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A woman who claims she was fired from her job at a maternity clothing store soon after she converted to Islam and started wearing the traditional full-length robe and head scarf has the right to take her case to a jury, a federal judge has ruled, because she can show that the store tolerated other violations of its dress code, such as an exposed midriff, and pierced eyebrows and lips. In his 29-page opinion in Davis v. Mothers Work Inc., Senior U.S. District Judge William H. Yohn Jr. denied a motion for summary judgment on claims of religious and racial discrimination after finding there were several key factual disputes in the case. Although Mothers Work claims that Betty Davis was fired for failing to show up for a scheduled shift in its Motherhood Maternity store in the King of Prussia Mall, Yohn found that Davis has evidence that the reason was a “pretext,” and that she was “set up” by a district manager who changed her work schedule without telling her. According to court papers, Mothers Work is a leading designer, manufacturer and retailer of maternity clothes, operating more than 1,000 stores nationwide under the names “Mini Maternity,” “Pea in the Pod,” and “Motherhood Maternity.” Davis, who is an African-American, was hired in May 2002 as a part-time supervisor, the suit says, and converted to Islam less than a month later and began wearing “overgarments.” Yohn found that Davis’ overgarments “arguably conflict” with Mothers Work’s employee dress code which says store employees must “wear clothing that reflects the current in-store seasonal fashions.” On June 26, 2002, the suit says, district manager Stephanie Worden first saw Davis wearing her overgarments. Exactly what happened next is disputed. Both Davis and the store manager, Debbie Parrish, testified that Worden ordered Davis to go home and remove her outfit. But Worden testified that she never ordered Davis to go home. Instead, she claims she asked Davis to “take a walk” around the mall while she contacted the human resources department to determine whether the overgarments were appropriate under the employee dress code. Davis also claims that she told Worden that, as a Muslim, she was required to wear the overgarments and accused Worden of religious discrimination. But Worden testified that Davis never told her that she was a Muslim, and that, at the time, she believed that Davis’ overgarments were a “Mormon outfit.” After that incident, Davis claims she was allowed to wear her overgarments at work, but that Worden began treating her differently – speaking to her “rudely” and giving her “nasty looks.” She also claims that supervisors began changing her work schedule without consulting her, at times putting her on shifts that they knew conflicted with her second job. Sheila Bradley, one of the store’s managers, testified that Worden at times ordered changes in Davis’ work schedule, including one occasion when Worden did not want Davis to be present because the company president was scheduled to visit the store. Bradley also testified that Worden often complained about Davis’ overgarments and had once asked Bradley to ask Davis whether she had “to wear the whole uniform.” The suit says Davis was fired in August 2002 on the grounds that she had failed to show up for three shifts. But Davis claims she had called out sick for two of the shifts and was never told she had been scheduled for the third. In a summary judgment motion, Mothers Work’s lawyers – Edward S. Mazurek, Jennifer M. Welding and Michael Jonathan Puma of Morgan Lewis & Bockius – argued that Davis had failed to allege even a prima facie case of discrimination. The defense team noted that another worker in the same store is also a Muslim and wore Islamic garb on several occasions. But Davis’ lawyer, Olugbenga O. Abiona, said the evidence showed that Worden never saw the other Muslim woman wearing overgarments. Abiona also argued that the evidence showed that Mothers Work tolerated other violations of its dress code. Both Davis and Bradley testified that Temperance Leister – a white, non-Muslim employee – often wore tight-fitting shirts that exposed her “midriff,” piercings in her eyebrows and lips, and colored hair. Davis said Worden never sent Leister home for violating the dress code and never treated her any differently. The defense lawyers argued that Davis’ racial discrimination claim fails because she testified in her deposition that she did not believe that she was terminated on the basis of her race. Yohn disagreed, saying the deposition also showed that Davis testified that Worden regularly discriminated against her on the basis of her race. “I cannot conclude on the basis of this confused and conflicting testimony that Davis cannot state a prima facie case for racial discrimination. . . . Davis’ deposition testimony may affect her credibility at trial, but a jury, not the court, must resolve this evidence,” Yohn wrote. The defense team also argued that since Worden had hired Davis, it would be wrong to draw any inference of discrimination from her decision to fire her. As authority for that proposition, they cited the 1991 decision by the 4th U.S. Circuit Court of Appeals in Proud v. Stone which held that “where the hirer and the firer are the same individual and the termination of employment occurs within a relatively short time span following the hiring, a strong inference exists that discrimination was not a determining factor for the adverse action taken by the employer.” But Yohn found that the 3rd Circuit has “expressly declined to adopt the presumption established in Proud.” And even if Proud were good law in this circuit, Yohn said, the argument would fail due to a factual dispute. Although Worden testified that she hired Davis, Davis claims that she was hired by Parrish. Yohn found that Mothers Work had “satisfied its burden” by showing that Davis was fired for a nondiscriminatory reason. But Davis, he said, had also satisfied her burden of showing that the purported reason was a pretext. Yohn cited the manager’s testimony that Worden had frequently ordered changes in Davis’ work schedule without notifying her. If believed by the jury, Yohn said, that fact “suggests that Worden may have set Davis up” to violate store regulations. Yohn also noted that Mothers Work maintains multiple copies of its employee’s work schedules, but failed to produce the records to support its claim that Davis had failed to show up for scheduled shifts. The U.S. Equal Employment Opportunity Commission investigated Davis’ claim, Yohn noted, and concluded that Mothers Work’s “lack of documentation seriously impairs [its] defense to [Davis'] allegations” and “shows a lack of credibility on the part of [Mothers Work].” The defense team also argued that Davis’ religious discrimination claim fails because she cannot show that Worden knew she was a Muslim. Instead, they said, Worden’s testimony shows that she believed Davis was a Mormon. Yohn disagreed, saying he found Worden’s testimony “rather astonishing,” but that legally it made no difference. “Even if Worden truly believed that Davis was a Mormon, the evidence still suggests that she discriminated against Davis on the basis of her religion,” Yohn wrote. “Title VII does not require that the employer knew the plaintiff’s specific religious beliefs. It only requires that the employer knew that the plaintiff was a member of a religion and that the employer discriminated against the plaintiff on the basis of that religion,” Yohn wrote. Worden, he said “admits that she knew that Davis’ overgarments were religious, and the evidence clearly suggests that Worden discriminated against Davis, and possibly fired her, because of Davis’ overgarments.” (Copies of the 29-page opinion in Davis v. Mothers Work Inc., PICS No. 05-1300, are available from The Legal Intelligencer . Please refer to the order form on page 8.)

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