Eeoc Hosanna 2008

8/19/2019 Eeoc Hosanna 2008

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION,Plaintiff Case No. 2:07-CV-14124

and Hon. Patrick J. Duggan

CHERYL PERICH,

Intervening Plaintiff

v.

HOSANNA TABOR EVANGELICALLUTHERAN CHURCH AND SCHOOL,

Defendant.

/

EQUAL EMPLOYMENT OPPORTUNITY DEANO C. WARE, P.C.

COMMISSION Deano C. Ware (P65421)

Deborah M. Barno (P44525) Attorney for Defendant

Omar Weaver (P-58861) 26677 12 Mile Road

Attorneys for Plaintiff Southfield, MI 48034

Patrick V. McNamara Building (248) 386-9985477 Michigan Ave., Room 865

Detroit, MI 48226

(313) 226-3407

VERCRUYSSE, MURRAY & CALZONE, P.C.

James E. Roach (P51792)

Attorneys for Intervening Plaintiff

31780 Telegraph Road, Suite 200

Bingham Farms, MI 48025

PLAINTIFF’S BRIEF IN OPPOSITION TO DEFENDANT’S MOTION

FOR SUMMARY JUDGMENT

2:07-cv-14124-PJD-SDP Doc # 35 Filed 08/05/08 Pg 1 of 12 Pg ID 593


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STATEMENT OF ISSUES PRESENTED

I. WHETHER THE RETALIATION CLAIMS BROUGHT UNDER THE AMERICANS

WITH DISABILITIES ACT BY THE EEOC AND PERICH ARE BARRED BY THE

MINISTERIAL EXCEPTION.

THE EEOC ANSWERS “NO.”

THE DEFENDANT ANSWERS “YES.”



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CONTROLLING LEGAL AUTHORITY

1. Hollins v. Methodist Healthcare, Inc., 474 F.3d 223 (6th Cir. 2007).

2. Starkman v. Evans, 198 F.3d 173 (5th Cir. 1999).

3. EEOC v. Southwestern Baptist, 651 F.2d 277, 285 (5th Cir. 1981).

4. Redhead v. Conference of Seventh-Day Adventists, 440 F.Supp.2d 211(E.D. N.Y. 2006).

5. Guinan v. Roman Catholic Archdiocese of Indianapolis, 42 F.Supp.2d 849 (S.D. Ind.

1998).



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1 The EEOC adopts and incorporates the facts set forth in greater detail by Intervening

Plaintiff’s Brief in Support of Motion for Summary Judgement and all exhibits attached.

1

INTRODUCTION

The Plaintiff, Equal Employment Opportunity Commission (“EEOC”) brought this civil

action on behalf of Intervening Plaintiff, Cheryl Perich (“Perich”), under the Americans with

Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq, which prohibits an employer from

discriminating against a qualified individual with a disability. Under Section 503 of the ADA, it is

unlawful for an employer to retaliate against an employee who has opposed discrimination based on

a disability. Perich was employed by Defendant, Hosanna-Tabor Evangelical Lutheran Church and

School (“Defendant”), as a fourth grade teacher.

In November, 2004, while on medical leave, she was diagnosed with narcolepsy, a condition

that causes involuntary episodes of sleep. In February, 2005, Perich’s neurologist was able to

completely control her condition with medication and provided a slip which authorized her return

to work without restrictions. Despite the medical clearance by the neurologist, Defendant refused

to allow Perich to return to work after the expiration of her disability leave. Instead, based on its

perception that she was disabled and not fit to work, Defendant demanded that Perich resign. Perich

informed the School Principal that she was being discriminated against because of her disability and

that she would assert her rights by filing a lawsuit if Defendant continued to refuse to allow her to

return to work. Defendant responded by terminating her employment.

The undisputed facts clearly show that Perich suffered a retaliatory discharge in direct

violation of Section 503 of the ADA.1 Defendant’s Motion for Summary Judgment is based solely

on its assertion that the ADA retaliation claims brought by the EEOC and Perich are barred by the



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2 Apparently, although Defendant’s Motion is pursuant to Rules 12(b)(1) and 12(b)(6), it

is considered a summary judgment Motion because materials outside the pleadings are before the

Court and not excluded. Fed. R. Civ. P. 12(b).

2

“ministerial exception” and should be dismissed for lack of jurisdiction pursuant to Fed. R. Civ. P.

12(b)(1) or, in the alternative failure, to state a claim upon which relief may be granted under Fed.

R. Civ. P. 12(b)(6).2 Defendant also filed its Motion pursuant to Fed. R. Civ. P. 56. Contrary to

what Defendant argues, however, the “ministerial exception” is not applicable in this case because

Perich was not a minister. Nor did she have a pastoral role to Defendant’s congregation while

working at the School. Rather, the majority of her duties involved teaching secular academic

subjects to her students. Therefore, because Perich was not a ministerial employee, Defendant

cannot claim exemption from the ADA under the ministerial exception and its Motion should be

denied.

LAW AND ARGUMENT

A. The Ministerial Exception Is Not Applicable in This Case Because Perich Was Not a

Ministerial Employee.

The ministerial exception precludes subject matter jurisdiction over “claims involving the

employment relationship between a religious institution and its ministerial employees” and is often

raised in response to employment discrimination claims, including claims brought under the ADA.

Hollins v. Methodist Healthcare, Inc., 474 F.3d 223, 225 (6th Cir. 2007). However, in order for the

ministerial exception to bar an employment discrimination claim against a religious institution, the

employee must have been a ministerial employee. Id. at 226. In determining whether an employee

is a “minister” for purposes of the ministerial exception, the courts must consider the function of the

employee’s position. Id.



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3 The EEOC was unable to file and attach the exhibits to its Brief due to technical

problems with its scanner. The exhibits will be filed as soon as the scanner becomes operable.

In the interim, the EEOC will provide the court with a hard copy of its Brief, including the

exhibits.

3

As a general rule, the ministerial exception will apply “if the employee’s primary duties

consist of teaching [the faith], spreading the faith, church governance, supervision of a religious

order, or supervision or participation in a religious ritual and worship.” Id. (quoting Bruce N. Bagni,

Discrimination in the Name of the Lord: A Critical Evaluation of Discrimination by Religious

Organizations, 79 Colum. L. Rev. 1514, 1545 (1979)) (emphasis added). The ministerial exception

is likely to be invoked if the employee’s primary functions filled a pastoral role or involved

ministerial/religious responsibilities. Hollins, supra; Starkman v. Evans, 198 F.3d 173, 176 (5th Cir.

1999) (employees duties, requirements and actual role at the church must be examined to determine

if employee qualifies as a “spiritual leader”). The applicability of the ministerial exception is a

question of law for the court. EEOC v. Southwestern Baptist, 651 F.2d 277, 285 (5th Cir. 1981).

In the present case, it is undisputed that Perich’s duties as a teacher primarily involved

teaching secular subjects to her students – Math, English, Spelling, Reading, Science, Art, Computer,

Social Studies and Gym – and Defendant makes no assertions to the contrary. (Exhibit 1, Affidavit

of Cheryl Perich).3 It is also undisputed that the majority of Perich’s time was spent teaching these

secular subjects five days per week. (Exhibit 1). At no time did her job require her to serve in a

pastoral role or as a spiritual leader to Defendant’s congregation. (Exhibit 1).

The portion of Perich’s duties which involved religion were much smaller by comparison.

Her time spent teaching religion was limited to four days per week for a period of 30 minutes per

day. (Exhibit 1). She attended a 30-minute chapel service with her students once per week and lead



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the service on about two occasions during the year. She also participated in short devotional prayers

with her students in the morning, before lunch and at the end of the day, which took no more than

a total of five minutes. (Exhibit 1). The mere fact that a small percentage of Perich’s job involved

some religious activity and teaching the subject of Religion does not warrant Defendant’s exemption

from the ADA under the ministerial exception because she clearly did not function as a minister or

serve in a pastoral role. Guinan v. Roman Catholic Archdiocese of Indianapolis, 42 F.Supp.2d 849,

850-52 (S.D. Ind. 1998) (concluding that the ministerial exception was not applicable because

teacher’s duties were primarily secular, even though she taught a religion class and organized Mass

once a month). See also, Redhead v. Conference of Seventh-Day Adventists, 440 F.Supp.2d 211,

221 (E.D. N.Y. 2006) (ministerial exception did not apply because plaintiff’s teaching duties were

primarily secular and religious duties were limited to one hour of Bible instruction per day and

attending religious ceremonies with students once per year). Therefore, Defendant’s Motion for

Summary Judgment should be denied.

Defendant argues that the ministerial exception applies to Perich simply because she

completed colloquy courses in Lutheranism and became a “commissioned minister” upon receipt of

her Diploma of Vocation. To support its argument, Defendant cites Starkman v. Evans, 198 F.3d

173 (5th Cir. 1999), asserting that the religious courses completed by the employee is a relevant factor

in determining the employee is ministerial. First, Defendant has grossly misinterpreted this decision.

In Starkman, the court clearly held that, in determining whether an employee qualifies as a minister

for purposes of the ministerial exception, the courts must “examine the employment duties and

requirements” of the employees job, as well as the employee’s “actual role at the church.” Id. at 175.

Second, Starkman is distinguishable. The Fifth Circuit considered the religious courses completed



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by the plaintiff because extensive course work in church music was required in order for plaintiff to

be a certified Director of Music Ministry, which was a job requirement because church music was

a form of prayer. Id. at 176. Thus, the Fifth Circuit concluded that the position of Director of Music

Ministry was based largely on religious criteria. Id. Moreover, in Starkman, most of the plaintiff’s

job duties were religious and required her to serve the church as a spiritual leader and perform church

ceremonies. Id.

Here, as discussed above, Perich’s job duties were primarily secular as opposed to religious.

Additionally, unlike the plaintiff in Starkman, Perich’s job as a teacher was not largely based on

religious criteria. The term “commissioned ministers” is simply another way to refer to “called

teachers” for Lutheran schools. (Exhibit 2, Braun Dep. p. 82).

During the relevant period, some of Defendant’s teachers were “contract” teachers as

opposed to “called” teachers. Intervening Plaintiff’s Brief in Support of Motion for Summary

Judgment, pp. 3-4. Moreover, Defendant did not require that all of its teachers be Lutheran and

actually employed teachers who were not Lutheran. Defendant did not require that the teacher who

lead the chapel service be a “called” teacher or a Lutheran. Defendant did not require that its

religion classes be taught by a Lutheran or by a “called” teacher. (Exhibit 1). Surely, these

undisputed facts undermine Defendant’s claim that Perich was a minister. Guinan, 42 F.Supp.2d

at 853 (secular nature of teacher’s job underscored by the existence of teachers for Defendant who

were not Catholic).

Again, there is no dispute that Defendant does not require its teachers to be “called” or

Lutheran for that matter in order to work as a teacher at its school. (Exhibit 1; Intervening Plaintiff’s

Brief in Support of Motion for Summary Judgement, pp.3-4). This is further established by the fact



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4 To support its argument, Defendant relies heavily on Schleicher v. Salvation Army, 518

F.3d 472 (7th Cir. 2008). This case is not on point, however, because it is highly distinguishable

in terms of the facts and the legal issue. In Schleicher , the plaintiffs were ordained ministers

who filed claims under the Fair Labor Standards Act. Id. at 475. The issue before the court was

whether the fact that the church had a commercial dimension through its thrift shops brought its

ministers under the FLSA. Id. at 478. Importantly, the Schleicher plaintiffs did not assert that

their discharge was retaliation for filing a FLSA suit. However, the Seventh Circuit merely

noted, in dicta, that if the plaintiff had claimed retaliation, the defendant might argue that

plaintiff’s were fired because their filing of suit was inconsistent with their religious obligations

as ordained ministers, which would have required the court to inquire into the religious doctrines

of the defendant. Id. at 474.

6

that Defendant has continuously employed, on a contractual basis, teachers who are not “called”

because the job primarily involves teaching secular subjects to the students. Exhibit 1; Intervening

Plaintiff’s Brief in Support of Motion for Summary Judgment, pp. 3-4. Further, Defendant’s

argument that the mere title of “commissioned minister” is sufficient to establish Perich as a

ministerial employee is erroneous because the court must look to the nature of the position and not

simply an employee’s title. Musante v. Notre Dame of Easton Church, 2004 WL721774 at *5

(D.Conn. March 30, 2004). Perich’s job title was teacher. (Exhibit 1). The mere fact that she

received a Diploma of Vocation is insufficient to entitle Defendant to invoke the ministerial

exception.

B. Because Defendant is Not Exempt from the ADA Under the Ministerial Exception

Defendant’s Establishment Clause Arguments Are without Merit.

Defendant argues that, because the ministerial exception applies to Perich and its decision

to fire Perich was a religious decision, the First Amendment’s Establishment Clause and Free

Exercise Clause precludes the court from inquiring into its motives for the discharge.4 Defendant’s

argument has no merit. For reasons stated above, because the ministerial exception is not applicable

in this case, Defendant is not exempt from the ADA under the Establishment Clause or Free Exercise



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Clause and the court has jurisdiction over this matter. Starkman, 198 F.3d at 175 (if employee’s

position merely required performance of tasks not traditionally ecclesiastical or religious, religious

employer is not entitled to protection under the Free Exercise Clause).

Defendant also claims that, during the course of the litigation, the EEOC and Perich have

inquired into the propriety and validity of Defendant’s religious beliefs regarding ministers filing suit

against the Church in secular courts. This simply is not true. In pursuing this ADA retaliation claim,

the EEOC and Perich did not challenge or dispute the validity of Defendant’s beliefs because its

beliefs are not at issue. The only issue before the Court is whether Defendant retaliated against

Perich by terminating her employment because she asserted her rights under the ADA by threatening

to file a lawsuit. An adjudication of this issue will not require the Court to decide any issues related

to Defendant’s religious doctrines.

Defendant appears to argue that its decision to terminate Perich was a religious decision,

stating that Perich was fired because her threat to file suit violated the Lutheran Church’s prohibition

against Christians suing each other in secular courts. However, the evidence shows without question

that, Defendant wanted to terminate Perich’s employment before she threatened to file suit. Based

on Defendant’s perception that Perich was disabled and not physically capable of returning to work,

Defendant prevented her return to work and vigorously pursued her resignation. When Perich

opposed Defendant’s conduct by threatening to file suit for disability discrimination, Defendant

retaliated by discharging Perich. Intervening Plaintiff’s Brief in Support of Motion for Summary

Judgement, pp. 6-12. Thus, Defendant achieved what it sought to do all along – terminate Perich.

Its contention after suit was filed that its decision was motivated by religious principles is refuted

by the evidence.



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CONCLUSION

Based on the foregoing, because the ministerial exception does not apply in this case, the

EEOC respectfully requests that this Honorable Court deny Defendant’s Motion for Summary

Judgment.

Respectfully submitted,

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

LAURIE A. YOUNG

Regional Attorney

DEBORAH M. BARNO (P44525)

Supervisory Trial Attorney

Dated: August 5, 2008

s/OMAR WEAVER (P58861)

Trial Attorney

DETROIT FIELD OFFICE

Patrick V. McNamara Federal Building

477 Michigan Ave, Room 865

Detroit, Michigan 48226

(313) [email protected]



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CERTIFICATE OF SERVICE

The undersigned certifies that on August 5, 2008, the foregoing document was

electronically filed with the clerk of the court using the ECF system, which will send notice of

such filing to Deanno C. Ware, counsel for Defendant and James E. Roach, counsel for

Intervening Plaintiff.

Respectfully submitted,

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

s/Omar Weaver (P58861)

DETROIT FIELD OFFICE

477 Michigan Ave, Room 865

Detroit, Michigan 48226(313) 226-3407

[email protected]


Eeoc Hosanna 2008

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