate because he took a job outside the coal industry, thus, guaranteeing the loss of his pension. The Circuit dismissed this argument, as Butcher sought jobs both within and without the coal industry in an effort to get back on his feet as soon as possible. The Circuit held that there was no duty to continue looking for a coal job after obtaining other employment.

Punitive Damages

Last, the Circuit affirmed the District Court’s dismissal of the EEOC’s punitive damages demand. The EEOC’s reckless indifference evidence focused only on Consol’s general awareness that Title VII imposed a duty to accommodate under some circumstances. The EEOC put on no evidence of Consol’s subjective appreciation that it might be failing to meet this duty in Butcher’s specific case, since it could have reasonably thought that the religious issue related only to right hand scanning under its view of the relevant scripture. This holding is a cautionary tale in the granular detail needed in order to reach a jury on Title VII punitive damages in the Fourth Circuit. In the wake of Consol, care should be taken to walk opposing witnesses through not only the requirements of the law, but also their application to the facts the plaintiff alleges.