SOUTHEAST TEXAS RECORD

TEXARKANA, Ark. � A second lawsuit to force Domtar Industries to allow a pastor to have Sundays off has been denied the chance to proceed by U.S. Magistrate Judge Barry A. Bryant.

In an opinion released May 1, the Rev. Kenneth Keener lost his second attempt to force his employer to give him Sunday mornings off.

After working more than 30 years on rotating shifts at Domtar's paper mill in Ashdown, Ark., Keener filed the first suit against Domtar Industries in 2004, alleging religious discrimination.

Keener became pastor at a church near his hometown in 1992. Due to rotating shifts, Keener periodically worked on Sundays, days in which he was scheduled to provide services at his church.

Although the paper mill would have to pay higher hourly work rates, Domtar allowed Keener to switch shifts with other willing employees. This accommodation worked well until the employee who routinely switched shifts with Keener retired. Thereafter, Keener states no other Domtar employees would agree to switch shifts.

According to court documents, the collective bargaining agreement in effect stated that Domtar could not force a shift change on one employee to accommodate another employee's request.

Keener had three options regarding those Sundays. He could work the Sundays when scheduled, take some of his six weeks paid vacation time, or fail to show up and accumulate disciplinary points.

In the lawsuit filed in 2004, Keener alleged that Domtar violated the Civil Rights Act of 1964 in that it had "denied any accommodations whatsoever" with regard to Keener's request for shift changes on Sunday mornings.

"Keener alleged this was religious discrimination and that Domtar should make an accommodation to allow him to attend church serves without accruing the disciplinary points," court records state.

The case proceeded to a three-day trial in 2006, in which the jury found in favor of Domtar.

Keener filed a similar lawsuit in 2007 against Domtar. He again alleged religious discrimination in violation of the Civil Rights Act and argued the discrimination has continued since the jury verdict in 2004.

In addition to alleging retaliation for filing the 2004 case, Keener also made an allegation that there is a hostile work environment due to the harassment of his "sincerely and closely held religious beliefs."

Judge Bryant agreed with Domtar's argument that Keener's religious discrimination and harassment claims are barred by res judicata and collateral estoppels.

Res judicata prevents the re-litigation of claims that have been previously litigated or that could have been previously litigated. Collateral estoppels prevent repetitious lawsuits over matters which have once been decided and which "have remained substantially static, factually and legally."

"Keener admits the conduct of Domtar, in allegedly failing to accommodate him, are simply different occurrences of the exact conduct he complained about in the 2004 case," the opinion states.

Further, Judge Bryant found that Keener's claim of harassment by the creation of a hostile work environment is barred, as the doctrine of res judicata applies with equal force to issues that could have been raised in a prior litigation.

With regard to the retaliation claim, Judge Bryant found that Keener's claims that a supervisor was "watching" him and "invading his space" and that "other employees are afraid to make policy-approved swaps with Keener for fear of retaliation themselves" did not constitute an employment disadvantage.

With the opinion, Judge Bryant granted Domtar's motion for summary judgment and dismissed the case in Domtar's favor.

Case No: 4:07cv04081