In states that have adopted the Neutral Principles Doctrine in non-religious issue church disputes employment contracts with non-clergy are enforceable in court. A church can contractually impair or limit the First Amendment Ecclesiastical Abstention Doctrine and the Ministerial Exception Doctrine. The financial aspect of the contract will typically not be deemed ecclesiastical even if reinstatement as a remedy is not available under these Doctrines. Courts will be reluctant to try to force reinstatement on a religious organization even for non-clergy and prefer a financial remedy. But, the remedy could be technically available.
In Saint Augustine School v Cropper, Slip Op. (KY 2017), the very brief opinion of the state supreme court did not explain why the elementary school “lay administrator” was in fact “lay.” The “lay administrator” was rehired under a written contract but then shortly after that terminated in what the court seemed to describe as a reduction in force required by a financial downturn at the school or the church. The opinion was silent as to any other reason for termination. The lower court granted summary judgment to the church based on the Ecclesiastical Abstention Doctrine. The Ministerial Exception Doctrine was not asserted by the church. Thus, the Kentucky Supreme Court reversed the lower court on neutral principles grounds.
Written employment contracts are two edged swords. Churches should use them as do businesses to reduce their exposures. But, doing it badly or autonomically usually leads to unintended consequences. Most states in the west have adopted the “at will” employment doctrine. It applies when there is no written or implied contract. State law regarding “at will” employment doctrine should be considered in the evaluation of the need for and contents of an employment contract. Written employment contracts should have a limited duration, typically short, and expressly state renewal is not automatic even if employment continues beyond expiration. There are many other considerations.
In order to determine if federal employment discrimination statutes apply to the employee of a para-church organization, a court will look to the descriptions of the employment both sides tender into evidence. On a Motion to Dismiss at the beginning of a case, this may be a very limited inquiry. Typically, motions to dismiss look only to the Plaintiff’s allegations in the Complaint or Petition and to any documents attached. On a Motion for Summary Judgment filed after discovery the range of admissible facts and exhibits may be quite broader.
In Lishu Yin v Columbia International University, Order and Opinion, (D. SC – Columbia, 2017), the Plaintiff attached an employment contract to the Complaint and made certain allegations about her employment role. The Court overruled the Motion to Dismiss. The Court determined that the description of the Plaintiff’s job in the employment contract did not establish that Plaintiff was a minister such that the case barred pursuant to the First Amendment’s Ministerial Exception. The employment contract described the job as “associate professor” and “faculty of the ministry.” The Plaintiff self-described her role as a full time resident faculty member in the “Masters of Teaching English as a Foreign Language” program. The Court held that these descriptions were not sufficient to persuade that Plaintiff was a “minister” triggering the Ministerial Exception.
The employment handbook of the institution and the employment contract cannot alone trigger the Ministerial Exception if they do not describe the ministry the jobholder is to perform. Further, the description should reflect the age or maturity level of the students, not simply be overly general boilerplate, and the handbook and contract should dovetail by referring to each other’s latest version, even if the version is not stated.
Jefferson Starship’s 1985 tribute to rock’s influence on the “city by the bay” even today transports us to a part of our cultural history. If music can do that in a secular setting, can there be any doubt it can do so in a worship service? Indeed, would not a church seek catharsis wistful or inspired during worship services and use music to obtain it?
In Demikovich v St. Andrew the Apostle Parish, Memorandum and Order, (USDC, ND Ill. ED. September 29, 2017), the federal court dismissed the Plaintiff’s employment discrimination case based on the First Amendment Ministerial Exception. Plaintiff was a part-time employee that self-described his role as “music director, choir director and organist.” In those roles, Plaintiff explained that he selected music played during mass. His selections were not final and were subject to approval. Plaintiff alleged he was fired for entering into a same sex marriage and because of disability arising from overweight and diabetes.
The Court listed the extant “music director” cases and explained that the church “held out [Plaintiff] as a minister, with a role distinct from that of most of its members.” Thus, counsel faced with such a case may want to explore fully the authority the church employee had that a lay member did not. The Court declined to consider final decision-making authority, or its absence, as determinative of whether the church employee was a “minister.” The Court sanely recognized that everyone answers to somebody. The Court held that the fundamental right to marry does not guarantee freedom from private discrimination but only governmental discrimination. The Court did not reach the inquiry of whether “interference with the fundamental right to marry” included discrimination when the decision to marry or the marriage process was not affected by the adverse employment action but only penalized after the fact.
United States courts will not entangle themselves in the ecclesiastical affairs of a church or denomination. Some churches and denominations include in their governing documents ethics codes. Sometimes the codes are specific and other times they are simply referenced. Sometimes when the codes are specific, certain behaviors are included within the scope of the ethics code that might be included in non-church contexts.
In Dermody v Presbyterian Church (USA), 2017 WL 3495911 (Ky. App. 2017), the Plaintiff claimed he was defamed by the church’s classification of his behavior as an ethics violation and the transmission of that information to various other sectors in the church. The court dismissed the case and it was affirmed by the appellate court. The behavior classified as “unethical” was failure to detect that subordinates had incorporated and transferred some funds to the entity without obtaining advance approval of the incorporation from the denominational governing body. Involuntary termination resulted.
The Concurring Opinion suggested the failure to know the subordinates had improperly incorporated the entity was poor management but not “unethical” as the term “unethical” would be generally understood. However, the denominational control document expressly defined improper incorporation as an ethics violation. As a result, all of the judges ruled that pursuant to the Ecclesiastical Abstention Doctrine and Ministerial Exception the denomination could set the scope of its ethics code in any manner and impose it on their employees. The courts would not interfere. The defamation claim was dismissed.
Several federal courts have held that the principal of a church school is sufficiently ministerial such that federal employment claims cannot be enforced. The Ministerial Exception, a subset or cousin to the Ecclesiastical Abstention Doctrine, may not even allow enforcement of a written employment contract in some circumstances. An involuntary employment termination, a firing, cannot be reviewed by any court if the Ministerial Exception is found to be applicable. Application of the Ministerial Exception must be on a case by case basis so a church would be well served by counsel to prepare to prove its applicability even if the firing was for cause.
In Nolen v Diocese of Birmingham, Slip Op. (ND Ala ND 2017), the principal of the Catholic “grammar school” was hired on a one year written employment contract that specified firing for cause. The principal made a novice’s mistake and ignored obvious potential for conflict by hiring a new secretary that was married to a parish financial advisory board member. Meanwhile, the school enrollment was declining and as a result school finances were declining. To solve the problem, the principal marketed the school to Hispanic students and found scholarship sources for as many as possible. The principal claimed the new secretary spoke disparagingly about these students and the secretary was required to resign. Predictably, the financial advisory board became hostile to the principal. The principal was “required” to sign a letter of resignation by the priest in charge, however, because of inflated mileage travel claims, checks payable to the principal for reimbursement signed by the principal after instruction not to issue checks in that manner, and because she failed the state certification examination and did not retake the test. It was unclear whether the principal was known to be uncertified at the time of hiring. The principal claimed she was fired because she tried to prevent hostility to Hispanic students and scholarship students. The Court granted summary judgment and dismissed the case but never reached the firing for cause arguments or evidence nor the issue of resignation versus adverse employment action.
Indeed, in reality, the Court never got beyond the Diocesan School Mission Statement and the procedure manual for Catholic Schools, both made applicable by the written one year employment contract. Because this decision was at the Summary Judgment stage rather than the pleading stage, the evidentiary record was probably fully developed by discovery or at least the opportunity for discovery. Counsel wisely fought for the soul of the Court by launching all of the evidence that supported the employment action and reducing or depriving the Plaintiff of sympathy.
Numerous lessons are in this opinion. The lack of state certification may not have mattered in a private school, it would not in some states, but if it did, timely certification probably should have been an added term in the employment contract. The Court did not indicate whether any written policy prohibited someone with check signing authority to self pay. Indeed, the Court did not explain how the principal had check signing authority or whether the checks required two signatures. The church office and the priest in charge were probably nearby and check signing authority should have been limited or non-existent. Hiring the family of a board member should probably be prohibited as nepotism. Only in tiny and very small churches would it be unavoidable. In a Roman Catholic church no one typically has any actual authority except the priest in charge but that does not make nepotism a good idea.
It is rare that a church dispute is compelled to arbitration. Rarely is there a contract, local church control document or denominational control document that would require arbitration. Even though there are private para-church organizations that offer the services of arbitrators, most church entities have never embraced them for anything other than disputes between members.
In Patterson v Shelton, 2017 WL 3446885 (ED Penn. 2017), twenty-two years of litigation over control over the denomination and its assets had progressed through arbitration, state trial courts, federal trial courts, and appellate courts. The opinion does not explain the reason arbitration was compelled by the state trial court in 2006. But, the arbitration award in favor of the Plaintiff was vacated by the state appellate court. Efforts to enforce the arbitration award in federal court did not commence for six years for an unknown reason. The federal court dismissed the arbitration award enforcement action and the dismissal was affirmed by the United States Court of Appeals for the 3rd Circuit. The opinion summarized herein was the second case filed in federal court to enforce the arbitration award and again the case was dismissed.
The dismissal was based on a lack of subject matter jurisdiction because there was no federal question jurisdiction and there was not complete diversity of state citizenship between the plaintiffs and the defendants; the arbitration award had been vacated and in the eyes of the law no longer existed to enforce; further review of or enforcement of the arbitration award would require entanglement of the Court in ecclesiastical governance.
It was somewhat surprising the Court even reached the Ecclesiastical Abstention Doctrine given the absence of federal question or diversity jurisdiction. The Court did not fully explore prohibition of enforcement of an arbitration award, a creature of contract, by the Doctrine but did explain it enough to indicate that practitioners considering mandatory arbitration clauses would do well to be skeptical of their utility in ministerial employment and church governance matters.
While typically Courts will not honor form over substance, sometimes they do and church lawsuits are not immune from the refusal to view the entire record before the Court on procedural grounds.
In Jane Doe v Coe and First Congregational Church of Dundee, 2017 IL. App. 2d 160875, even though it seemed from the Court’s opinion the Constitution and Bylaws of the denominational entity were in the record, the fact they were not stapled to affidavits relying upon them violated a Court rule requiring it resulting in appellate reversal of the dismissal of the case. While such a holding would make sense if the identification of the Constitution and Bylaws were uncertain as a result, the Court’s opinion expressed no such reservation. The issue in the case was whether any of the denominational defendants had the authority to hire or fire a youth pastor at the local church. The Constitution and Bylaws allegedly either did not authorize that level of denominational control or prohibited it as noted in the affidavits. Thus, a wrongful hiring or failure to fire claim would not rise above the local church absent authority or actual control. While some denominations are vertically integrated and hierarchical in employment issues, not all are. The autonomy of the local church as to employment issues could limit such a claim to the local church.
Stapler rules, requiring a document elsewhere in the court record to be attached to a particular pleading or other document to be considered, seem anachronistic. Such a rule would only make sense in those remaining states that lag behind in computerization of court records. Unless identification of the document is reasonably in doubt, if it can be considered at all and is not considered only because it is not stapled to the document considered, seems a huge waste of time and litigation cost both for the litigants and the courts. Even in a state like Oklahoma that has generally good computer access to civil case records but where the underfunding of the courts results in judges in the trial courts not having staff attorney assistance such a rule would probably not be enforced absent extra-ordinary circumstances. Nevertheless, church lawyers ever mindful of the resource limitations of their offering funded clients still must anticipate such things and prepare document meticulously.