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Community Empowerment Association v. Workers' Compensation

November 25, 2008

COMMUNITY EMPOWERMENT ASSOCIATION, PETITIONER
v.
WORKERS' COMPENSATION, APPEAL BOARD (PORCH), RESPONDENT



The opinion of the court was delivered by: Senior Judge Flaherty

Submitted: August 22, 2008

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE ROCHELLE S. FRIEDMAN, Judge, HONORABLE JIM FLAHERTY, Senior Judge.

OPINION

Community Empowerment Association (Employer and CEA) petitions for review from an order of the Workers' Compensation Appeal Board (Board) that affirmed the decision of a Workers' Compensation Judge (WCJ) granting a Claim Petition filed by Lillian Porch (Claimant). We affirm.

Claimant filed a Claim Petition alleging she sustained psychological injuries as a result of her employment as a case manager for Employer. In support of her Petition, Claimant testified that Employer provides social services, including after school programs for youths to help them obtain employment. Claimant stated that Employer's President, Rashad Byrdsong, made unwanted sexual advances towards her. According to Claimant, he made comments like he thought she was a lesbian because he had not seen her with any men and that her breasts and buttocks were shaped like a butterfly. Claimant further explained that Mr. Byrdsong stated he needed to stay away from her office because he was trying to control himself. He asked her if she slept with certain men and informed her that he would come over to her house, even at 2:00 a.m. Claimant indicated that after repeatedly denying Mr. Byrdsong's advances he began acting really mean to her. Claimant explained that she reported these incidents to her supervisor, Daytona Gordon.

Claimant, who is a Christian, further testified that most of her co-workers were Muslim or "Gods and Earths." According to Claimant, staff meetings were held and she would be held out by Mr. Byrdsong for being non-Muslim. She indicated the meetings could go several hours and Mr. Byrdsong would discuss religious topics such as the power of wrapping up, meaning to put the traditional Islamic head-garb on, and finding funding to build a Mosque. Claimant stated that her co-workers would come into her office and tell her that she should wrap up. Claimant further explained that a man named Sheikh Tajohni was given an office and he would give spiritual guidance.*fn1 She asserted that he went around the premises burning incense, doing chants, and splashing water.

Claimant last worked for Employer on December 16, 2005. She stated that she could continue handling what she believed was a heavy workload but for the continuous sexual and religious harassment. Claimant found alternative employment on October 2, 2006.

Claimant submitted reports in support of her claim, including a September 26, 2006 psychology report of Thomas M. Eberle, Ph.D., who examined her on August 8, 2006 and September 18, 2006. Claimant provided Dr. Eberle a history that she experienced religious and sexual harassment while working for Employer and that the harassment increased in severity with the passage of time. Dr. Eberle diagnosed Claimant with major depressive disorder and opined that it was in remission. He further opined Claimant developed generalized anxiety disorder and panic disorder with agoraphobia as a result of the incidents that occurred while working for Employer but he indicated that these conditions were resolved. Dr. Eberle stated that these disorders were directly caused by Claimant's gender, sexual, and religious discrimination endured while working for Employer. According to Dr. Eberle, Claimant cannot return to work for Employer without risking a severe relapse. He noted, however, that Claimant is free to work elsewhere.

Employer presented the testimony of Mr. Byrdsong who agreed that religious discussions took place during staff meetings. Nonetheless, he stated Employer is a multi-cultural organization and any discussions that took place were for the purposes of addressing the needs of the community that it serves. Mr. Byrdsong denied Claimant was ever held out as a non-Muslim or prompted to wrap up. Mr. Byrdsong agreed that Sheikh Tajohni was provided office space to conduct his spiritual advising work. According to Mr. Byrdsong, however, he was not there to provide advice to the staff, only his own clientele. Mr. Byrdsong agreed that on one occasion, the Sheikh conducted a ceremony to purify the organization. He explained that that ceremony was not a facet of Islam, but rather an African-American tradition. Regardless, Mr. Byrdsong indicated Sheikh Tajohni was instructed to discontinue any such activities. He denied Claimant's allegations of sexual harassment.

Mr. Byrdsong stated that in addition to being Employer's CEO, he is the Amir of Al Mumin, the Mosque he attends. A brochure was presented concerning the Al Mumin economic development project. According to Mr. Byrdsong, he was asked to help with this project on a personal level, not a business level. He agreed, however, that the brochure identifies the address for the Al Mumin development project as Employer's address. He further agreed that he permitted Al Mumin to use Employer's facility as a meeting place. During Mr. Byrdsong's testimony, the following dialogue took place:

Q: Other than [allowing Al Mumin to use Employer's facility as a meeting place and] providing an address, did CEA, and again I'm not asking about Mr. Byrdsong personally, but did CEA do anything else for Al Mumin?

A: No.

Q: I would like you to take a look with me at the second page of the brochure. It's the one that says History and Direction at the top. I'm going to read a sentence to you and I'm going to ask you to comment on it.

According to the brochure, it says, "Currently there is a growing population of 10,000 Muslims in the area and several strong entities, including our partner and driving force, Community Empowerment Association, an institution performing as a ...


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