Tag: church employment

STRATEGICALLY LIMITING LITIGATION

Lawyers have been guilty at times of being mechanistic in responding to the circumstances of a case as if all cases are the same. Fortunately, even though often overwhelmed by numerous cases and with too few staff attorneys to support judicial decisionmaking, judges sometimes are creatively able to reign in a lawsuit.

A good example of this is the preliminary court order in Stabler v Congregation Emanu-El, 2017 WL 3268201 (SD NY 2017). The Plaintiff alleged she was a victim of gender discrimination, age discrimination, and disability discrimination when at age 62, with 17 years of tenure, her job as Librarian ended. She claimed it ended due to unlawful discrimination even though it was characterized, she alleged, by the Defendant as elimination of her position. Unlike many such cases which are nothing more than a claim in search of a factual basis, the Plaintiff alleged sufficient supporting facts causing the Court to deny the Defendants’ Motions to Dismiss. But, rather than simply leave the parties to the usual discovery war, the Court limited discovery solely to the issue of whether the Ministerial Exception applied as pled by the Defendants. The lesson in litigation cost control might be obvious: the Plaintiff’s claim would likely rise or fall on that issue so handle it first and exclusively.

The Plaintiff’s own allegations of her performance “could indicate that she did act as a minister of the Congregation by furthering its mission.” Her claimed accomplishments indicated she had not merely been a custodian of tomes but rather “created a functioning Judaica library” in the impressive and possibly well-known church library. Plaintiff also served on committees with substantial influence. Librarians, so it appeared to have been alleged, of this caliber are not mere custodians but actually define and protect the legacy of the religious scholarship of the church or denomination. A future decision of this Court might become a classic example of when the job title (e.g., “librarian”) does not matter and the substantive nature of the position does in the application of the Ministerial Exception. Best, it might become so by an economically sound litigation limitation.

PAROCHIAL SCHOOLS AS RELIGIOUS ORGANIZATIONS

It would almost seem counterintuitive to suggest that a parochial school is not a religious organization.  The parochial school may be required to teach secular courses to comply with educational or even accreditation standards but unless there is no significant religious component in the curriculum it would seem unreasonable to view it as secular and not parochial.  Nevertheless, the issue seems to be on the table more than it should be.

In Miriam Grussgott v Milwaukee Jewish Day School, Inc., Order, (ED Wisc. 2017), the Plaintiff attempted to persuade the federal court that an Americans with Disabilities Act claim applied to a parochial school.  The Court rejected the claim and entered summary judgment for the parochial school under the Ministerial Exception of the First Amendment.  The Court found that the plaintiff, as a teacher of Hebrew to second and third graders, was a ministerial employee.  While the plaintiff argued the Hebrew language was merely cultural and historical, the parochial school claimed it was religious in nature because of inherent symbolism and other attributes.  Also, the parochial school was able to prove the plaintiff taught Jewish religious rites to the elementary age school children.  The Court refused to put a stopwatch to these duties to determine which predominated in the schedule or the curriculum.  While the plaintiff was not ordained or certified by an ecclesiastical body, plaintiff admitted “teaching a great deal about Judaism and specifically that her role was closely linked to Defendant’s Jewish mission.”  That admission would seem to end the dispute as to whether her role was subject to the Ministerial Exception.

One interesting aside in the opinion was that the plaintiff asserted the school’s employment manual contained an anti-discrimination clause that expressly forbade religious discrimination.  In other words, the plaintiff claimed the Ministerial Exception had been overridden by the contractual nature of the manual.  The Court held:  “This single provision of the Manual cannot stem the tide of other evidence cited above demonstrating Defendant’s religiosity.  Defendant unquestionably qualifies as a Jewish religious organization.”

Lessons for parochial schools may include assuring that their own employment manual does not create an exception to the Ministerial Exception in their region by its wording.  It might also mean that it is good practice to carefully describe in the manual the overriding religious duties of the role of teacher, regardless of educational discipline or expertise, in the religious school so that there is no reasonable dispute about the nature of the position.  Assumptions do not play well as evidence.

INVOLUNTARY PASTOR RETIREMENT

Most pastors at some point in their lives begin planning retirement and grooming a successor or teaching leaders how to search for one.  Sometimes, however, someone else wants to impose retirement on the pastor.  In churches that have a high turnover among their pastors, this presents no problem because the revolving door solves the problem.  But, when a pastor has been on station a long time, and is not ready to step aside even though someone wants the pastor to do so, disputes arise.

In Gregorio v Hoover, Memorandum Opinion (DDC 2017), the denominational foundation loaned money to the local church and the denomination co-signed.  The church in a side contract agreed to pay the loan and the denomination agreed to hold legal title until the loan was repaid or refinanced.  Once the loan was retired, the denomination was expected to transfer legal title to the local church corporation.  The payments were timely made by the local church and the loan was retired.  The local church had no turnover in the position of pastor.  The denomination paid a small stipend to the pastor but his income was for the most part earned from the local church.  Two decades passed.  The denomination stopped paying the small stipend to the pastor.  Three years later the denomination advised the pastor of the local church he would retire because the denomination wanted to appoint “younger people” to take his place.  The pastor declined and suggested the denomination had no authority to appoint or terminate the pastor of that particular local church.  The denomination locked the pastor out.

The pastor withdrew the age discrimination claim probably because the pastor had not exhausted administrative remedies by filing a complaint with the federal EEOC and obtaining a right to sue letter.  However, because the pastor was the founding pastor of the local church, the local church’s corporate identity was and had always been owned and controlled by the pastor.  Thus, the pastor was able to keep his claim alive by suing the denomination for failing to transfer legal title after the loan was repaid.  The pastor was able to make a breach of contract claim also because the promised small stipend was two years in arrears after being paid for nearly two decades.  The Ministerial Exception does not override a contract damages claim, even if it might not allow a court to compel reinstatement.  Finally, the pastor asserted a claim against the denomination for unjust enrichment because the legal title was not transferred.

The success or failure of these particular claims lies in the future but there are lessons to learn from this order overruling the denomination’s motions to dismiss.  Denominations that have longstanding engagements with pastors should review the governing documents, including real estate titles, to make certain current denominational retirement policies are reflected and that a retirement strategy has been agreed upon.  A financial incentive to obtain agreement with updated governing documents will almost always be cheaper than litigation.  A contract will often be enforced at least as to money damages.  Contracts are enshrined in Article 1, Section 10 of the United States Constitution, co-equally with the First Amendment, which is why the Ministerial Exception or the Ecclesiastical Abstention Doctrine may not eclipse the contract.

FIRING THE ORGANIST

Federal employment laws do not apply to ministers pursuant to the Ministerial Exception Doctrine.  The label “Ministerial Exception Doctrine” refers to a branch of decisions arising under the First Amendment.  It is a subset of the Ecclesiastical Exception Doctrine.  The Ecclesiastical Exception Doctrine is an outgrowth from the Establishment Clause of the First Amendment.  The Ministerial Exception Doctrine generally prohibits a court from exercising jurisdiction over the employment of ministers (which includes, of course, pastors, priests, and many other titles).  The problem remaining is identifying the duties in churches that are equal to or equivalent to ministers in such a way as to trigger the Ministerial Exception Doctrine.

Many religious organizations have tried labeling their employees, all of them, as “ministers” or describing their jobs to include one or more typically ministerial duties.  The scope of the Ministerial Exception Doctrine was confirmed in Hosanna Tabor Evangelical Lutheran Church & Sch. v EEOC, 565 U.S. 171 (2012).  In Hosanna Tabor, the employee was a religious school teacher that had ministerial duties such as teaching religion classes.  But, the outer perimeter of the Ministerial Exception Doctrine remains fuzzy.

In Sterlinski v The Catholic Bishop of Chicago, Memorandum Opinion and Order (ND ILL. ED 2017), the Plaintiff was demoted from the position of Director of Music.  There was no viable claim based solely on the demotion because the position of Director of Music was held to be a ministerial position.  The position was found to be ministerial because the Director of Music was responsible for selecting the liturgical music, holding practice for the church choirs, church management activities and representing the church at denomination level music committee meetings.  Claims for the firing were dismissed.  The holding that a Director of Music was sufficiently ministerial to trigger the Doctrine was to be expected.

But, Plaintiff was demoted from the full time position of Director of Music with the aforementioned duties to a part-time position as organist.  As a part-time organist, Plaintiff did not seem based on the record before the Court to have discretion over worship or other religious activities.  Indeed, the Court mused that if the part-time organist merely played what was assigned by someone else, the position might no longer be sufficiently ministerial to trigger the Doctrine.  Because the record did not appear sufficiently developed to fully describe Plaintiff’s actual duties as part-time organist, the Court refused to dismiss the firing claims and ordered the parties to conduct discovery limited to the duties of the part-time organist.

One lesson to be derived is that in employment decisions, mercy will be punished.  If the Plaintiff had been fired while employed as Director of Music, no claim would have remained due to the Ministerial Exception Doctrine.  Another lesson is that churches should not expect the secular world to understand that public worship musicians and vocalists “set the stage” for preaching and are as important in worship.  That they do not is surprising because there are similar situations such as a professional baseball game that without an organist, at least during the “7th inning stretch” might be disquieting or like a rock concert without drums.  A final lesson is that the employment relationship rarely survives partial measures like a demotion from full time to part-time or a substantial reduction in authority.  A clean break is usually better.