Michael Yoder's New, VERY INTERESTING Complaint Makes it 5 Cases Challenging the Federal Employee Vaxx Mandate

As reported by Under Cover DC, attorney Michael Yoder (who filed the first complaint against the EO on 9-23) filed another complaint on October 24 (Church v. Biden, Case 1:21-cv-02815) in which he makes shocking allegations about the Safer Federal Workforce Task Force's handling of the Mandate. 

Of particular interest, the complaint alleges:

B.    THE TASK FORCE’S SCHEME TO CIRCUMVENT THE FIRST AMENDMENT AND DEPRIVE PLAINTIFF’S OF THEIR FREE EXERCISE OF RELIGION

 

50.                  Since the day President Biden issued the Vaccine Mandate, hundreds of thousands of federal government employees have been in complete disarray. Federal employees with serious, life-threatening conditions and others with sincerely held religious beliefs, such as Plaintiffs, have frantically sought guidance on how to obtain reasonable accommodations.

51.                  Due to the rapidly approaching deadline and Defendants’ full awareness that Plaintiffs have the fundamental right to engage in the free exercise of religion, Defendants concocted a scheme that imposes a “deadline” to submit religious exemption requests to help “evaluate the scope” of how many federal employees have sincerely held religious beliefs prohibiting compliance with the vaccine requirement. After determining the scope, the Task Force instructed the agencies to “collect information” through a questionnaire calculated to elicit information the agencies can then use as the basis for denying a respondent’s exemption request.

52.                  Video Footage from an October 8, 2021 Task Force Zoom call¹⁴ involving nearly 200 high-level officials from various agencies reveals Samuel Berger, a former Senior Advisor in

¹³ The term “agency” means an Executive agency as defined in 5 U.S.C. § 105 (excluding the Government Accountability Office). Id. at § 3.

¹⁴ Samuel Berger, COVID-19 Guidance Zoom Meeting, SAFER FEDERAL WORKFORCE TASK FORCE (Oct. 8, 2021);

see Exhibit 5.

the Obama Administration and the former Vice President of Democracy for John Podesta’s Center for American Progress (“CAP”) discussing the methodical approach each agency is to take when dealing with religious exemptions.

53.                  The Task Force advised each agency¹⁵ to establish a deadline which the agencies are not to enforce – because there is no deadline imposed on the fundamental right to freely exercise religion – but rather, to use as a “forcing function” that will induce all or nearly all federal employees with sincerely held religious beliefs to submit their requests.

54.                  Once all or nearly all federal employees have submitted their religious exemption requests, the agencies, individually or in conjunction with the Task Force, can then “evaluate the scope” of how many federal employees wish to exercise their fundamental right to freely exercise their religion.

55.              The Task Force then directed the agencies to refrain from issuing any decisions, because “once you grant an exemption to an individual in a job category, it is very hard to say that you’re not going to grant [an exemption] to a similarly situated person.”

56.              The Task Force further instructed the agencies to “take their time” and the agencies “should not feel rushed that they have to take steps immediately” because it is important to “collect information” on federal employees, such as Plaintiffs, whose sincerely held religious beliefs prohibit them from complying with the vaccine requirement.

57.              To collect this information, the Task Force advised it provided the agencies with a religious exemption form with questions that are intended to elicit information from federal employees seeking religious exemptions. The Task Force directed the agencies to “work bearing

¹⁵ The term “agency” means an Executive agency as defined in 5 U.S.C. § 105 (excluding the Government Accountability Office). See Exec. Order No. 14043 at § 3. It does not include the White House (“WH”), Centers for Disease Control and Prevention (“CDC”), the National Institute of Health (“NIH”).

 

in mind that a fair bit of thought went into the range of questions and the kind of information that [the questions] would provide.” The Task Force then gives the agencies authority to refuse to provide accommodations under whatever circumstances each agency so chooses.

58.              Rather than advising the agencies under what circumstances the refusal to provide an accommodation would constitute a violation of federal law or deprivation of fundamental rights, the Task Force merely emphasized how important it is for the agencies to “figure[e] it out as quickly as possible . . . because [the agencies are] not going to run an accommodation in those places–and that’s totally fine.”

59.              As a result, Defendants have either failed to implement a process by which     Plaintiffs and other federal employees are able to submit religious exemptions or implemented a process for Plaintiffs to provide information to Defendants to which they are not entitled in violation of current EEOC Guidance, federal statutory law, and Plaintiffs’ fundamental First Amendment right to engage in the free exercise of religion.

Why I am Suing the Federal Government (my Employer)

I have been a labor attorney with a federal agency for twelve years. As you can tell by context, the views expressed here are my own and do not reflect the views of my employer. 

On September 29, I filed a complaint in the U.S. District Court for the Northern District of Texas.  In my Complaint, I make a number of claims about President Biden's Executive Order No. 14043 (issued on September 9).  I will not repeat them all here. To understand the case, you will need to read the Complaint, the Defendant's Response, the Judge's Order, and my Response to that Order. In this post, I will provide some answers to common questions.

Why do you say that the Order is arbitrary?

The Order, and subsequent guidance, require that federal employees receive one of three hurriedly produced medical products unless they qualify for an "exception as required by law."  I argue that because exceptions required by law are not all-encompassing of those circumstances where exceptions should be granted by reason, the Order is unreasonable per se. 

I posit several "for instances" in the Complaint that have not been answered. One "for instance" was anticipated in the Complaint, but not made explicit until later in guidance published on the website of an entity called the Safer Federal Workforce Task Force (SFWTF). Under the guidance there, where an employee suffers myocarditis after receiving a first shot, he is still required to get a second shot or lose his job. See page 8 of my Response. If you have ever had myocarditis or pericarditis (I have) you know it is not fun. This policy  is more like something I would expect to see in an Aleksandr Solzhenitsyn novella than in official guidance from the government of the United States of America.

Another "for instance" are the people who have already beaten COVID-19 and have the antibodies to prove it. The lack of carve out for them is inconsistent with our vaccine policies for other diseases and inconsistent with the approaches of other governmental bodies, such as the European Union. See page 2 of my Response.

Another "for instance" is the 100% remote worker/teleworker. According to the guidance, even though a teleworker doesn't meet with the public or come into contact with coworkers, he still could and therefore he must take the second shot. See page 4 of my Response. Can the teleworker rule really be about keeping the public and coworkers safe or is it just proof that the Order is about exerting control over the lives of citizens as opposed to employees? I take offense when someone explains to me that he is requiring teleworkers to get injected for the safety of their coworkers, while telling me it's raining.

But if the above is not arbitrary, start stacking them together. You have an employee who was working remotely since before anyone heard of Wuhan, and this remote worker, who has already had COVID-19, takes the first shot and suffers from myocarditis following his first injection.  Any reasonable person would not make that man take a second shot. But there is no exception in the law for him.  

Doesn't the Caselaw Support the Government's Right to Require Vaccinations?

I address this issue in my Complaint and more comprehensively in my Response. There have been a couple of decisions that have come down in support of mandates, but the parties and the courts in cases like Klaassen v. Trs. of Ind. Univ, have operated on the assumption that these vaccines should be treated like traditional vaccines under the established law of vaccines. We have to stop and address the important issue: Should mRNA vaccines be treated under the caselaw developed for traditional vaccines? If the answer is, "Yes, because the CDC and the FDA say we should," that has no weight in my case where the Defendant controls those agencies.

General George Washington required his troops to inoculate against Smallpox at a time when Smallpox and other diseases were responsible for 90% of deaths among those troops, and when refraining from doing so would have put his army at a disadvantage against the mostly inoculated British forces. Those same troops of General Washington carried muskets, pistols, and rifles. The Second Amendment gives us the right to bear such arms.  The natural progression of gun design eventually led to the machine gun/assault weapon.  But, the Supreme Court didn't blindly apply old law to this new technology. See  

District of Columbia v. Heller, 554 U.S. 570, 624-25, 627-28 (2008).  In form, substance, and purpose, the machine gun is more similar to the rifle than mRNA vaccines are to traditional vaccines. As the Supreme Court discussed in Heller, there are times when old law should apply to new technologies, but it should never be done blindly.

What about Johnson and Johnson's vaccine which is not an mRNA product?

Johnson & Johnson indeed has a product which might more rightfully bear the mantle of "vaccine." However, the J&J vaccine is an Emergency Use Authorization only product. If the EUA labeling didn't matter, the President would not have waited until after the FDA approved one of the products to issue his mandate.

But the Pfizer Product, Comirnaty, has been FDA Approved?

Comirnaty cannot be found. Instead, we are assured that the previously EUA-approved Pfizer-BioNTech is "interchangeable".  That may be good enough for government work, but where we are not playing with horseshoes, hand-grenades, or atom bombs, 'close' does not count.

As argued in my Response at page 4, the Order relies on a slight of hand, as in a game of Three-card Monte: one of them is a 'vaccine', one of them is FDA approved, some of them are available, but none is an FDA approved and widely available vaccine.

CSRA Preclusion....Do you have standing to bring this claim to Federal Court?

Civil Service Reform Act Preclusion is a challenge, but I believe that I have established grounds sufficient to overcome it. The harm that I argue for is system-wide. I don't think Congress, in passing the CSRA, intended to allow the President to take unilateral actions which will have the effect (whether as a feature or a bug) of clearing his political opposition from government employment. As I argue in my Response, litmus tests like this one will act as a backdoor to the "spoils system" if not checked.

Do you have a religious objection to the vaccines?

Yes. First, I am against anything created on the ill-gotten benefit of the bodies of our "aborted" (murdered) brothers and sisters.  Second, after private reflection, I believe that these products and the mandates requiring them are evil.  That is all that I am willing to say about my beliefs as they pertain to these products.  As a Catholic, I have to be careful because I do not want to be the cause of disunity in the Church. I am not saying that other Catholics are wrong or engaging in schism simply by detailing their reasons further. But for me, I am just not going there because I fear where such conversations could lead and how words can be twisted. I pray for the Pope, for unity in the Church, and for the intercession of the Patron Saint of Poison, Saint Benedict.

Can you represent other employees, or give them advice?

No. In taking this case, I am running a minefield of legal and ethical problems. As a federal employee/attorney, I am not allowed to represent anyone--except myself--against the federal government.  On the other hand, other federal employees might be able to help me.  Nothing stops me from talking to other federal employees as potential witnesses. I have argued that there is going to be significant harm to the system which will have the effect of spoiling the administrative process.  If my case goes forward,  having the testimony of employees at agencies like the CDC, FDA, MSPB, and EEOC might go a long way in advancing that theory.

Are you alone in this?

No, luckily I have a good friend, Daniel Flickinger, who has sacrificed many hours to help with the case. I can't thank him enough.

What can I do to help?

Pray for me, pray for those who don't have the resources to refuse these products, pray for justice, pray for our country.

Seven Years Later

I started this blog in 2011 and wrote fairly regularly for a couple of years. I discontinued it in 2014.

Seven years later, I thought I would dust the cobwebs off and try my hand at blog posting again. 

Required Reading for Catholics in Labor and Employment Law: Ken Matheny's "THE DISAPPEARANCE OF LABOR UNIONS AND THE SOCIAL ENCYCLICALS OF POPES JOHN PAUL II AND BENEDICT XVI"

Pope John Paul II

Ken Matheny has an article out in the Winter 2014 issue of the Southern California Interdisciplinary Law Journal, The Disappearance of Labor Unions and the Social Encyclicals of Popes John Paul II and Benedict XVI.  It is worth a read for anyone interested in labor and employment issues and a must read for Catholics.  The article, like many, considers changes to the economic landscape and the diminished relevance of labor unions in America today while offering thoughts on the future of workers' associations.  Unlike other articles that contemplate these issues,  Matheny's article is powerfully informed by centuries of Catholic social doctrine and informs the reader along the way.

Inherently Concerted: Sabo, Inc. d/b/a Hoodview Vending 359 NLRB No. 36 (2012)

Can a simple discussion between employees be protected concerted activity under Section 7 of the NLRA?

Yes.

If employees are discussing a "vital term and condition" of employment, they are protected when they talk to one another about it.  These conversations are "inherently concerted."  It does not matter if the speaker or the listener agreed, or whether the speaker was trying to change things or persuade the listener. This is a bright line rule.  With one exception...

What are "vital terms and conditions of employment"?

According to the NLRB, they are the terms/conditions that you might generally expect employees to seek unionization about or engage in other group action about.  These are the basic ingredients, the flour, eggs, and sugar if you will, of organization and collective action.  So far, the Board has identified wages, work schedules/hours, and job security as "vital terms and conditions".

Are there others?

 I don't think that the list could be too large, but some other basics might make it.  For instance, safety would be a good candidate in my book.

The Board lays out the history of this doctrine and its justification in Hoodview Vending, 359 NLRB No. 36 (2012).  It is well worth the read, but in case you would rather watch, I have put together two animated scenes (30 seconds each) that depict the essence of the relevant facts.  The first one shows the essence of the activity at issue and the second scene captures essentially what the Board believed happened.

The Board held that because job security is a vital term, the conversation was inherently concerted and therefore the discharge was unlawful.

Jujitsu in EEOC v. Kaplan

I have always loved the passage from The Art of War about the general who is facing an enemy army on the other side of a river.  The two armies are at a stand off.  The general is informed that his forces are running perilously low on arrows (and won't be able to ward off an attack). What does the general do? He orders empty boats swung out at the enemy in a feigned attack.  The enemy volleys a multitude of arrows at the boats.  The boats are hauled back in and the general has his men collect the wasted arrows.

http://www.caiguoqiang.com/projects/borrowing-your-enemys-arrows-1

What a tactic; you start from a position of weakness, then use cunning to drain your enemy of his resources while simultaneously restoring yourself to a position of strength.

This isn't an exact parallel to the general on the river, but something about what happened in  EEOC v. Kaplan Higher Learning Edu. Corp. (N.D. Ohio 1/28/13) reminds me of it.  In that case, which issued earlier this week, Kaplan's attorneys turned the EEOC's policies back around at themselves (twice) and as a result won a motion for summary judgment.  How can you not admire that kind of lawyering?

As you may recall, as part of its statistical discrimination initiative, in 2010, the EEOC filed a suit against Kaplan University for its practice of using applicants' credit histories as a factor in hiring decisions.  Kaplan was not docking applicants for late payments or grading them on debt/asset ratios, but was only looking at large defaults and other red flags.  The EEOC alleged that Kaplan's practice was discriminating against minorities based on the disparate impact of these practices.

Kaplan's first legal Jujitsu maneuver was during discovery where it requested documents establishing the EEOC's own practice of using credit history to assess job candidates.  The EEOC at first committed to turning the records over, then balked, then was ordered to turn them over by a not so happy federal judge (Judge Patricia Gaughan).  As it turns out, the EEOC itself looks at applicant credit reports in 84 of its 97 positions because “overdue just debts increase temptation to commit illegal or unethical acts as a means of gaining funds to meet financial obligations”.  Although the case did not turn on this discovery request, there is a certain irony in that the rationale that the EEOC uses to defend its regular practice of checking applicants' credit history applies just as equally to every employer the EEOC regulates, and that irony does not appear to have been lost on Judge Gaughan.

Kaplan's second and critical act of Jujitsu came when it challenged the EEOC's prima facie case.  The EEOC's prima facie case was based on evidence that the applicants that Kaplan rejected on the basis of credit reports were disproportionately minorities.  To establish this prima facie case, the EEOC needed one critical piece of data: the race/ethnicity of the applicants.  Getting this information was an obstacle for the EEOC because Kaplan did not record the race of its applicants (the EEOC attempted to no avail to argue that the EEOC's model guidelines for employers call for gathering and retaining such information).

In order to find out the respective races of the applicants, the EEOC used their names and presumably their social security numbers to look up information about them from their local departments of motor vehicles.  However, only 14 of the 38 states from which the applicants hailed had records of race associated with drivers licenses.  For those states that did not have racial self-identification on the drivers license, the EEOC ordered the drivers license photographs of the applicants...With the pictures in hand, the EEOC had a panel of five "expert" "race raters" look at the pictures and determine the race of the applicants...You might be wondering, "What kind of credential does an expert race rater have?" The judge also wondered and was not at all impressed with their varied credentials of the raters who held advanced degrees in either economics, human development, psychology, or cultural anthropology, and had no established background in visually identifying an individual's race.  Further discrediting the "race rater" panel was its inability for 80% of its raters to reach a consensus as to the race of 11.7% of the applicants.

The lack of expertise and inability to reliably judge race was bad enough for the EEOC, but Kaplan's second Jujitsu move came in when they showed that the EEOC's own guidelines (the ones they tried to employ against Kaplan) deem visual identification as an undesirable way of identifying race and ethnicity. Thus Judge Gaughan noted that the "EEOC itself frowns on the very practice it seeks to rely on in this case" and ultimately dismissed the complaint on summary judgement for lack of a prima facie case.

Kaplan's attorneys did not exactly mimic the general on the river, but like him, they started from a position of weakness and used cunning to turn their adversary's resources against it.

NLRB Reiterates Rules on Investigation Confidentiality

A recent NLRB decision caused some ripples around the web, and I am a little bit surprised by the commotion.  The decision appears to have been a fairly straight forward reiteration of precedent that is at least a decade old.

The decision is Banner Estrella Medical Center, 358 NLRB No. 93 (2012). The cause of the controversy is the Board's ruling that the employer violated the NLRA through a policy that prohibited employee discussions about matters the employer was investigating.  After an employee made a complaint to the employer--pursuant to the employer's blanket policy--he was then forbidden from discussing the subject of the complaint with other employees.  Citing a similar decision it made last year in Hyundai America Shipping Agency, 357 NLRB No. 80, slip op. at 15 (2011), the Board stated

To justify a prohibition on employee discussion of ongoing investigations, an employer must show that it has a legitimate business justification that outweighs employees’ Section 7 rights.

This seems very similar to the Board's reasoning in Caesar’s Palace, 336 NLRB 271, 272 (2001)

The issue is whether the interests of the Respondent’s employees in discussing this aspect of their terms and conditions of employment outweighs the Respondent’s asserted legitimate and substantial business justifications.

In Caesar's Palace, the employer required silence among employees about an ongoing drug-investigation.  The Board held that the employer's interest in a safe investigation outweighed the employees' interest in discussing a workplace condition. 

In Phoenix Transit Systems, 337 NLRB 510 (2002), the Board found that the employer violated the NLRA by maintaining a confidentiality rule which prohibited employees from discussing their sexual harassment complaints among themselves.

In Hyundai America Shipping Agency, 357 NLRB No. 80, slip op. at 15 (2011) where managers "routinely instruct[ed] employees involved in investigations not to talk with other employees about the substance of those investigations", the employer's policy was considered unlawful.




Nothing then is surprising about the Board's conclusion in Banner Estrella where the employer had a blanket policy of instructing employees to refrain from discussing the subject matter of complaints while they were being investigated.


And the underlying principle hardly seems controversial. These are the main points as I see them:
1. Under Section 7 employees have the right to discuss terms and conditions of employment.
2. The terms and conditions of employment that employees have the right to discuss include issues such as whether a manager is sexually harassing an employee(s) and whether certain employees are being treated differently than other employees.
3. Employers will at times seek to investigate controversies surrounding the terms and conditions of employment.
4. If employers tell employees that they may not discuss the controversies while they are being investigated, they have necessarily infringed on the employees' Section 7 rights.
5. Any infringement on Section 7 rights must be justified.
6. Some workplace controversies require a high need of confidentiality to protect the employers' interests and the witnesses' interest. For instance an employer investigating a drug ring in its facility has an interest in protecting its witnesses from criminal retribution.
7. Some workplace controversies do not require a high degree of confidentiality to protect an employer's or witnesses' interest.  For example an employer investigating a matter that is mostly documented through email or caught on surveillance footage may not fear the effects of collusion as much as in purely "he said, she said" investigations.
8. Requiring employees to refrain from speaking to other employees about the subject of an investigation may work against the employees' interests because it may stop them from obtaining helpful information or generating a concerted protest.
9. Some balancing of the competing interests must be taken into consideration before stopping employees from discussing workplace conditions.

Braun Drug Testing and Industrial Due Process

Yahoo news and Slate have coverage and commentary on an arbitration panel's decision to overturn the 50 game suspension of National League MVP Ryan Braun.  Braun had been suspended for testing positive for synthetic testosterone.  Braun--who maintains his innocence--with the MLB Players Association, fought the suspension on the grounds of the chain of custody provisions of nonadherence to the league's and players' Joint Drug Prevention and Treatment Program.

Braun's urine sample had been collected on a Saturday night and not sent to the testing lab until Monday.

 Article X of the Joint Program, Integrity of the Specimen, lays out a very detailed process on how the testing process works. At Section V., it provides,

7. The Collector shall check the “FedEx” box in the section entitled “Specimen Bottles(s) Released to:” Absent unusual circumstances, the specimens should be sent by FedEx to the Laboratory on the same day they are collected. [Emphasis supplied].

Although the arbitration decision has not been published, by looking at Article X it's pretty clear where at least some of the battle lines were drawn.

The decision is stirring up dismay and controversy among baseball fans, but it stands as a good illustration of "industrial due process" and a good reminder for those of us in labor and employment law that there is no substitute for a close reading of a contract.

Lent, Catholicism, Religious Accommodations

Jesus goes into the desert for 40 days and 40 nights

It's Ash Wednesday, the beginning of Lent, and I have been wondering about where the courts and agencies have come down on Catholic employees' requests for religious accommodations.  Lent has several days which are very important to Catholics: Ash Wednesday, Holy Thursday and Good Friday (additionally the feast days of St. Joseph and St. Patrick fall within Lent). Although these days are not holy days of obligation, Catholics have sincere beliefs about how to observe them. Is there much guidance regarding their requests to shift schedules to observe these days?  Additionally, Catholics are called to personal acts of penance during Lent. Is there any guidance for requests to accommodate these?

 I have been looking for some kind of guidance specifically tailored to Catholic employees, a kind of "how to" on seeking religious accommodation that would list all the ways a Catholic employee might want to be accommodated and case law and guidance on what results he might expect. If someone knows of something like this, please drop a comment or send me an email.  If someone is interested in creating one, please send me an email, I would love to work on that project.  In the meantime, I have spent a little time hunting around to compile a list of Catholic accommodation decisions:

Good Friday

 1. The Equal Employment Opportunity Commission's (EEOC) Compliance Manual states under Example 3 , "A Catholic employee requests a schedule change so that he can attend church services on Good Friday...[this and other] accommodation requests relate to a “religious” belief or practice within the meaning of Title VII."  Unfortunately, the guide does not cite a Catholic employee related case for this proposition, but it is probably referring to 2.

2. Edwin Cardona and Felipe Borrero v. U.S. Postal Service, EEOC Appeal Nos. 01882012, 01882013, via 1990-MAR Army Law. 53, *54 (Oct. 11, 1989). The Postal Service failed to reasonably accommodate the religious practices of Catholic employees where it allowed them to take only five hours of leave on Good Friday, while allowing Jewish employees to take a full day, "the agency's justification for the different treatment was based on its interpretation of Catholic cannon law, which did not require more than two hours of church attendance on Good Friday, and Jewish law, which forbade work on holy days. The EEOC held that an agency had no authority to interpret religious laws or evaluate the sincerity of an individual's religious practices in developing its policy on religious accommodation."

3. Bronx Lebanon Hospital Center (1973 Arbitration decision) via 48-DEC Disp. Resol. J. 54, 59 "the arbitrator upheld the hospital's right to discipline a Roman Catholic employee for refusing to work on Good Friday since church law did not prohibit an employee from working on that day. Citing the many church services that are held in the evening in that community to accommodate the religious needs of working people and the statement of the hospital's Roman Catholic chaplain that Catholics may work on Good Friday, the arbitrator concluded that the grievant's decision not to work that day was more a matter of religious preference as opposed to an obligation that warranted protection under the contract's nondiscrimination provision."

4. NLRB v. Sauk Valley Mfg. Co., Inc., 486 F.2d 1127, (C.A.9, 1973) The NLRB conducted an election on Holy Thursday and Good Friday, but the results were not overturned.

Holy Days of Obligation and Sabbath

5.  Pielech v. Massasoit Greyhound, Inc., 668 N.E.2d 1298 (Mass.,1996). This was a procedurally complicated case where two Catholic racetrack employees were not allowed to take off Christmas. The case decided under Massachusetts law rather than Title VII and that law was struck down as unconstitutional.

6. Salisbury v. Potter, 2010 WL 128642, (N.D.Ill., 2010).  A Postal employee whose practice was to attend mass on Saturday evenings did not suffer an adverse action when forced to work Saturdays because he had opportunity to attend on Sunday.

7. Felix v. Baxter Healthcare Corp., Not Reported in F.Supp.2d WL 3245368, (C.D.Cal., 2010) Employer attempted to accommodate employee's request to not work Sundays, but employee did not follow up on employer's suggestions.

Personal Actions

8. Wilson v. U.S. West Communications, 58 F.3d 1337 (8th Cir. 1995) Catholic employee opposed to abortion wore a button and a T-shirt with photographs of a fetus. Other employees complained, the employer told her to stop wearing the shirt, and when she refused it fired her. The court held that the plaintiff's religious beliefs did not require her to wear the button in front of other employees. For commentary see 22 Harv. J.L. & Pub. Pol'y 959, 979. 

9. Tiano v. Dillard Dep't Stores, 139 F.3d 679 (9th Cir. 1998) Catholic employee's religious pilgrimage to Medjugorje, Yugoslavia was a personal preference because the employee's Catholic faith did not require that the pilgrimage be made during the employer's busiest season.

10. Several resources state without citation that there is a case where an employee's "Old Catholic" belief that she had to keep her head covered at all times was held to be protected.

11. EEOC v. AFSCME, 937 F.Supp. 166 (N.D.N.Y.1996) A Catholic employee who opposed capital punishment and abortion but who had to pay agency fee to Union was reasonably accommodated by the Union allowing the Catholic employee to donate to a charity instead.

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Update: Thanks to Ann Kiernan for posting on and linking to this and to Jon Hyman for including it in his invaluable What I Read This Week post.