Equal Employment Opportunity Commission v. The Roman Catholic Dioceses of Raleigh 99-1860 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 99-1860 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. THE ROMAN CATHOLIC DIOCESE OF RALEIGH, NORTH CAROLINA AND SACRED HEART CATHEDRAL, Defendants-Appellees. On Appeal from the United States District Court for the Eastern District of North Carolina PETITION OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ROBERT J. GREGORY Senior Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4059 STATEMENT OF PURPOSE On May 22, 2000, a panel of this Court affirmed the dismissal of the Commission's case, filed under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ("Title VII").<1> See EEOC v. Roman Catholic Diocese of Raleigh, North Carolina, 2000 WL 667370 (4th Cir. May 22, 2000). The panel specifically ruled, inter alia, that the constitutionally-based "ministerial exception" to federal statutes such as Title VII applied to a lay part-time music teaching position in the defendants' parochial school. In the Commission's view, rehearing should be granted in this case because "[a] material factual or legal matter was overlooked in the [panel] decision" and the decision "is in conflict" with decisions of this Court and other courts of appeals "and the conflict is not addressed in the opinion." 4th Cir. R. 40(b). The panel decision is in conflict with this Court's decision in Dole v. Shenandoah Baptist Church, 899 F.2d 1389 (4th Cir. 1990). The panel decision is also in conflict with at least two other circuit court decisions: Geary v. Visitation of the Blessed Virgin Mary Parish Sch., 7 F.3d 324 (3d Cir. 1993); DeMarco v. Holy Cross High Sch., 4 F.3d 166 (2d Cir. 1993). Neither of these conflicts is addressed in the panel opinion. ARGUMENT THE COURT SHOULD GRANT REHEARING EN BANC WITH RESPECT TO THE PANEL'S RULING THAT THE MINISTERIAL EXCEPTION APPLIES TO A MUSIC TEACHING POSITION IN A PAROCHIAL SCHOOL WHERE THE OCCUPANT OF THE POSITION IS A LAY PERSON WITH NO SPECIAL THEOLOGICAL TRAINING WHO PERFORMS NO SACERDOTAL FUNCTIONS. A. The Panel Decision Cannot Be Reconciled With This Court's Decision In Dole v. Shenandoah Baptist Church This case involves multiple claims of sex discrimination and retaliation brought against the Roman Catholic Diocese of Raleigh, North Carolina and Sacred Heart Cathedral (referred to collectively as "SHC"). The Commission is suing at the behest of a charging party, Joyce Austin, who worked as a choir director for the church and a music teacher in SHC's parochial school. The petition for rehearing focuses solely on the claims relating to the music teaching position, a discrete employment position with no connection to the choir director position.<2> The record shows that Austin is a lay person with a general background in music education. 2000 WL 667370, at *1. Austin has no special theological training. As part-time music teacher at SHC, Austin was responsible for "the music program in K-8," "handbells," and "two extracurricular musical performances." Joint Appendix ("J.A.") at 95. Austin's job was to ensure that "state guidelines are being met in all grades for Music Education."<3> Id. at 99. Austin was also expected to "[s]erve as a resource person for all musical activities in the school" and to "[a]ssist in the music preparation for school liturgies." Id. at 95. The panel ruled that the teaching position was "ministerial" in nature because music has "spiritual significance" and some of the duties performed by Austin were religious in nature. 2000 WL 667370, at *9. The panel decision cannot be reconciled with this Court's decision in Dole v. Shenandoah Baptist Church, 899 F.2d 1389 (4th Cir. 1990). Shenandoah Baptist involved claims brought under the Fair Labor Standards Act ("FLSA") and the Equal Pay Act ("EPA") on behalf of a number of teachers at a Christian school.<4> The defendant invoked the ministerial exception, arguing that the exception applied because the school was an arm of the Shenandoah Baptist Church, the teachers considered teaching "to be their personal ministry," "all classes [were] taught from a pervasively religious perspective," and "teachers [led] students in prayer and [were] required to subscribe to the Shenandoah statement of faith as a condition of employment." Id. at 1396. This Court held that the teaching positions did not fall within the ministerial exception, stressing that the teachers were not ordained ministers, did not perform "sacerdotal functions," did not serve as "church governors," and did not belong to any "clearly delineated religious order." Id. In this Court's view, the mere fact that the teachers furthered the religious mission of the Baptist Church, in some broad sense, was not enough to bring the teachers within the contours of the ministerial exception. Id. at 1391-92 (noting the defendant's argument that Christian education was a "vital part of its mission," rooted in the "Great Commission" of Matthew 28:19-20). In this case, Austin did not belong to any "clearly delineated religious order." Nor did she perform "sacerdotal" functions in her capacity as a part-time music teacher. Although there may have been some religious aspects to her job, that was equally true -- indeed, more so -- in Shenandoah Baptist, where the teachers viewed themselves as ministers and taught from a pervasively religious perspective. If the ministerial exception did not apply to the teaching positions at issue in Shenandoah Baptist, it cannot possibly apply to Austin's part-time music teaching position. In Shenandoah Baptist, this Court stressed that the ministerial exception was a "narrowly construed" exception to coverage, applicable to a relatively small number of positions involving a religious institution's spiritual leaders. 899 F.2d at 1397; see also Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164, 1168 (4th Cir. 1985) (exception applies to spiritual leaders with "special theological training"). There is nothing "narrowly construed" about the panel's "robust" application of the ministerial exception in this case. See 2000 WL 667370, at *5. In essence, the panel decision treats every position with religious overtones as "ministerial" in nature and, thus, categorically excluded from federal statutes such as Title VII. Such an expansive view of the ministerial exception runs directly counter to Shenandoah Baptist, which rejected a bid for "ministerial" status in a closely analogous legal and factual context. This Court should grant rehearing to resolve the conflict between the panel decision and this Court's decision in Shenandoah Baptist. B. The Panel Decision Conflicts With The Rulings Of Other Circuit Courts The ministerial exception has been addressed in a number of circuit court decisions. At least two circuit courts have addressed the exception in the specific context of lay teaching positions in parochial schools. See Geary v. Visitation of the Blessed Virgin Mary Parish Sch., 7 F.3d 324 (3d Cir. 1993); DeMarco v. Holy Cross High Sch., 4 F.3d 166 (2d Cir. 1993). In each case, there was evidence that the teaching position had at least some religious significance. Geary, 7 F.3d at 331 (teacher had a "general employment obligation to be a visible witness to the Catholic Church's philosophy and principles"); DeMarco, 4 F.3d at 172 (teacher was required to attend Mass and lead his students in prayer as part of the "spiritual mission" of the Catholic Church). In each case, the church defendant asked for a blanket exclusion for the teaching position, invoking the ministerial exception. In each case, the court rebuffed the church defendant, stressing that the ministerial exception is limited to cases involving the employment of "clergy or religious leaders." Geary, 7 F.3d at 331; DeMarco, 4 F.3d at 171-72; see also Weismann v. Congregation Shaare Emeth, 38 F.3d 1038, 1044-45 (8th Cir. 1994) (age discrimination statute applied to employment position with Temple despite the fact that the occupant of the position had some religious duties); cf. EEOC v. Catholic Univ. of Am., 83 F.3d 455, 464 (D.C. Cir. 1996) (applying the ministerial exception to a nun who was denied a tenured position in the Canon Law Faculty at the Catholic University of America, where 95 percent of the individuals enrolled in the Canon Law Department were "ordained or members of a religious order" and the primary role of the Canon Law Faculty was to instruct students "in the 'fundamental body of ecclesiastical laws' that governs the Church's sacramental life"). In lieu of a per se exclusion for teaching positions of this kind, the courts in these cases adopted an approach that seeks to balance legitimate First Amendment concerns with the fundamental public policies furthered by the anti-discrimination statutes. Specifically, these courts allowed the claims to proceed forward but charged the district court with the responsibility of ensuring that, if the plaintiff challenged "the validity, existence or 'plausibility' of a proffered religious doctrine," steps would be taken to avoid the "risk of [excessive government] entanglement." Geary, 7 F.3d at 330; accord DeMarco, 4 F.3d at 171-72. There are many positions with religious employers that have a religious component, even though they are not "ministerial" in nature. Permitting individuals in these positions to sue under Title VII raises some risk of infringing upon the religious clauses of the First Amendment should the defendant proffer a religious justification for the adverse employment action, e.g., the individual engaged in conduct that violates our religious tenets, and should the plaintiff attack that justification as insincere or invalid. That risk, however, can be successfully managed by carefully vetting the content of the plaintiff's pretext evidence, thus ensuring that the line between church and state is maintained. Weissman, 38 F.3d at 1045 (opining that the line can be maintained except in "rare cases" where "a lay employee's relationship with a religious institution is so pervasively religious that even mere pretext inquiry poses a significant risk of First Amendment infringement"). The result is that the church defendant is protected against unwarranted governmental intrusion while the aggrieved individual is allowed to vindicate his or her rights under the anti-discrimination statutes. The panel did not adopt this well-established approach in ruling upon the part-time music teaching position in this case. Instead, the panel converted the teaching position into a "ministerial" position, categorically excluding the position from the reach of Title VII. To date, SHC has not proffered a religious justification for its treatment of Austin. There is every reason to believe that this case can be litigated without implicating in any way the religious tenets of the Catholic Church. Yet, out of a concern that secular government not "trespass[] on the most spiritually intimate grounds of a religious community's existence," 2000 WL 667370, at *3, the panel has placed a lay teaching position in a parochial school completely beyond the reach of Title VII. Such an expansive view of the ministerial exception is unprecedented.<5> C. The Panel Decision Has Serious Implications For The Effective Enforcement Of The Anti-Discrimination Statutes With Respect To Lay Teaching Positions In Parochial Schools The panel decision has significant implications for the effective enforcement of the anti-discrimination statutes in parochial schools. Thousands of individuals work as teachers in parochial schools. Many of these individuals are lay persons who are hired as instructors in largely secular areas, such as math, science, history, art, and music (as in this case). Nevertheless, because these individuals work in a religious setting, they are often assigned some religious duties. If nothing else, they are expected to be "a visible witness" to the church's "philosophy and principles." Geary, 7 F.3d at 331. Under the panel decision, these individuals may well be elevated to the status of "ministers," excluded from the protections of the anti-discrimination statutes. Of course, a church is entitled to prefer its own members in hiring teachers for its religious schools. See 42 U.S.C. § 2000e-2(e)(2) (setting forth a defense in Title VII cases for a church-run school that favors the employment "of individuals of a particular religious"). A church is entitled to require that these teachers adhere to the church's religious beliefs. See, e.g., Little v. Wuerl, 929 F.2d 944 (3d Cir. 1991). Where, however, a church hires a lay person to teach in a parochial school, the person suffers discrimination on the basis of a protected trait other than religion (e.g., race or sex), and the person's claim does not implicate the validity of the church's religious tenets, there is no justification (constitutional or otherwise) for giving the church a free pass to discriminate. Churches are not above the law, nor are their employees, even those who perform some religious duties, categorically excluded from the protections of federal statutes such as Title VII. . II. THE PANEL SHOULD GRANT REHEARING WITH RESPECT TO ITS RULING THAT THE MINISTERIAL EXCEPTION APPLIES TO THE TEACHING POSITION AT ISSUE IN THE CASE WHERE THE PANEL FAILED TO CONSTRUE THE EVIDENCE IN THE LIGHT MOST FAVORABLE TO THE COMMISSION IN ASSESSING THE RELIGIOUS NATURE OF THE POSITION. Although there are grounds for granting en banc review in this case, the panel can easily rectify its own error. This appeal arose in the context of a motion to dismiss for lack of subject matter jurisdiction. Such a motion is subject to a strict standard of review. The motion may be granted "'only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.'" Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). The motion may not be granted where, construing the evidence in the light most favorable to the non-moving party, "a genuine issue of material fact exists." Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). The panel did not adhere to this standard of review. The panel ruled that the ministerial exception applied to the part-time music teaching position because "Austin's duties at the Cathedral school appear to have gone far beyond the teaching of music classes." 2000 WL 667370, at *9 (emphasis added). This is an interesting choice of words, implying that the record is unclear on this point. At this stage of the litigation, any doubt on the jurisdictional facts is to be resolved in favor of the Commission, not SHC, which is asking for the extraordinary remedy of dismissing otherwise viable claims of discrimination under Title VII. Further, even assuming that Austin was required to perform some religious duties as music teacher, that does not, by itself, qualify the teaching position for "ministerial" status. The ministerial exception applies only when the "primary duties" of the position consist of spiritual activities. Rayburn, 772 F.2d at 1169 (emphasis added). The panel never resolved the critical issue of whether the religious duties performed by Austin, if any, were the primary duties of the music teaching position. It merely referenced what it perceived as the religious aspects of the position and concluded that the ministerial exception applied. In truth, there are strong indications that the music teaching position was essentially secular in nature. The panel stressed that Austin was assigned the duty of playing the piano at Mass. 2000 WL 667370, at *9. Yet, that duty was included in a document that otherwise described the music curriculum at SHC in entirely secular terms. See supra n.3. The panel also stressed that Austin assisted in the music preparation for school liturgies. Yet, that responsibility was listed last among the five job responsibilities for the music teaching position, preceded by, among other things, "[r]esponsible for the music program in K-8." J.A. at 95. There is evidence that SHC viewed the music teaching position in essentially secular terms, i.e., as a vehicle for ensuring that "state guidelines are being met in all grades for Music Education." Id. at 99. This is not a case in which the "'jurisdictional facts are not in dispute.'" Evans, 166 F.3d at 647. This is a case in which there are, at the very least, disputed issues of fact bearing upon the jurisdictional issue. The panel should re-examine the factual record and construe the evidence on the key jurisdictional facts in a light most favorable to the Commission. CONCLUSION Rehearing should be granted with respect to that portion of the panel decision applying the ministerial exception to the part-time music teaching position. Respectfully Submitted, C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ROBERT J. GREGORY Senior Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 June 19, 2000 (202) 663-4059 CERTIFICATE OF SERVICE I, Robert J. Gregory, hereby certify that on this 19th day of June, 2000, two copies of the attached petition for rehearing were sent by first-class mail, postage prepaid, to the following counsel of record: Cecil W. Harrison, Jr. Robin Tatum Morris POYNER & SPRUILL, L.L.P. 3600 Glenwood Avenue, P.O. Box 10096 Raleigh, N.C. 27605-0096 Robert J. Gregory 1 The panel was comprised of Chief Judge Wilkinson, Judge Niemeyer, and Senior Judge Hamilton. 2 From 1990 to 1995, Austin worked as SHC's Director of Music Ministry. "This position encompassed both responsibility for music at the Cathedral [as choir director] and teaching music at the Cathedral school." 2000 WL 667370, at *1. Austin was removed from the Director of Music Ministry position in 1995 and relegated to the position of part-time music teacher in the parochial school. Id. at *2. The claims of discrimination with respect to the music teaching position all arose after Austin was removed from the Director of Music Ministry position (see id. at **2-3) and, thus, have no connection to the choir director position. 3 The music curriculum focused on such matters as "rhythm," "melody," "form," "timbre," "expression," "careers in music," "ballet," "opera," "jazz," & "music history." J.A. at 96. 4 Although Shenandoah Baptist involved claims under the FLSA and EPA, this Court, in applying the ministerial exception, relied heavily on Title VII case law, including this Court's own decision in Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164 (4th Cir. 1985). 5 The panel decision is also inconsistent, on other grounds, with a recent circuit court decision, Bollard v. California Province of the Soc'y of Jesus, 196 F.3d 940 (9th Cir. 1999). Bollard involved a position that was indisputably "ministerial," i.e., a novice in the Society of Jesus studying to become a priest. Id. at 944. The court ruled, nonetheless, that the ministerial exception did not bar the plaintiff's Title VII action because the case was not about the right of a church "to choose its representatives using whatever criteria it deems relevant," a choice "to which we would simply defer without further inquiry." Id. at 947. Instead, the case involved a claim of alleged discrimination in working conditions, a claim that did not implicate the "protected-choice rationale" of the ministerial exception. Id. This case is just like Bollard. The Commission's claims do not implicate SHC's prerogative to select who it wishes for the teaching position. The Commission's claims allege on-going discrimination in working conditions with respect to that position. See 2000 WL 667370, at **2-3. Under Bollard, these claims are viable even if the part-time music teaching position is viewed as "ministerial."