December 2008 Archives

[Update: mirrored, and probably more reliable links for complaint and motion to strike. Ray Hill kindly mirrored the documents here, as well. ]

Alexander Godelman and Marc Le Shay, two Diskeeper employees (Godelman was CIO and Le Shay hired as the Automation Planning Officer) have filed a complaint in the Los Angeles Superior Court alleging that Scientology training was a condition of employment and that their refusal to participate led to their dismissal. According to the complaint, "{t]he working conditions and work environment at DISKEEPER were inextricably intertwined with the Scientology religion such that a non-Scientologist cannot escape constant impositions of said religion."

When Godelman complained that these programs ran counter to his own religious belief (Judaism), former Diskeeper CEO and current Chairman Craig Jensen told Godelman that his attendance at the "training courses" was "not negotiable," adding that Godelman would become more intelligent and his personal life would "improve drastically." Jensen also warned Godelman to not "complain about the process" in emails, which Jensen feared would be "misconstrued" and/or "taken out of context." Le Shay was eventually fired after he refused to attend and participate in a course series entitled "Basic Study Manual" and after Godelman interceded on Le Shay's behalf, Godelman was also terminated.

The complaint alleges five causes of action--three based on Diskeeper's alleged violation of California's Fair Employment and Housing Act (FEHA): namely, discharge due to religious discrimination, discharge in violation of public policy, retaliation against persons opposing wrongful practices. A fourth cause of action claims that Diskeeper violates California Labor law, which prohibits employers from retaliating against persons refusing to participate in activity which would result in a violation of a federal or state statute or regulation. A fifth cause of action alleges that Diskeeper failed to maintain its statutory obligation to prevent discrimination.

In response to Godelman and Le Shay's 3rd amended complaint, Diskeeper filed a Motion to Strike portions of Plaintiffs' complaint, specifically, Plaintiffs' requested remedy for...

"...prospective injunctive relief in the form of a prohibitory and/or mandatory injunction requiring Defendants to cease, desist and forever refrain from forcing or requiring any employee, as a condition of employment, to study, adopt and/or apply the so-called "Hubbard Management Technology" and/or the related "Hubbard Study Technology" in the workplace, according to proof at trial[.]"

Diskeeper argues in its motion that these injunction requests should be struck from the Complaint because Diskeeper is permitted to introduce religious training in the workplace and therefore any injunction which broadly prohibits religious practice in the workplace is unconstitutional.

It would be helpful at this point to explain the purpose of a motion to strike, which is rarely filed. A party will sometimes move to strike language in a pleading which is scandalous and has no relevance to the complaint or relief requested. Filing a motion to strike is also a useful if one wanted to stall, buy time, or bleed the opposing side of legal fees, because it extends the time to serve an Answer to the Complaint. While Diskeeper's argument may actually have some merit and may ultimately succeed at trial, a motion to strike will likely be viewed by the Court as an improper procedural tool to confront this particular argument. Diskeeper will eventually be permitted to make their argument, but not at this stage of the litigation.

For California law on motions to strike, see the California Code of Civil Procedure §§ 435,436.

What's most notable about Diskeeper's motion, however, is Diskeeper's implicit admission that Hubbard Management and Study Technology are both religious in nature, else why would they advance the argument that Diskeeper has a protected interest in providing religious training to employees? In footnote 4 of the motion, Diskeeper claims that it in no way concedes that Hubbard Management and Study Technology are religious, but to anyone familiar with both Scientology and Hubbard's supposedly secular "technologies," the two brands are basically indistinguishable, and indeed, the establishment of supposedly secular fronts was intended by Hubbard to be a recruiting tool.

It will be interesting to see what happens next but a trial seems likely.

If someone with significant bandwidth could kindly mirror these two PDFs, that would be great, because the below link is merely a free mediafire account, whose bandwidth will cap at some unknown point. I will keep this blog updated with the most recent location of the files.

The following was posted on the newsgroup alt.religion.scientology, but I'll post here as well.

The Ninth Circuit finally, after 10 months, published its opinion in Sklar v. Commissioner, and I'm sad to say it disappoints. I wrote about the oral arguments in this case back in May, trying to read the tea leaves as to what the court might do.

Although the court arrives, ultimately, at the right decision (the IRS's unconstitutionally preferential treatment of Scientology should not be extended to other religions), this opinion is a huge disappointment because it appeared that at oral argument in February of this year, the court was inclined to remand the case back to Tax Court to permit the Sklar's to make a disparate treatment argument, an argument which would have necessitated allowing into evidence the IRS-Scientology "secret agreement," which, though published by the Wall Street Journal, neither the IRS nor Scientology will authenticate/validate/admit exists. Despite that this very issue was the primary focus of discussion at oral argument in February, the opinion makes no mention of it. Here's a snippet from the oral argument:

Judge Wardlaw: "The view of the IRS is it can unconstitutionally violate the Constitution by establishing religion, by treating one religion more favorably than other religions in terms of what is allowed as deductions, and there can never be any judicial review of that?"

IRS (Delsole): "That is not at all what I said.”

Judges Pregerson & Wardlaw (simultaneously): "That's the bottom line!"

Judge Wardlaw: "This does intrude into the Establishment Clause."

Judge Wardlaw even said, at one point during oral argument, that what the Court would probably have to do is remand because there was no other way of actually knowing whether Sklar's disparate treatment argument would work except to allow him to at least make it, despite its near-certain futility. It was Judge Wardlaw who then wrote the opinion that barely mentioned this issue.

Keep in mind that Scientology was not a party to this case so it was never within the Tax Court's nor the Ninth Circuit's discretion to rule on the constitutionality of the IRS-Scientology agreement--that wasn't the central issue in this case, so it's no real surprise that this case came out identical to the first one. But the judges seemed poised to remand, which would've put the IRS-Scientology agreement at trial, in a sense, and good things may have come of that.

Also strange is that this opinion took 10 months to write. Yet the opinion obstinately declines to grapple with what the court expressly admitted at oral argument was a difficult question--it just ducks it. I'm not going to speculate too particularly, but there is no good reason for such a simple, by-the-numbers opinion to take so long (Federal Circuit Court opinions generally take 4 months from oral argument to be published). My guess is that while the Judges never disagreed as to whether the Sklars should ultimately prevail, there was disagreement over whether to remand, with the pragmatic camp suggesting that it would be a futile exercise (likely correct) and the rule of law side arguing the Ninth Circuit should not be deciding the merits of the Sklars' argument before they've made it (which is what I was rooting for).

This would've been a nice opportunity to see the IRS-Scientology agreement argued as to its constitutionality but that opportunity and moment are now lost, at least for now. Few, if any, plaintiffs have standing (as taxpayers) to challenge the agreement, and taxpayer standing became more difficult last year after Hein v. Freedom From Religion Foundation was decided by the Supreme Court.