United States District Court, D. Nebraska
THOMAS D. THALKEN, Magistrate Judge.
This matter is before the court after an evidentiary hearing on April 13, 2015, regarding the defendant's ministerial exception affirmative defense. A transcript (Tr.) of the hearing was filed on April 20, 2015. See Filing No. 113. The plaintiff was represented by Terry A. White and the defendant was represented by Jerald L. Rauterkus and Heather B. Veik. The court heard testimony from Pastor Kevin McDonald (Pastor McDonald). The court took judicial notice of all evidence previously filed in this matter, especially those exhibits and filings referenced by the parties during the hearing. The defendant offered two additional documents (Ex. 101 and 102), which were not received and will not be considered as evidence in this matter. The plaintiff filed a brief (Filing No. 97) and a supplemental brief (Filing No. 109-1) opposing application of the exception. The defendant filed a brief (Filing No. 100) and a supplemental brief (Filing No. 111-1) supporting application of the exception.
The defendant, an Evangelical Presbyterian Church, employed the plaintiff from August 2010, until July 2012. See Filing No. 80 - Pretrial Order (PTO) ¶¶ 17, 62-67; Filing No. 57 - Ex. 3 McDonald Depo. p. 6; Filing No. 57 - Ex. 6 Leuders Depo. p. 7-8. The plaintiff alleges the defendant terminated his employment due to his gender and marital status, and in retaliation for complaining about sexual harassment committed by a pastor who was the plaintiff's direct supervisor. See Filing No. 1 - Complaint ¶¶ 11, 15. With regard to his marital status, the plaintiff alleges he filed for divorce during his employment and became the single parent of four children shortly before his termination. Id. ¶ 10. Prior to his divorce, the plaintiff alleges he was subjected to "episodes of uninvited touches, elongated frontal body hugs, back rubs and neck massages, private office visits, and unsolicited invitations for drinks, dinner and companionship, " on a daily basis. Id. ¶ 11. Based on these allegations, the plaintiff asserts claims against the defendant for: 1) gender discrimination, in violation of Title VII of the Civil Rights Act of 1967, as Amended, 42 U.S.C. § 2000e-2, et seq. (Title VII), and the Nebraska Fair Employment Practices Act, Neb. Rev. Stat. § 48-1101, et seq. (NFEPA); 2) marital status discrimination, in violation of the NFEPA; and 3) retaliation, in violation of Title VII and the NFEPA. See Filing No. 1 - Complaint. The defendant generally denies the plaintiff's allegations, alleging the plaintiff resigned for personal reasons. See Filing No. 13 - Answer.
On March 6, 2015, the court denied the defendant's motion for summary judgment finding material issues of fact existed about whether (1) the alleged sexual harassment was severe and pervasive enough to create a hostile work environment; and (2) the plaintiff was reasonable in reporting sexual harassment to the person who he wrongly believed to be his immediate supervisor. See Filing No. 82. Additionally, the court denied the defendant's motion seeking application of the First Amendment to the U.S. Constitution's ministerial exception to employment discrimination statutes to shield the defendant from liability. Specifically, the court held material issues existed about whether the defendant employed the plaintiff as a "minister, " such status being a prerequisite to applying the ministerial exception. Id. at 4-5. Accordingly, the court held the April 13, 2015, hearing to allow the parties to present any additional evidence or argument related to the defendant's affirmative defense for resolution of the matter prior to trial.
A. Ministerial Exception
"The First Amendment provides, in part, that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.'... Both Religion Clauses bar the government from interfering with the decision of a religious group to fire one of its ministers." Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 132 S.Ct. 694, 702 (2012). "Since the passage of Title VII... and other employment discrimination laws, the Courts of Appeals have uniformly recognized the existence of a ministerial exception, ' grounded in the First Amendment, that precludes application of such legislation to claims concerning the employment relationship between a religious institution and its ministers." Id. at 705-06 (agreeing "that there is such a ministerial exception"); see Scharon v. St. Luke's Episcopal Presbyterian Hosps., 929 F.2d 360, 362-63 (8th Cir. 1991) (applying exception to primarily ministerial position). The ministerial "exception operates as an affirmative defense to an otherwise cognizable claim...." Hosanna-Tabor, 132 S.Ct. at 709 n.4.
The Court determined,
Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.
Hosanna-Tabor, 132 S.Ct. at 706. The Court reasoned statutorily forcing retention of an unwanted minister "concerns government interference with an internal church decision that affects the faith and mission of the church itself." Id. at 707.
As a threshold matter, "the employer must be a religious institution and the employee must have been a ministerial employee." Conlon v. InterVarsity Christian Fellowship, 777 F.3d 829, 834 (6th Cir. 2015) (relying on Hosanna-Tabor, 132 S.Ct. at 699) (female spiritual leader terminated after divorce while two male employees retained). The parties agree the defendant is a religious institution. See Filing No. 80 - PTO ¶ 4; Filing No. 57 - Ex. 3 McDonald Depo. p. 6; Filing No. 57 - Ex. 6 Leuders Depo. p. 7-8; Filing No. 62 - Response Brief p. 2 (noting the plaintiff does not dispute the defendant's description of the defendant). The parties dispute whether the plaintiff's employment was ministerial.
The Supreme Court provided no "rigid formula for deciding when an employee qualifies as a minister, " but the "exception is not limited to the head of a religious congregation." Hosanna-Tabor, 132 S.Ct. at 707. The Court relied on facts such as whether (1) the church held the employee out distinct from other members,  (2) the position held a title reflecting specialized training, (3) the employee held himself out as a minister according to the terms of the church, and (4) the job duties reflect a role in conveying the church's message and carrying out its mission. Id. at 707-08.
The court conducts "a fact-intensive inquiry" when determining whether an employee works in a ministerial capacity for purposes of the exception. Cannata v. Catholic Diocese of Austin, 700 F.3d 169, 176 (5th Cir. 2012) (holding no genuine dispute ministerial exception applied to ADEA and ADA claims for church Music Director who engaged in some secular duties, but who, by choosing music and playing the piano at Mass, also actively participated in the liturgical assembly playing an integral role in furthering the church's mission). The court must make "a determination of the functions of a church employee." Ross v. Metropolitan Church of God, 471 F.Supp.2d 1306 (N.D.Ga. 2007) (applying exception to director of Worship Arts Department of church) (listing cases). "However, whether the exception attaches at all is a pure question of law which this court must determine for itself." Conlon, 777 F.3d at 834 ("consider[ing] whether the ministerial exception would otherwise apply to [certain] facts, " prior to considering if the employer waived the exception); see Miller v. Bay View United Methodist Church, Inc., 141 F.Supp.2d 1174, 1181 (E.D. Wis. 2001) (applying ministerial exception to choir director as a matter of law); see also Hough v. Roman Catholic Diocese of Erie, 2014 WL 834473, at *5 (W.D. Pa. Mar. 4, 2014) (noting the defendant's affidavits, alone, as evidence the plaintiffs' duties "reflected a role in conveying the Church's message and carrying out its mission" were insufficient to apply the ministerial exception prior to discovery).
Courts evaluating the propriety of the ministerial exception for employees explore the individual's functional role in the work setting and within the church. Courts generally apply the exception to a "called" employee or those employed based on religious expertise. See Hosanna-Tabor, 132 S.Ct. at 707-08; Herzog v. St. Peter Lutheran Church, 884 F.Supp.2d 668 (N.D. Ill. 2012) (applying exception to age, gender, and marital status discrimination claims after termination for called teacher despite teaching mostly secular subjects); Shaliehsabou v. Hebrew Home of Greater Washington, Inc., 247 F.Supp.2d 728 (D. Md. 2003) (applying exception on FLSA claim to kosher supervisor hired for religious expertise, and who claimed clergy on taxes, performed non-routine tasks, including sacerdotal functions). However, court generally allows employment discrimination cases to proceed where the employee is a lay teacher and for those whose duties are entirely secular. Davis v. Baltimore Hebrew Congregation, 985 F.Supp.2d 701 (D. Md. 2013) (denying application of ministerial exception to employee whose primary duties-maintenance, custodial, and janitorial work-were entirely secular); Braun v. St. Pius X Parish, 827 F.Supp.2d 1312 (N.D. Okla. 2011) (rejecting ministerial exemption for lay teacher of secular subjects who was not member of parochial school faith); Herx v. Diocese of Ft. Wayne-South Bend Inc., 2014 WL ...