No. 09-1134 and No. 09-1135 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ____________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, and CHERYL PERICH, Intervenor-Plaintiff-Appellant, v. HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCH AND SCHOOL, Defendant-Appellee. ____________________________________________ On Appeal from the United States District Court For the Eastern District of Michigan, No. 07-14124 The Honorable Patrick J. Duggan ____________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ____________________________________________ JAMES L. LEE DORI K. BERNSTEIN Deputy General Counsel Attorney VINCENT J. BLACKWOOD U.S. EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 131 M Street, N.E., Room 5NW10R Assistant General Counsel Washington, D.C. 20507 (202) 663-4734 TABLE OF CONTENTS Page TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iii STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 DISTRICT COURT DECISION . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 THE DISTRICT COURT MISAPPLIED THE MINISTERIAL EXCEPTION TO PRECLUDE THIS ADA RETALIATION SUIT ON BEHALF OF A PAROCHIAL SCHOOL TEACHER WHOSE PRIMARY DUTIES WERE SECULAR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 A. The ADA Clearly Manifests Congress's Intent To Protect The Employees Of Religious Entities From Discrimination Because Of Disability; Retaliation For Opposing Discrimination; And Interference, Coercion, Intimidation, Or Threats Directed At Those Who Seek To Exercise Statutory Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 B. The Ministerial Exception Is A Judicially Crafted Doctrine That Immunizes Religious Employers From The Statutory Discrimination Claims of Employees Whose Primary Duties Are Religious Or Spiritual Rather Than Secular . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 C. The District Court Misapplied The Ministerial Exception To Preclude This Suit Because The Primary Duties Perich Performed As An Elementary School Teacher Were Secular Rather Than Religious . . . . . . . . . . . . . . . 33 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 ADDENDUM: Designation of Relevant District Court Documents CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Page CASES Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .56 Clapper v. Chesapeake Conference of Seventh-Day Adventists, 1998 WL 904528 (4th Cir. 1998) . . . . . . . . . . . . . . . . . . 37, 38, 39 Cline v. Catholic Diocese of Toledo, 206 F.3d 651 (6th Cir. 2000) . . . . . . . . . . . . 21, 22, 25, 48, 49, 50, 51 DeMarco v. Holy Cross High School, 4 F.3d 166 (2d Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . 34, 36 Dickinson v. United States, 346 U.S. 389 (1953) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Dole v. Shenandoah Baptist Church, 899 F.2d 1389 (4th Cir. 1990) . . . . . . . . . . . . 32, 35, 38, 39, 42, 44, 55 EEOC v. Catholic University of America, 83 F.3d 455 (D.C. Cir. 1996) . . . . . . . . . . . . . . . . . . 32, 33, 36, 46 EEOC v. Fremont Christian School, 781 F.2d 1362 (9th Cir. 1986) . . . . . . . . . . . . . . . . . . 25, 35, 43, 55 EEOC v. Mississippi College, 626 F.2d 477 (5th Cir. 1980) . . . . . . . . . . . . . . . . . . . . .26, 35, 43 EEOC v. Southwestern Baptist Theological Seminary, 651 F.2d 277 (5th Cir. 1981) . . . . . . . . . . . . . . . 32, 36, 39, 40, 42 Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . 56, 57 Geary v. Visitation of the Blessed Virgin Mary Parish School, 7 F.3d 324 (3d Cir. 1993) . . . . . . . . . . . . . . . . . . . . . 34, 36, 43 Guinan v. Roman Catholic Archdiocese of Indianapolis, 42 F.Supp.2d 849 (S.D. Ind. 1998) . . . . . . . . . . . . . . . . . . 35, 36, 44 Hollins v. Methodist Healthcare, Inc., 474 F.3d 223 (6th Cir. 2007) . . . . . . . . . . . . . . .21, 28, 30, 31, 41, 50 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 McClure v. Salvation Army, 460 F.2d 553 (5th Cir. 1972) . . . . . . . . . . . . . . . . . . . . . . . . 29 Minker v. Baltimore Annual Conference of the United Methodist Church, 894 F.2d 1354 (D.C. Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . 30 Ohio Civil Rights Commission v. Dayton Christian Schools, 477 U.S. 619 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Petruska v. Gannon University, 462 F.3d 294 (3d Cir. 2006) . . . . . . . . . . . . . . . . . . 25, 28, 29, 30 Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164 (4th Cir. 1985) . . . . . . . . . . . . 25, 29, 30, 31, 46, 50, 56 Redhead v. Conference of Seventh-Day Adventists, 440 F.Supp.2d 211 (E.D.N.Y. 2006) . . . . . . . . . . . . . . . . . . 33, 35, 36 Robinson v. Shell Oil Co., 519 U.S. 337 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Schleicher v. Salvation Army, 518 F.3d 472 (7th Cir. 2008) . . . . . . . . . . . . . . . . . . . . .28, 29, 30 Tomic v. Catholic Dioceses of Peoria, 442 F.3d 1036 (7th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . 42 Weishuhn v. Catholic Diocese of Lansing, 756 N.W.2d 483 (Mich. 2008) . . . . . . . . . . . . . . . . . . . . . 29, 41 Page Wexler v. White's Fine Furniture, 317 F.3d 574 (6th Cir. 2003) (en banc). . . . . . . . . . . . . . . . . . . . 21 Younger v. Harris, 401 U.S. 37 (1971). . . . . . . . . . . . . . . . . . . . . 47 STATUTES 28 U.S.C. § 451. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1338. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1343. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1345. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Civil Rights Act of 1991, 42 U.S.C. § 1981a. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-1(a). . . . . . . . . . . . . . . . . . . . . 23, 24, 25, 26 42 U.S.C. § 2000e-2(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 24 42 U.S.C. § 2000e-2(e)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . 24 42 U.S.C. § 2000e-5(f)(1) and (3). . . . . . . . . . . . . . . . . . . . . 1 Americans With Disabilities Act of 1990, 42 U.S.C. § 12111(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 42 U.S.C. § 12112(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 42 U.S.C. § 12113(c). . . . . . . . . . . . . . . . . . . . . . . . . . . 23 42 U.S.C. § 12117(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 23 42 U.S.C. § 12203. . . . . . . . . . . . . . . . . . . . . . . . 1, 22, 23, 27 RULES AND REGULATIONS Fed.R.App.P. 4(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2 Fed.R.App.P. 4(a)(4)(A)(iv). . . . . . . . . . . . . . . . . . . . . . . . 1, 2 Fed.R.App.P. 32(a)(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Fed.R.Civ.P. 12(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22 Fed.R.Civ.P. 12(b)(6). . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22, 28 Fed.R.Civ.P. 56(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21 Fed.R.Civ.P. 59(e). . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 18 4th Cir. Local Rule 32.1. . . . . . . . . . . . . . . . . . . . . . . . . . . 38 6 Cir. R. 28(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 6 Cir. R. 28(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 6 Cir. R. 30(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ADMINISTRATIVE GUIDANCE 29 C.F.R. Pt. 1630, App. § 1630.16(a). . . . . . . . . . . . . . . . . . . 26, 27 LEGISLATIVE HISTORY H.R. Rep. No. 485 part 2, 101st Cong., 2d Sess. (1990). . . . . . . . . 23, 24, 26 H.R. Rep. No. 485 part 3, 101st Cong., 2d Sess. (1990). . . . . . . . . . . . 23 S. Rep. No. 116, 101st Cong., 1st Sess. (1989) . . . . . . . . . . . . . . . . . 24 OTHER AUTHORITY Bruce N. Bagni, Discrimination in the Name of the Lord: A Critical Evaluation of Discrimination by Religious Organizations, 79 Columbia L. Rev. 1514 (1979) . . . . . . . . . . . . . . . . . . . . . 31, 32 Governing Manual for Lutheran Schools, http://old.dcs.lcms.org/school/brdmanual/default.htm (last visited Mar. 12, 2009) . . . . . . . . . . . . . . . . . . . . . . . .54-55 Lutheran Schools Information and Statistics, Statistics for the 2008-2009 School year, http://www.lcms.org/pages/internal.asp?NAVID=1739 (last visited Mar. 12, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . 44 Note, The Ministerial Exception to Title VII: The Case for a Deferential Primary Duties Test, 121 Harv. L. Rev. 1776 (2008) . . . . . . . . . . . . . . . . . . . . . . . . 41 Personnel Manual Prototype, Celebration Lutheran School Personnel Manual (June 2003), http://www.lcms.org/pages/internal.asp?NavID=2104 (last visited Mar. 12, 2009) . . . . . . . . . . . . . . . . . . . . . . . 53, 54 STATEMENT OF JURISDICTION This action was authorized and commenced pursuant to section 107(a) of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12117(a), which incorporates by reference sections 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f)(1) and (3), and pursuant to section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a. (Record Entry (RE) 1, complaint, at 1). The district court had jurisdiction pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343, and 1345. Judgment was entered October 23, 2008. (RE 51, judgment). Intervenor-Plaintiff Cheryl Perich timely sought reconsideration pursuant to Fed.R.Civ.P. 59(e), (RE 53, motion for reconsideration), which was denied on December 3, 2008. (RE 58, opinion and order). The Equal Employment Opportunity Commission (EEOC) and Perich timely filed notices of appeal on January 30, 2009. (RE 59, EEOC notice of appeal; RE 60, Perich notice of appeal). See Fed.R.App.P. 4(a)(1)(B), 4(a)(4)(A)(iv). This Court has jurisdiction pursuant to 28 U.S.C. § 1291.<1> STATEMENT OF THE ISSUE Whether the district court misapplied the ministerial exception to preclude this ADA retaliation suit on behalf of a parochial school teacher whose primary duties were secular. STATEMENT OF THE CASE The EEOC filed this ADA enforcement action against Hosanna-Tabor Evangelical Lutheran Church and School (Hosanna-Tabor) in the United States District Court for the Eastern District of Michigan on September 28, 2007. (RE 1). The complaint alleges that Hosanna-Tabor discharged Cheryl Perich in retaliation for opposing discrimination and asserting her federal statutory rights, in violation of the ADA, 42 U.S.C. § 12203. (RE 1 at 3¶3). On April 10, 2008, the district court granted Perich leave to intervene. (RE 14, order; RE 15, intervenor complaint). The court granted summary judgment and entered judgment for Hosanna-Tabor on October 23, 2008. (RE 50, opinion and order; RE 51). On November 6, 2008, Perich timely moved for reconsideration, pursuant to Fed.R.Civ.P. 59(e), (RE 53), which the court denied on December 3, 2008. (RE 58). The EEOC and Perich timely filed notices of appeal on January 30, 2009. (RE 59; RE 60). See Fed.R.App.P. 4(a)(1)(B), 4(a)(4)(A)(iv). STATEMENT OF FACTS Hosanna-Tabor, an ecclesiastical corporation affiliated with the Lutheran Church-Missouri Synod (LCMS), operates a church and school in Redford, Michigan. (RE 22-9, Hosanna-Tabor motion for summary judgment, Exhibit (Exh.) G, articles of incorporation). The school serves children in pre-school through the eighth grade. (RE 24-4, Perich motion for summary judgment, Exh. 2 at 3, Pranschke deposition (dep.) at 7). Teachers at Hosanna-Tabor (and other Lutheran schools) are classified as "contract" teachers or "called" teachers. (RE 50 at 2). Contract teachers are hired by the school board for one-year renewable terms of employment, whereas called teachers are usually hired "on an open ended basis" by the voting members of the church congregation, at the recommendation of its school board, board of directors, and board of elders, "and cannot be summarily dismissed without cause." (RE 50 at 2-3; RE 24-5, Exh. 3, Braun dep. at 16-17). Hosanna-Tabor employs staff, including teachers, who are not Lutheran, and requires all teachers - called or contract, Lutheran or not - to perform the same job duties. (RE 37, Perich affidavit, at 2-4 ¶¶6, 12-13, 17; RE 50 at 3-4). A teacher becomes eligible for employment as a called teacher by completing a course of study, called a "colloquy," at a Lutheran college and earning a "certificate of admission into the teaching ministry of the [LCMS]." (RE 22-10, Exh. H, 2/29/2000 colloquy letter; RE 50 at 2). The names and contact information of those teachers who complete this training are included in a roster published annually by the Missouri Synod. (RE 50 at 2; RE 22-10; RE 22-12, Exh. J, 2002 Lutheran annual roster). According to Bruce Braun, superintendent of Lutheran schools in the Michigan district of the LCMS,<2> "there's 18,000 teachers in Lutheran schools across the United States." (RE 24-5, Braun dep., at 3-6). Eligible teachers "all can fill out ... a Lutheran Education Information Form," specifying their experience, skills, and preferences (e.g., "I like teaching third grade, coaching volleyball and I can teach handbells."). (Id.). The form "is available online," Braun explained, and completed forms are maintained in "a big database," from which he compiles a list of potential candidates - a "call list" - for a Lutheran school with a teaching vacancy. (RE 24-5, Braun dep., at 6). There are several benefits to employment as a called teacher. Called teachers are often tenured, and their employment can be terminated - either involuntarily, by "rescinding a call," or voluntarily, through a "peaceful release" of the call - only with the approval of the congregation. (RE 24-4 at 5, 7, Pranschke dep. at 15-16, 23-24; RE 24-5, Braun dep., at 16-17). Called teachers also may be allowed to claim a "housing allowance" on their income taxes, reducing the amount of their taxable income. (RE 50 at 3; RE 24-4 at 7, Pranschke dep. at 24). Once hired, or "called," by a congregation, the teacher receives the title of "commissioned minister." (RE 50 at 3; RE 22-11, Exh. I, diploma of vocation). In July 1999, Hosanna-Tabor hired Cheryl Perich as a contract teacher to teach kindergarten for the 1999-2000 school year. (RE 22-13, Exh. K, teachers contract). Perich had previously worked as a pre-school teacher at two other Lutheran schools, from 1993 through 1997. (RE 22-15, Exh. M, Perich personnel information form). In February 2000, Perich completed her course of study at Concordia College and gained "admission into the teaching ministry of the [LCMS] by colloquy." (RE 22-10). The following month, Hosanna-Tabor issued a "Diploma of Vocation" that conferred on Perich the title "Minister of Religion, Commissioned," and notified her that the congregation had "elected [her] as Kindergarten Teacher." (RE 22-11). The terms and conditions of Perich's employment (e.g., salary, days off, medical coverage, disability insurance, pension, and other fringe benefits) were specified in a "Supplement to the Diploma of Vocation," (RE 22-14, Exh. L, supplement to diploma of vocation), presumably executed once her initial contract expired. (RE 22-13; RE 24-6, Exh. 4 at 2, Perich affidavit at 1,¶¶2-3). "After receiving her call, Perich's employment continued unchanged in form from her time as a contract teacher." (RE 50 at 3). Perich continued her employment as a kindergarten teacher at Hosanna- Tabor for the next three years (2000-2003), and taught fourth grade during the 2003-2004 school year. (RE 37 at 1-2 ¶¶3-4). While employed as "a contract teacher, and later as a called teacher, at Hosanna-Tabor," Perich's "primary duty was the instruction of students in secular subjects," which included "Math, Language Arts, Social Studies, Science, Gym, Art and Music." (RE 37 at 2 ¶8). During 2003-2004, Perich taught her fourth-grade class each of these subjects, plus computer training. (RE 37 at 2-3. ¶¶9-10). Perich taught all four "core classes, [i.e.,] Math, Language Arts, Social Studies and Science, five days per week," using secular textbooks assigned by Hosanna-Tabor. (Id.). Music instruction "included secular music theory and instruction in playing the recorder using the same music book as was used in the local public school." (RE 37 at 3 ¶10). Each school day at Hosanna-Tabor began at 8:00 a.m. and ended at 3:00 p.m. (RE 37 at 2 ¶8). In addition to the secular instruction that consumed "the vast majority" of the seven-hour day, (RE 37 at 3 ¶11), Perich engaged her students "in formal study of religion, devotionals, prayers and chapel services," for a total of "typically no more than about 45 minutes per day." (RE 37 at 4 ¶15). Formal instruction consisted of a religion class Perich taught "four days per week for a period of about 30 minutes per day," using the curriculum and materials provided by Hosanna-Tabor. (RE 37 at 3 ¶11). In 2002-2003, the fourth-grade teacher at Hosanna-Tabor, who "was not a Lutheran, had not received a Colloquy, and was not a called teacher," taught the same religion program to her students, using the same materials. (RE 37 at 3-4 ¶¶12, 17). Perich's fourth-grade class "also spent about five to ten minutes each morning reading or listening to a short religious devotional excerpt from a book or other media," and participated in short prayers "in the morning, before lunch and at the end of the school day," lasting "generally no more than a total of five to six minutes per day." (RE 37 at 4 ¶14). Perich "also attended chapel service" with her students once a week, and "led two to three chapel services" each school year. (RE 37 at 3-4 ¶13). Each chapel service lasted around 30 minutes, and seldom longer than a half hour. (Id.). Leading the service "involved choosing a liturgy from the All God's People Sing book and a Bible verse or verses to read, writing a short message based on the Bible verse(s), and deciding which songs would be sung at the service." (Id.). Every teacher at Hosanna-Tabor - whether called or contract, Lutheran or non-Lutheran - took turns leading chapel services. (Id.). While Perich valued the freedom a sectarian, non-public school afforded to "'bring God into every subject taught in the classroom,'" at Hosanna-Tabor she "was so busy teaching the secular class material each day that there was little time or opportunity to discuss religion within those subjects." (RE 37 at 6-7 ¶23). Perich could recall only four isolated "instances where the subject of God came up" while she was teaching secular classes to her fourth-grade students. (RE 37 at 7 ¶24). At the end of the 2003-2004 school year, Hosanna-Tabor assigned Perich to teach third and fourth grade the following year. (RE 37 at 2 ¶4). At a church golf outing in June 2004, Perich suddenly became "very ill" and "was hospitalized." (RE 24-6 at 2, Perich aff. at 1, ¶4). By August, Perich's doctors had not yet reached a definitive diagnosis. (RE 24-6 at 3, Perich aff. at 2, ¶5). Stacey Hoeft, who was then principal of Hosanna-Tabor, advised Perich to "apply for disability" leave, while assuring that she would "still have a job with us" when she regained her health. (RE 24-8, Exh. 6, 8/11/04 Hoeft email; RE 24-6 at 3, Perich aff. at 2, ¶5). Perich consequently applied for disability benefits through Hosanna-Tabor's insurance provider and began a "disability leave of absence at the beginning of the 2004-2005 school year." (RE 24-6 at 3, Perich aff. at 2, ¶5). While out on leave, Perich regularly provided Hoeft with updates about her medical condition and progress. (RE 50 at 4). On December 16, 2004, Perich informed Hoeft by email that a series of tests had confirmed a diagnosis of narcolepsy, and her neurologist estimated she would be able to return to work once her medications were adjusted, a process that "usually takes about two months." (RE 24-9, Exh. 7, 12/16/04 Perich email). In an email to Hoeft on January 18, 2005, Perich reported her doctor's encouraging assessment "that we're moving in the right direction" in "making medication adjustments," and she had another appointment scheduled for February 8. (RE 24-11, Exh. 9, 1/18/05 Perich email). The next day, Hoeft responded that she would soon "start asking teachers about their intentions for next year," and wanted Perich "to start thinking about what" she would "be able to do" and to "[d]iscuss it with [her] doctor." (RE 24-11, Exh. 9, 1/19/05 Hoeft email). As a postscript, Hoeft asked whether Perich would "ever ... be allowed to drive again," and revealed that she knew "nothing about narcolepsy." (Id.). Perich replied that she had described her "work day" and all her teaching responsibilities to her doctor, who had assured her that she would be "fully functional" and able to perform her job. (RE 24-11, Exh. 9, 1/19/05 Perich email). Perich also informed Hoeft that "there is no cure for narcolepsy," but that her condition "can be controlled" with medication, and offered to send Hoeft information about narcolepsy that her doctor had supplied. (Id.). On January 21, 2005, Hoeft thanked Perich "for all the info," and reiterated that she had "no knowledge whatsoever about [Perich's] condition." (RE 24-12, Exh. 10, 1/21/05 Hoeft email). In asking whether Perich planned to "com[e] back in the fall," Hoeft explained, "I know you want to come back, I just didn't know if you would be able to," adding, "Obviously we've found out this year how very different those two words are." (Id.) (emphases in original). Hoeft also informed Perich that Hosanna-Tabor was planning to amend its employee handbook to provide "that any employee who has a disability which extends past six months (therefore long term) will be encouraged to resign their Call so that the church and school will be able to fill the position responsibly," which could "even mean reinstating the Call once the employee was healthy again." (Id.). Hosanna-Tabor did not "want to have to take the Call away," Hoeft continued, and "it's better for everyone if the employee would resign themselves obviously." (Id.). Perich emailed Hoeft the following week to convey what she considered "More Good News" - an estimated date when she could return to work. (RE 24- 13, Exh. 11, 1/27/05 Perich email). Perich's doctor told her she would "probably be able to go back to work on Monday, February 14," or possibly a week or two later, depending on the need to adjust her medications. (Id.). Perich concluded that she would return to Hosanna-Tabor "between February 14 and February 28." (Id.). Later that day, Hoeft responded that she was "surprised to hear" Perich would "be able to return so soon," remarking that "just a few days ago" Perich had said she was "unable to complete [her] disability forms because of the illness." RE 24-14, Exh. 12, 1/27/05 Hoeft email). Hoeft asked "[h]ow often" Perich was "'passing out,'" and whether her doctor would "permit [her] to come back full time," adding, "I (and the board especially) am going to have so many questions for you!" (Id.). Notwithstanding the assurances Perich had recently conveyed from her neurologist that she would be "fully functional" at work once her medications were properly adjusted, (RE 24-11, Exh. 9, 1/19/05 Perich email), Hoeft expressed doubt about Perich's ability to return to the classroom: "I guess I wonder how you're not permitted to drive yet you can be responsible for the safety of a classroom of children. You can see why I'd be concerned." (RE 24-14, Exh. 12, 1/27/05 Hoeft email). Hoeft also informed Perich that once she was "able to return, it will not be to teach third and fourth grades," because Hoeft had "contracted [a substitute] to teach until June 15th and cannot take her job away." (Id.). Hoeft further explained that "those children have already had two teachers this year and having a third does not provide a good learning environment for them (not to mention a bad reputation for our school)." (Id.). Hoeft invited Perich to offer "any suggestions" she might have "about how we can include you back into our staff." (Id.). Just three days later, on January 30, 2005, Hosanna-Tabor held its annual congregational "shareholder" meeting. (RE 24-15, Exh. 13, 1/30/05 meeting minutes). At the meeting, the voting members of the congregation were informed that Hoeft and the school board "feels [sic] it is very unlikely Ms. Perich will be physically capable to return to the classroom this year or next year," and that it was "important to the school's operation that Ms. Perich ask for peaceful release from her call," i.e., voluntarily resign her tenured teaching position, "to facilitate the search for a replacement." (RE 24-15 at 7). Consequently, the congregation adopted the board's proposal to "offer to continue a portion of her medical premium payments through December 2005 once she has asked for a peaceful release from her call," by agreeing to resign voluntarily. (RE 24-15 at 3, 7). On February 8, 2005, Perich received from her doctor a written release to return to work on February 22, 2005, without restrictions. (RE 24-17, Exh. 15, return to work note). The next day, school board chair Scott Salo called Perich to arrange a meeting to discuss her employment. (RE 24-6 at 3, Perich aff. at 2, ¶7; RE 50 at 6). Perich asked to meet with the entire board, and a meeting was convened on February 13, 2005. (RE 24-6 at 3, Perich aff. at 2, 8). At the start of the meeting, Salo presented Perich with the proposal approved by the congregation at its January meeting, i.e., requesting Perich to resign voluntarily in exchange for continued partial payment of medical insurance premiums through December 2005. (RE 24-6 at 3, Perich aff. at 2, ¶8). In response, Perich produced her unrestricted medical release, and announced that she was "fully able to return to work as of February 22, 2005" and "had no interest whatsoever in resigning from [her] position." (RE 24-6 at 3, Perich aff. at 2 ¶8). During the meeting, Sheila Simpson, a school board member who claimed to have "a medical background," remarked that if she were the parent of "a child in this school, I'd want you to be without symptoms for 6 months, with no episodes for 6 months or maybe even a year before I'd want my child in your class." (RE 24-6 at 4, Perich aff. at 3, ¶9). Simpson "wanted to make sure" that Perich could return "as a normal teacher" and "was back to her normal healthy self" out of concern that "if anything happened to her" during class, her students "would be so scared and you don't want to scare children." (RE 24-18, Exh. 16, Simpson dep., at 8). Another board member advised Perich that he "wouldn't drive if I were you, not even if the doctor says you can." (RE 24-6 at 4, Perich aff. at 3, ¶9). Salo urged Perich to reconsider, and Jim Pranschke, president of Hosanna-Tabor's board of directors, asked that she email her decision by February 21. (RE 24-6 at 3, Perich aff. at 2, ¶8; RE 50 at 6). Shortly after 9 p.m. on February 21, Perich sent Hoeft an email confirming her decision not to resign. (RE 24-19, Exh. 17, 2/21/05 Perich email). In accord with her doctor's medical release, Perich told Hoeft, she planned to "return to work tomorrow, February 22, 2005." (Id.). The next morning, Perich arrived at the school to report for work. (RE 24-6 at 4, Perich aff. at 3, ¶11). The Hosanna- Tabor employee handbook states that an employee's "[f]ailure to return to work on the first workday following the expiration of an approved leave of absence may be considered a voluntary termination." (RE 24-20, Exh. 18, employee handbook, at 5). Because Perich had informed Hosanna-Tabor that her doctor had released her to return to work as of February 22, Perich was concerned that her failure to report on that day might be construed as a resignation. (RE 24-6 at 4-5, Perich aff. at 3-4, ¶12). Hoeft directed Perich to leave the school, and Perich complied once she obtained written confirmation that she had reported to work and was instructed to leave. (Id.). The letter, signed by Hoeft and school board chairman Salo, states: "Due to your improper notification to return to work, we are asking that you continue your leave" while "congregational leaders ... attempt to meet this evening to develop" a "plan for your possible return." (RE 24-21, Exh. 19, 2/22/05 letter from Hoeft and Salo). Later that day, on February 22, Hoeft called Perich at home. (RE 24-6 at 5, Perich aff. at 4, ¶13). During their conversation, Perich informed Hoeft that although she "had been trying to work out the issues with [Hoeft] and the Board," she had also "been talking to an attorney and intend[ed] to assert [her] legal rights." (Id.). According to Hoeft, Perich told her "that she would like to compromise," but that if she were not allowed to return to her job, "she would be filing a lawsuit for discrimination based on her disability." (RE 25-5, Hosanna- Tabor motion for partial summary judgment on intervenor complaint, Exh. R, Hoeft written statement, at 2). In an email to Hoeft that evening, Perich informed the school board that she had seen her doctor the previous day and he had confirmed that she was "healthy and ready to return to work." (RE 24-22, Exh. 20, 2/22/05 Perich email). Perich stated that she "would like to come back to work, full time," as she had been "promised," but that she was "willing to compromise" by returning "to work four days a week." (Id.). Following the school board's meeting on the evening of February 22, 2005, Salo sent Perich a letter reflecting the board's "unanimous consent" to take steps to terminate her employment, by "reviewing the process of rescinding [her] call." (RE 34-8, Perich response to motion for summary judgment, Exh. 7, 2/22/05 letter from Salo). The letter called Perich's "actions of 2/22/05 ... regrettable, to say the least," faulted Perich for "emailing Mrs. Hoeft at her work email at 9:03 pm on 2/21/05," and charged that her "intent was not to return to work, but rather to create upheaval at our school." (Id.). Noting that Perich "had already been informed at our meeting on 2/13/05 that there was no position for [her]," the letter continued, her "behavior demonstrates [her] total lack of concern for the ministry of Hosanna-Tabor Lutheran School." (Id.). Michigan district superintendent Bruce Braun testified that he received a copy of Salo's letter "after the fact," and it raised "a concern or two" because he would "want to make sure that Hosanna- Tabor [had] run it by an attorney ... who specializes in labor law, to know if they can do what they're saying they want to do." (RE 24-5, Braun dep., at 8-9). Braun further testified that when principal Hoeft called to inform him that the school was "really considering terminating" Perich, Braun responded that discharging "someone with a disability" was not his "area of expertise," and advised Hoeft "to get an attorney who deals with labor issues." (RE 24-5, Braun dep., at 7-8). On March 19, 2005, Salo informed Perich by letter that a congregational meeting was scheduled for April 10, 2005, at which the school board would recommend terminating her employment. (RE 24-3, Exh. 1, 3/19/05 letter from Salo). According to Salo's letter, the board was "taking this action with the approval of the Michigan District Office due to insubordination and disruptive behavior on Tuesday, February 22, 2005," and "because we feel that you have damaged, beyond repair, the working relationship you had with the Administration and School Board by threatening to take legal action against" the church and school. (Id.). As grounds for termination, Salo cited "[w]illful neglect of official duties without cause," and "[e]vident and protracted incapacity to perform the functions of the sacred office." (Id.). According to James Pranschke, then- president of Hosanna-Tabor's board of directors, "the main action" that prompted the decision to terminate Perich "was threatening to sue." (RE 24-4 at 16, Pranschke dep., at 90). The March 19 letter gave Perich until Friday, April 8, 2005, to inform the board that she would resign voluntarily, in which case the board "would be willing to consider reinstatement of [its] previous offer to cover [her] medical insurance" through the end of the year. (RE 24-3). If Perich agreed to resign, the letter continued, the Michigan district would "continue to promote [her] name in hopes to transition [her] to a new job with another Lutheran School," but would "not do so" if the board were required to terminate her involuntarily. (Id.). As with Salo's letter of February 22, Michigan district superintendent Braun did not review the March 19 letter before Hosanna-Tabor sent it to Perich. (RE 24-5, Braun dep., at 10-11). Once again, the letter prompted Braun to "wonder[] did Hosanna-Tabor run this by somebody who specializes in employment law who works with disabilities all the time." (RE 24-5, Braun dep., at 11-12).<3> At the congregational meeting on April 10, 2005, Perich thanked the congregation "for their thoughts, prayers and support throughout her disability." (RE 24-24, Exh. 22, 4/10/05 meeting minutes, at 2). According to the meeting minutes, "[h]er only statement was to inform" those in attendance "that it's against the law to ask someone to quit work when the doctor has cleared her to go back to work." (Id.). Salo "presented a summary of events regarding ... Perich's disability," and explained that the board was seeking approval to terminate her "not because of her disability, but because of her actions since February 22, 2005." (Id.). After a secret ballot, voting members of the congregation approved the board's recommendation by a vote of 40 to 11. (Id.). The next day, Salo informed Perich of her termination. (RE 24-25, Exh. 23, 4/11/05 letter from Salo). Perich filed a charge with the EEOC on May 17, 2005, alleging discrimination and retaliation in violation of the ADA. (RE 50 at 8). On September 28, 2007, the EEOC filed suit, in which Perich intervened on April 10, 2008. (Id.). Both the EEOC and Perich claimed unlawful retaliation under the ADA; Perich also claimed retaliation in violation of Michigan law. (Id.). DISTRICT COURT DECISION On cross-motions for summary judgment, the district court ruled in favor of Hosanna-Tabor. (RE 50 at 20). "Because Hosanna-Tabor considered Perich a 'commissioned minister' and," in the court's view, "the facts surrounding Perich's employment in a religious school with a sectarian mission support this characterization," the court decided "that Perich was a ministerial employee." (Id.). On that basis, the court held it could "inquire no further into her claims of retaliation," (id.), and entered judgment for Hosanna-Tabor. (RE 51). On December 3, 2008, the court denied Perich's timely motion for reconsideration under Fed.R.Civ.P. 59(e). (RE 58). SUMMARY OF ARGUMENT Congress made plain in the text and history of the ADA that the employees of religious entities are protected from discrimination because of disability, retaliation for opposing such discrimination, and intimidation, coercion, or interference with their enjoyment or exercise of statutory rights. The district court denied Cheryl Perich this protection under the "ministerial exception," a judicially crafted doctrine barring adjudication of statutory employment claims that infringe on the constitutional right of a religious entity to choose its spiritual leaders without government interference. Because the primary duties Perich performed as an elementary teacher at Hosanna-Tabor were secular and non-religious, she did not function as clergy and the district court erred as a matter of law in applying the ministerial exception to preclude this suit. Whether the employee of a religious institution can claim federal statutory protection from unlawful employment practices - or whether her claims are constitutionally barred by the ministerial exception - depends on the function of her position, as demonstrated through an objective examination of her "primary duties." Under this functional approach - adopted by this and every other federal Court of Appeals to have considered the issue - neither ordination, nor designation of an employee as a "minister," nor the subjective viewpoint of the religious employer or its employee of her job as a "ministry," determines whether the exception applies. Rather, the discrimination claims of an employee whose primary duties are religious, liturgical, spiritual, or sacerdotal are barred by the ministerial exception, while those of an employee whose primary duties are secular must be resolved on the merits. The undisputed evidence demonstrates that the primary duties of Perich and every other teacher at Hosanna-Tabor entailed instructing students in secular subjects, using non-religious texts. All teachers - whether lay/contract or called/ commissioned minister, Lutheran or non-Lutheran - performed the same mix of duties, which were primarily secular, with a small portion of each school day devoted to religious instruction and prayer. A long line of reported cases arising under the panoply of federal fair employment laws uniformly holds that the claims of parochial school teachers who served a function and performed duties similar to those described by Perich were not barred by the ministerial exception. The district court thus departed from overwhelming precedent and erred in holding that Perich was a "ministerial employee" outside the protection of the ADA and other federal fair employment laws. The EEOC therefore urges this Court to reverse the summary judgment and remand for adjudication on the merits. STANDARD OF REVIEW This Court "review[s] de novo a district court's grant of summary judgment, using the same Rule 56(c) standard as the district court." Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 657 (6th Cir. 2000). Fed.R.Civ.P. 56(c) provides for summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." In deciding Hosanna-Tabor's motion for summary judgment, the court was required to "view the evidence and draw all reasonable inferences in favor of" the EEOC and Perich, and determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that [Hosanna-Tabor] must prevail as a matter of law." Wexler v. White's Fine Furniture, 317 F.3d 564, 570 (6th Cir. 2003) (en banc) (internal citations omitted). This Court has held that "[t]he ministerial exception ... precludes subject matter jurisdiction over claims involving the employment relationship between a religious institution and its ministerial employees." Hollins v. Methodist Healthcare, Inc., 474 F.3d 223, 225 (6th Cir. 2007). The Court "review[s] de novo a district court's order of dismissal for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1)," but, "unlike Rule 12(b)(6) analysis, under which the existence of genuine issues of material fact warrants denial of the motion to dismiss, 'the [district] court is empowered to resolve factual disputes when subject matter jurisdiction is challenged.'" Id. (citation omitted). Because the facts relevant to the determination whether Perich is a "ministerial employee" are undisputed, and the district court therefore made no factual findings in resolving Hosanna-Tabor's motion under Rule 12(b)(6), the procedural differences between Rules 12(b)(1) and 12(b)(6) are immaterial in this case. Under either rule, the same de novo standard governs this Court's review. ARGUMENT THE DISTRICT COURT MISAPPLIED THE MINISTERIAL EXCEPTION TO PRECLUDE THIS ADA RETALIATION SUIT ON BEHALF OF A PAROCHIAL SCHOOL TEACHER WHOSE PRIMARY DUTIES WERE SECULAR. A. The ADA Clearly Manifests Congress's Intent To Protect The Employees Of Religious Entities From Discrimination Because Of Disability; Retaliation For Opposing Discrimination; And Interference, Coercion, Intimidation, Or Threats Directed At Those Who Seek To Exercise Statutory Rights. Title I of the ADA broadly prohibits an employer with 15 or more employees from discriminating, on the basis of disability, against a qualified individual with a disability in all terms and conditions of employment. See 42 U.S.C. § 12111(5), § 12112(a). Title V of the ADA protects individuals who oppose such discrimination from retaliation, and prohibits "interference, coercion, intimidation," or threats directed at those who seek to "exercise or enjoy[]" their statutory rights, as follows: (a) Retaliation. - No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted or participated in any manner in any investigation, proceeding, or hearing under this chapter. (b) Interference, coercion, or intimidation. - It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed ... any right granted or protected by this chapter. 42 U.S.C. § 12203. The ADA incorporates by reference the enforcement mechanisms and remedies provided in Title VII. See 42 U.S.C. §§ 12117(a), 12203(c). The ADA, like Title VII, protects the employees of religious entities, including churches and sectarian schools like Hosanna-Tabor, from unlawful discrimination and retaliation on the job. Title I of the ADA includes a "defense" which allows "[r]eligious entities" to give "preference in employment to individuals of a particular religion," and to "require that all applicants and employees conform to the religious tenets of such organization." 42 U.S.C. § 12113(c). The legislative history indicates that, with respect to religious employers, Congress intended that the ADA be interpreted and applied in the same manner as Title VII. See H.R. Rep. No. 485 part 3, 101st Cong., 2d Sess. 45 (1990) ("[Section 103(c)] is similar to provisions included in Section 702 of [Title VII, 42 U.S.C. § 2000e-1], and should be interpreted in a consistent manner."); H.R. Rep. No. 485 part 2, 101st Cong., 2d Sess. 75-76 (1990) (House Labor Report) ("Because title I of this legislation incorporates by reference the definition of the term 'employer' and 'employee' used in title VII ... and because of the similarity between the 'religious preference' provisions in title VII and the ADA, it is the Committee's intent that title I of the ADA be interpreted in a manner consistent with title VII ... as it applies to the employment relationship between a religious organization and those who minister on its behalf."); S. Rep. No. 116, 101st Cong., 1st Sess. 41 (1989) (same). Congress made plain in the text of Title VII that religious employers must comply with the prohibitions against discrimination based on race, color, sex, or national origin, see 42 U.S.C. § 2000e-2(a), by providing a narrow exemption for "a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on ... of its activities." 42 U.S.C. § 2000e-1(a). With respect to sectarian schools, in particular, Title VII further provides that "it shall not be an unlawful employment practice for a school ... to hire and employ employees of a particular religion if such school ... is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, ... or if the curriculum of such school ... is directed toward the propagation of a particular religion." 42 U.S.C. § 2000e- 2(e)(2). The courts have uniformly construed these provisions as a clear expression of congressional intent to require religious entities to refrain from unlawful employment discrimination, subject to a narrowly drawn statutory exemption for religious preference. See Cline, 206 F.3d at 658 ("[W]hile Title VII exempts religious organizations for 'discrimination based on religion,' it does not exempt them 'with respect to all discrimination.... [ ] Title VII still applies ... to a religious institution charged with sex discrimination.'") (citation omitted); see also, e.g., Petruska v. Gannon University, 462 F.3d 294, 303 (3d Cir. 2006) (Title VII "exempts religious entities and educational organizations from its nondiscrimination mandate to the extent that an employment decision is based on an individual's religious preferences" but, "[b]y its terms, ... does not confer upon religious organizations the right to make those same decisions on the basis of race, sex, or national origin.") (internal quotation marks and citations omitted); EEOC v. Fremont Christian School, 781 F.2d 1362, 1366 (9th Cir. 1986) ("Both the language and legislative history of Title VII ... indicate that the statute exempts religious institutions only to a narrow extent," by providing that religious employers "may base relevant hiring decisions upon religious preferences" but "are not immune from liability" for other forms of unlawful discrimination.) (internal quotation marks and citations omitted); Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164, 1166 (4th Cir. 1985) ("While the language of § 702 makes clear that religious institutions may base relevant hiring decisions upon religious preferences, Title VII does not confer upon religious organizations a license to make those same decisions on the basis of race, sex, or national origin."); EEOC v. Mississippi College, 626 F.2d 477, 484 (5th Cir. 1980) ("'The language and the legislative history of § 702 compel the conclusion that Congress did not intend that a religious organization be exempted from liability for discriminating against its employees on the basis of race, color, sex or national origin with respect to their compensation, terms, conditions or privileges of employment.'") (citation omitted). The legislative history of the ADA offers further guidance on the intended scope and application of the statutory defense available to religious entities, by providing an illustrative hypothetical example: Thus, assume that a Mormon organization wishes to hire only Mormons to perform certain jobs. If a person with a disability applies for the job, but is not a Mormon, the organization can refuse to hire him or her. However, if two Mormons apply for a job, one with a disability and one without a disability, the organization cannot discriminate against the applicant with the disability because of that person's disability. House Labor Report at 75. The EEOC has incorporated in regulatory guidance the interpretation specified in the legislative record: Religious organizations are not exempt from Title I of the ADA or [these regulations]. A religious [entity] may give a preference in employment to individuals of the particular religion, and may require that applicants and employees conform to the religious tenets of the organization. However, a religious organization may not discriminate against an individual who satisfies the permitted religious criteria because that individual is disabled. The religious entity, in other words, is required to consider qualified individuals with disabilities who satisfy the permitted religious criteria on an equal basis with qualified individuals without disabilities who similarly satisfy the religious criteria. 29 C.F.R. Pt. 1630, App. § 1630.16(a). In sum, the text, history, and regulatory interpretation of the ADA demonstrate that the defense specified in Title I insulates a religious entity from liability only for employment actions taken because of an individual's religion or adherence to religious tenets, and does not excuse discrimination because of disability. Notably, Title V of the ADA, which contains the prohibition against retaliation and coercion, 42 U.S.C. § 12203, contains no comparable exemption or defense for religious entities. B. The Ministerial Exception Is A Judicially Crafted Doctrine That Immunizes Religious Employers From The Statutory Discrimination Claims Of Employees Whose Primary Duties Are Religious Or Spiritual Rather Than Secular. Notwithstanding the clearly expressed congressional intent to require religious entities to refrain from unlawful employment discrimination (subject to a narrowly drawn statutory exemption allowing religious preference), the courts have fashioned a "ministerial exception" that insulates from judicial review those claims that infringe on the constitutional right of a religious entity to choose its spiritual leaders. "The ministerial exception, a doctrine rooted in the First Amendment's guarantees of religious freedom, precludes subject matter jurisdiction over claims involving the employment relationship between a religious institution and its ministerial employees, based on the institution's constitutional right to be free from judicial interference in the selection of those employees." Hollins, 474 F.3d at 225.<4> The Third Circuit explained the constitutional rationale for the ministerial exception as follows: The Free Exercise Clause protects not only the individual's right to believe and profess whatever religious doctrine one desires, ... but also a religious institution's right to decide matters of faith, doctrine, and church governance. ... [L]ike an individual, a church in its collective capacity must be free to express religious beliefs, profess matters of faith, and communicate its religious message. ... A minister is not merely an employee of the church; she is the embodiment of its message. A minister serves as the church's public representative, its ambassador, and its voice to the faithful. Accordingly, the process of selecting a minister is per se a religious exercise. ... Consequently, any restriction on the church's right to choose who will carry its spiritual message necessarily infringes upon its free exercise right to profess its beliefs. Petruska, 462 F.3d at 302 (internal quotation marks, citations, and footnotes omitted). The ministerial exception was first adopted by the Fifth Circuit over 35 years ago, as a means of construing Title VII to evade the "serious" constitutional question raised by applying the statutory prohibition against sex discrimination to "the employment relationship existing between ... a church and its minister." McClure v. Salvation Army, 460 F.2d 553, 558 (5th Cir. 1972). In order to avoid "an encroachment by the State into an area of religious freedom which it is forbidden to enter by the principles of the First Amendment," the Court decided "that Congress did not intend, through the nonspecific wording of the applicable provisions of Title VII, to regulate the employment relationship between church and minister." Id. at 560-61. Other courts have "determined that, under its plain language, Title VII applies to ministerial employment decisions," and adopted the exception upon "conclud[ing] that such an application is unconstitutional."<5> Petruska, 462 F.3d at 303 n.4 (citing Rayburn, 772 F.2d at 1165-67); see also Weishuhn v. Catholic Diocese of Lansing, 756 N.W.2d 483, 486 (Mich. 2008) ("The ministerial exception is a nonstatutory, constitutionally compelled exception to the application of employment-discrimination and civil rights statutes to religious institutions and their 'ministerial' employees."). The ministerial exception has since been widely recognized, see Petruska, 462 F.3d at 303-04 ("Every one of our sister circuits to consider the issue has concluded that application of Title VII to a minister-church relationship would violate - or would risk violating - the First Amendment and, accordingly, has recognized some version of the ministerial exception.") (footnote omitted) & n.5 (citing cases), and applied by this Court and others to preclude claims arising under a variety of federal fair employment laws. See, e.g., Hollins, 474 F.3d at 224-25 (citing cases, and applying exception to bar ADA claim of resident/chaplain in clinical pastoral program of Methodist Hospital); Schleicher, 518 F.3d 472 (ministers' FLSA claims against Salvation Army); Minker v. Baltimore Annual Conference of the United Methodist Church, 894 F.2d 1354, 1358 (D.C. Cir. 1990) (minister's ADEA claim against church). The exception, where applicable, is generally held to foreclose "any inquiry into a religious organization's underlying motivation for the contested employment decision." Petruska, 462 F.3d at 304 (footnote omitted). While the exception originated in the case of an ordained minister, its application "does not depend upon ordination but upon the function of the position" held by the employee seeking to assert a claim. Rayburn, 772 F.2d at 1168. This Court has explained that "courts have considered a particular employee to be a 'minister' for purposes of the ministerial exception based on the function of the plaintiff's employment position rather than the fact of ordination." Hollins, 474 F.3d at 226 (emphasis added). To determine whether a claimant functions as a "ministerial employee," courts have widely adopted an approach that focuses on whether the "primary duties" of her position are religious or secular in nature: "As a general rule, if the employee's primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship, he or she should be considered 'clergy.'" Rayburn, 772 F.2d at 1169 (quoting Bruce N. Bagni, Discrimination in the Name of the Lord: A Critical Evaluation of Discrimination by Religious Organizations, 79 Columbia L. Rev. 1514, 1545 (1979)). This Court has recently endorsed this functional approach to determine whether the employee of a religious entity can assert a claim of disability discrimination arising under the ADA. See Hollins, 474 F.3d at 226 (quoting Rayburn and Bagni, and citing cases). Professor Bagni formulated the "primary duties" test as part of an analytic framework "for resolving the conflict between religious liberty and the quest for human equality" that can arise when the government imposes on religious institutions generally applicable prohibitions against various forms of discrimination. See Bagni, 79 Columbia L. Rev. at 1539. In confronting "the difficult question of how 'clergy' should be defined for purposes of first amendment analysis," Bagni devised an objective, functional approach that has since been embraced in the federal courts. See id. at 1545. Under Bagni's test, "a teacher of theology in a private religious school can be characterized as 'clergy,' assuming that the course objective is to inculcate particular values rather than to survey religious doctrine objectively and comparatively ... [b]ut satisfaction of the test is more difficult when the teacher teaches purely secular subjects with a religious orientation." Id. As conceived by Professor Bagni and applied by the courts, the primary duties analysis requires an objective assessment of an employee's actual role and responsibilities, notwithstanding her subjective view of her job as her "personal ministry," see Dole v. Shenandoah Baptist Church, 899 F.2d 1389, 1396 (4th Cir. 1990), or her employer's belief that "all of its employees serve a ministerial function." EEOC v. Southwestern Baptist Theological Seminary, 651 F.2d 277, 283 (5th Cir. 1981). The ministerial exception thus enables courts to resolve "a collision between two interests of the highest order: the Government's interest in eradicating discrimination in employment and the constitutional right of a church to manage its own affairs free from government interference." EEOC v. Catholic University of America, 83 F.3d 455, 460 (D.C. Cir. 1996). Where applicable, the exception functions as "judicial short-hand for two conclusions: the first is that the imposition of secular standards on a church's employment of its ministers will burden the free exercise of religion; the second, that the state's interest in eliminating employment discrimination is outweighed by a church's constitutional right of autonomy in its own domain." Id. at 467; see also Redhead v. Conference of Seventh-Day Adventists, 440 F.Supp.2d 211, 220 (E.D.N.Y. 2006) (ministerial exception "is a judicially created doctrine" used to determine "whether a religious organization's hiring decisions regarding a particular individual should be insulated based on First Amendment concerns," and "strikes a proper balance between the important aims of Title VII in eliminating discrimination, on the one hand, and safeguarding 'matters of church government as well as those of faith and doctrine' ... on the other hand") (citation omitted). C. The District Court Misapplied The Ministerial Exception To Preclude This Suit Because The Primary Duties Perich Performed As An Elementary School Teacher Were Secular Rather Than Religious. Cheryl Perich's uncontested description of her experience as an elementary school teacher at Hosanna-Tabor demonstrates that her duties were primarily secular, and "did not include serving in a pastoral role to the congregation." (RE 37 at 2-4 ¶5). She spent the "vast majority" of every day teaching secular subjects from non-religious texts assigned by Hosanna-Tabor - in some instances using the same books used in public schools. (RE 37 at 2-3 ¶¶ 9-11). Of the seven hours she spent with her students each day, only a total of 45 minutes was devoted to a half- hour class on religion, a short morning devotional, and brief daily prayers. (RE 37 at 3-4 ¶¶11-15). Only on rare occasions did she have the opportunity to discuss briefly religious matters during secular instruction. (RE 37 at 6-7 ¶¶23-24). After Perich completed the colloquy classes that earned her admission into the "teaching ministry" of the LCMS, (RE 22-10), and the designation of "commissioned minister" by Hosanna-Tabor, (RE 22-11), it is undisputed that her job duties remained unchanged from those she and others performed as lay contract teachers. (RE 37 at 2-4 ¶¶7, 12-13, 17). Perich taught her fourth-graders the same religion class, using the same assigned materials, as did her immediate predecessor - who was neither a commissioned minister nor Lutheran. (RE 37 at 4 ¶¶17). Similarly, like every teacher at the school, whether called, contract, or non- Lutheran, Perich accompanied her students to a 30-minute weekly chapel service, and led the service two or three times each year. (RE 37 at 3-4 ¶13). In a long line of cases arising under the panoply of federal fair employment laws, courts have uniformly held the claims of parochial school teachers of secular subjects, who served a function and performed duties similar to those described by Perich, were not barred by the ministerial exception, despite having some religious duties. See, e.g., Geary v. Visitation of the Blessed Virgin Mary Parish School, 7 F.3d 324, 331 (3d Cir. 1993) (ministerial exception did not bar ADEA discrimination and retaliation claims of lay teacher at Catholic elementary school "notwithstanding [her] apparent general employment obligation to be a visible witness to the Catholic Church's philosophy and principles"); DeMarco v. Holy Cross High School, 4 F.3d 166, 172-73 (2d Cir. 1993) (ADEA claim of Catholic high school math teacher, whose religious duties included leading class in prayers and attending Mass, was not barred by ministerial exception); Shenandoah Baptist, 899 F.2d at 1392, 1396-97 (Equal Pay Act claims of teachers at k-12 school "with a full-time curriculum that included instruction in Bible study and in traditional academic subjects into which biblical material had been integrated" were not precluded by ministerial exception); Fremont Christian School, 781 F.2d at 1364, 1369-70 (ministerial exception did not bar Title VII and EPA claims of teachers at pre-k-12 Christian school, where school was "an integral part of the religious mission of the Church to its children" and teachers occupied a "highly specialized role" the church considered "a ministry"); Mississippi College, 626 F.2d at 485-86 (faculty and staff at Baptist college, while "expected to serve as exemplars of practicing Christians," did "not function as ministers" because they were "not intermediaries between a church and its congregation" and "neither attend[ed] to the religious needs of the faithful nor instruct[ed] students in the whole of religious doctrine"); Redhead, 440 F.Supp.2d at 220-21 (ministerial exception did not apply to bar pregnancy discrimination claim of employee whose "teaching duties were primarily secular; those religious in nature were limited to only one hour of Bible instruction per day and attending religious ceremonies with students only once per year"); Guinan v. Roman Catholic Archdiocese of Indianapolis, 42 F.Supp.2d 849, 852-53 (S.D. Ind. 1998) (ministerial exception did not bar ADEA claims of fifth grade teacher at Catholic school, who taught secular subjects and religion classes, was a "Catechist" specially qualified to teach Christianity, and "perceived one of her principal duties to be 'an example of Christianity' and an 'evangelist' to her students," because "[t]he vast majority of [her] duties involved her teaching secular courses"). By contrast, the primary duties of those teachers whose discrimination claims against religious schools the courts held were precluded by the ministerial exception were overwhelmingly and unambiguously religious. See, e.g., Catholic University, 83 F.3d at 463-65 (ministerial exception barred Title VII claims of nun who taught Canonical law at Catholic University, was "entrusted with instructing students in the 'fundamental body of ecclesiastical laws' that governs the Church's sacramental life, defines the rights and duties of its faithful and the responsibilities of their pastors, and guides its administration," and performed a role "vital to the spiritual and pastoral mission of the Catholic Church"); Southwestern Baptist, 651 F.2d at 283-84 (ministerial exception applied to seminary faculty who served as "intermediaries between the [Baptist] convention and the future ministers of many local Baptist churches," "instruct[ed] the seminarians in the 'whole of religious doctrine,' and [taught] only religiously oriented courses"). In reviewing the evidence of Perich's duties as a teacher at Hosanna-Tabor, the district court acknowledged that "activities devoted to religion consumed only about forty-five minutes of the seven-hour school day"; "secular school subjects were taught with textbooks commonly used in public education"; she very seldom "introduced the topic of religion during otherwise secular discussion"; her "employment continued unchanged in form" after she completed her colloquy and was designated a commissioned minister; and "Hosanna-Tabor does not require that teachers leading chapel or teaching religion be 'called' or even Lutheran." (RE 50 at 3-4). The court further acknowledged some of the precedent in which courts "consider[ed] the employment status of teachers in religious schools" and held that "the ministerial exception does not apply" to "those teachers" who, like Perich, "primarily teach secular subjects," yet have some religious duties. (RE 50 at 12-14) (discussing Redhead, Guinan, DeMarco, and Geary). Notwithstanding the virtual unanimity of reported decisions declining to apply the ministerial exception to parochial school teachers who, like Perich, primarily teach secular subjects, the district court perceived a "lack of clarity in federal court cases regarding elementary school teachers." (RE 50 at 19). In concluding that Perich "must be considered a ministerial employee," (RE 50 at 18), the court relied heavily on a single unreported per curiam opinion of the Fourth Circuit that stands "[i]n sharp contrast" to the majority view. (RE 50 at 14-16) (discussing Clapper v. Chesapeake Conference of Seventh-Day Adventists, 1998 WL 904528 (4th Cir. 1998)). The facts recited in Clapper, however, suggest that the duties of the plaintiff and other teachers at the parochial school in that case may have been more pervasively religious than those of Perich and her colleagues at Hosanna-Tabor: [O]n a daily basis for at least 180-days per year, these teachers formally instruct their students in the teachings of the Bible as understood by the Seventh-day Adventist Church, teach the traditional academic curriculum, which incorporates the teachings of the Seventh-day Adventist Church whenever possible, lead their students in prayer at various times during the day, lead their students in worship at the beginning of the day for about ten minutes, and lead their students in witnessing activities .... Clapper, 1998 WL 904528 *7. More importantly, the court in Clapper emphasized the nonprecedential nature of its decision,<6> concluding: "We caution ... that the primary duties test is a very fact specific test, and therefore, our holding today is limited to the facts before us." Clapper, 1998 WL 904528 *8. Finally, and most significantly, the Fourth Circuit's earlier published precedent in Dole v. Shenandoah Baptist Church, 899 F.2d 1389 (4th Cir. 1990), undermines what little persuasive value Clapper might have. The court in Shenandoah Baptist refused to apply the ministerial exception to bar the equal pay claims of parochial school teachers who "consider[ed] teaching to be their personal ministry," taught "all classes ... from a pervasively religious perspective, ... [led] students in prayer and [were] required to subscribe to the Shenandoah statement of faith as a condition of employment." Id. at 1396. In rejecting the Church's "characterization of [its] teachers as ministers," the Fourth Circuit noted that they "perform no sacerdotal functions; neither do they serve as church governors," and "[t]hey belong to no clearly delineated religious order." Id. "The exemption of these teachers" from the FLSA, the court observed, "would create an exception capable of swallowing up the rule." Id. at 1397. In addition to placing undue reliance on Clapper, the district court in this case improperly deferred to Hosanna-Tabor's designation of Perich as a "commissioned minister," while purporting to conduct "an analysis of the primary duties test." (RE 50 at 11 n.2) ("It is this Court's opinion ... that Hosanna-Tabor is entitled deference in its decision to treat Perich as a minister ...."). The governing analysis, however, dictates that an employee's actual job function, ascertained through an objective examination of her primary duties - and not her title or designation as a "minister" - determines whether the ministerial exception precludes her claims. "While religious organizations may designate persons as ministers for their religious purposes free from any governmental interference, bestowal of such a designation does not control their extra-religious legal status." Southwestern Baptist, 651 F.2d at 283; see also Shenandoah Baptist, 899 F.2d at 1396 n.13 (same); cf. Dickinson v. United States, 346 U.S. 389, 156 (1953) ("Certainly all members of a religious organization or sect are not entitled to the [ministerial] exemption [from military service] by reason of their membership, even though in their belief each is a minister."). Applying this principle, the Fifth Circuit held that support staff "who perform[ed] a variety of non-academic functions" at a Baptist seminary were not ministerial employees, although at least "four of the full-time workers ha[d] been ordained in the Baptist denomination," and "[b]y their own testimony, their calling [was] service in the maintenance department." Southwestern Baptist, 651 F.2d at 284. The court likewise ruled that "those administrators whose function relates exclusively to the Seminary's finance, maintenance, and other non-academic departments, though considered ministers by the Seminary, are not ministers" for purposes of the ministerial exception. Id. at 285 (emphasis added). Rather than examine the undisputed evidence of the primarily secular job duties Perich performed to decide whether she functioned in a ministerial capacity, the district court instead relied on her title and Hosanna-Tabor's unsurprising view that its teachers are vital to the school's sectarian mission. (RE 50 at 20) ("Because Hosanna-Tabor considered Perich a 'commissioned minister' and the facts surrounding Perich's employment in a religious school with a sectarian mission support this characterization, the Court concludes that Perich was a ministerial employee.").<7> The fact that Perich worked "in a religious school with a sectarian mission," (id.), however, is relevant to Hosanna-Tabor's uncontested status as a religious institution - only the first of two elements necessary for the ministerial exception to apply. See Hollins, 474 F.3d at 225 ("In order for the ministerial exception to bar an employment discrimination claim the employer must be a religious institution and the employee must have been a ministerial employee.") (emphasis added). The Michigan Court of Appeals recently explained this Court's two-pronged approach: As the ... Sixth Circuit has succinctly stated, the ministerial exception applies when (1) the employer is a religious institution, and (2) the employee is a ministerial employee. When the employer's mission is marked by clear or obvious religious characteristics, this satisfies the first prong. ... Under the second prong, the scope of the ministerial exception depends on the individual's position. Weishuhn, 756 N.W.2d at 489-90 (footnotes, internal quotation marks, and citations omitted). Were a demonstration of an employer's "sectarian mission" sufficient to demonstrate the second element - the employee's ministerial function - the entire primary duties analysis would be superfluous and the ministerial exception would effectively "swallow[] up the rule" against employment discrimination by religious entities. See Shenandoah Baptist, 899 F.2d at 1397. In the district court's view, churches "should not [be] hinder[ed] ... from valuing teachers as important spiritual leaders and deciding who will fill those positions as ministerial employees, subject, of course, to inappropriate uses of the title 'minister' as subterfuge."<8> (RE 50 at 19). Yet there is nothing in the ADA, Title VII, or the other federal fair employment statutes that in any way impedes a religious school from valuing the critical contribution of its teachers to the spiritual growth of their students, or from designating them "ministers" for religious purposes. See Southwestern Baptist, 651 F.2d at 283 ("religious organizations may designate persons as ministers for their religious purposes free from any governmental interference"); Shenandoah Baptist, 899 F.2d at 1396 n.13 (same). An employee whose primary duties are secular, however, is entitled to claim statutory protection from unlawful employment practices, regardless of whether her religious employer sincerely views her work as a "ministry" or has engaged in a "subterfuge" to evade statutory coverage. Every parochial school, by definition, has a core religious dimension, and presumably considers its faculty essential to its spiritual mission. Yet, despite the unchallenged and undoubtedly sincere assertions of religious schools and churches that teachers play an integral role in achieving their sectarian purposes, courts have uniformly declined to hold that teachers with primarily secular duties are "ministerial employees." See, e.g., Geary, 7 F.3d at 331 (exception did not apply, although school maintained that "'[t]he unique and important role of the elementary school teacher in the Catholic education system mandates [a] commitment to the philosophy and principles of the Catholic Church'" and required teacher "to be a visible witness to the Catholic Church's philosophy and principles"); Fremont Christian School, 781 F.2d at 1369 (exception did not apply, although school was an "integral part of the religious mission of the Church to its children," in which teachers assumed a "highly specialized role ... claim[ed] to be a ministry"); Mississippi College, 626 F.2d at 479 (exception did not apply to faculty, although Baptist Convention viewed "education as an integral part of its Christian mission" and operated college "to fulfill that mission by providing educational enrichment in a Christian atmosphere" and "to assure that faculty and administrative officers are committed to the principle that 'the best preparation for life is a program of cultural and human studies permeated by the Christian ideal, as evidenced by the tenets, practices and customs of the ... Convention and in keeping with the principles and scriptures of the Bible"); Shenandoah Baptist, 899 F.2d at 1391-92, 1396-97 (exception did not apply, although church viewed "Christian education as a vital part of its mission" and teachers "consider[ed] teaching to be their personal ministry" and pledged "to subscribe to the [church's] statement of faith as a condition of employment"); Guinan, 42 F.Supp.2d at 850 (exception did not apply, even though "a primary objective of the Archdiocese and [church] was and is the religious education and spiritual development of its students" and teacher "perceived one of her principle duties to be 'an example of Christianity' and an 'evangelist' to her students"). The implications of the district court's ruling are significant. According to Michigan District superintendent Braun, "there's 18,000 teachers [employed] in Lutheran schools across the United States."<9> (RE 24-5, Braun dep., at 6). Under a proper application of the primary duties analysis, whether any of these teachers is a "ministerial employee" depends on whether her duties are primarily secular or religious - not on whether she completed colloquy courses at a Lutheran college or was designated a "commissioned minister" by a church congregation. Given the undisputed evidence that all teachers at Hosanna-Tabor were assigned the same duties, the determination that Perich is a "ministerial employee" would compel the conclusion that every teacher at the school - called, contract, Lutheran, and non- Lutheran - is similarly excluded from coverage under the federal fair employment laws. In other words, if Perich is a "ministerial employee," so is every other parochial school teacher who performs a similar mix of primarily secular duties, along with some religious tasks. In short, the district court's ruling would leave a significant number of parochial school teachers without protection from discrimination or retaliation prohibited by the ADA, Title VII, the ADEA, and the EPA, contrary to clearly expressed congressional intent. Finally, the district court erred in taking into consideration Hosanna-Tabor's assertion of a doctrinal basis for firing Perich to support its application of the ministerial exception. (RE 50 at 17-18) (referencing Hosanna-Tabor's asserted "defense ... that Perich's threats to pursue legal action were inconsistent with the [LCMS's] belief that Christians should not sue Christians in secular courts"). In support of summary judgment, Hosanna-Tabor maintained "that its employment decision was an ecclesiastical decision," (RE 22 at 26, Hosanna-Tabor summary judgment brief at 17), citing "the church and synod's genuinely held religious beliefs, including its [sic] prohibition against fellow Christians and especially ministers suing each other in secular courts." (RE 22 at 28, brief at 19). Hosanna- Tabor referenced a passage from The Holy Bible, (RE 22 at 28 n.9, brief at 19 n.9), and quoted from "the preamble of the Dispute Resolution of the Synod ... which provides, in part: 'While Christians are encouraged to seek to resolve all their disputes without resorting to secular courts, this chapter does not provide an exclusive remedy for [property or contractual disputes], unless such matters involve theological, doctrinal, or ecclesiastical issues, including those arising under the divine call of a member of the Synod.'" (RE 22 at 28, brief at 19) (emphasis omitted). Courts are unanimous in holding that the asserted reason for a challenged employment decision is immaterial to the determination whether an employee occupies a ministerial role that precludes judicial review of her discrimination claims. "The focus under the ministerial exception is on the action taken, not possible motives." Catholic University, 83 F.3d at 465-666; see also Petruska, 462 F.3d at 304 & n.7 ("the exception bars any inquiry into a religious organization's underlying motivation for the contested employment decision," citing cases); Rayburn, 772 F.2d at 1169 (in deciding whether ministerial exception applies, court's "emphasis [is] on the role" of the employee "rather than the reasons" asserted for the challenged action). Thus, if Perich is a ministerial employee, Hosanna-Tabor's decision to terminate her is insulated from review, regardless of whether its decision has a doctrinal basis. By the same token, a religious employer cannot summarily extinguish a claim of discrimination against a non-ministerial employee simply by asserting a doctrinal explanation for a challenged employment action. As the Supreme Court has recognized, "[e]ven religious schools cannot claim to be wholly free from some [government] regulation," and an administrative or judicial tribunal "violates no constitutional rights by merely investigating the circumstances of [a teacher's] discharge ..., if only to ascertain whether the ascribed religious-based reason was in fact the reason for the discharge." Ohio Civil Rights Commission v. Dayton Christian Schools, 477 U.S. 619, 628 (1986) (reversing, on grounds of Younger v. Harris, 401 U.S. 37 (1971), abstention doctrine, Sixth Circuit's ruling that Ohio Civil Rights Commission violated First Amendment rights of Christian school by exercising jurisdiction over discrimination and retaliation claims of pregnant teacher fired for hiring an attorney who threatened litigation under state and federal laws prohibiting sex discrimination). Because Perich did not occupy a ministerial role, in that she performed primarily secular duties as a schoolteacher, the court must adjudicate the merits of the EEOC's claim that Hosanna-Tabor discharged her in violation of the ADA, applying well established legal principles governing discrimination claims, just as it would if she were a secretary or custodian. See, e.g., Cline, 206 F.3d at 668 ("the same McDonnell Douglas analysis" that governs Title VII discrimination claims applies "when analyzing discrimination claims brought under the Ohio Civil Rights Act," and "[t]his is no different for discrimination claims brought against sectarian schools"). In Cline, for example, this Court reversed summary judgment against a Catholic school teacher whose employment was terminated after she became pregnant. Id. at 656-57. Plaintiff Leigh "Cline's position as a second-grade teacher involved significant training and ministry in the Catholic faith," and "required her to build and live Christian community, integrate learning and faith, and instill a sense of mission in her students." Id. at 655 (internal quotation marks omitted). Cline "provided daily religious instruction to students, took students to Mass on a regular basis, and prepared her second-grade students for the sacraments of Reconciliation and Holy Communion." Id. Cline's employment contract, "titled the 'Teacher-Minister Contract,'" incorporated "Affirmations for Employment in the Diocese of Toledo," which "outline[d] the ministerial responsibilities of the 'teacher/minister,'" and "the Teacher Handbook, which states that the mission of the school is to 'instill in our children the Gospel message of Jesus Christ.'" Id. at 655-56. When Cline "became visibly pregnant" shortly after she married her fiancée, Father William ("responsible for all religious matters within the parish, including oversight of the parish schools," id. at 655) "correctly concluded that she had engaged in premarital sex," and decided not to renew her contract for the following year. Id. at 656. Cline claimed discrimination because of sex and pregnancy, in violation of Title VII, id. at 657, while the church countered "that it did not renew Cline's contract because she violated its premarital sex policy, which constituted part of the broader ministerial requirements of being a St. Paul teacher." Id. at 660. The Court identified as "the 'ultimate question'" to be resolved "whether St. Paul's premarital sex policy was applied in a discriminatory way, or whether it was the true reason the school terminated Cline."<10> Id. at 666. Upon finding "vigorous factual disputes" over "whether the school applied its standards in a discriminatory manner, and whether the school's policy was based on pregnancy or premarital sex," this Court reversed summary judgment against Cline and remanded for trial on the merits. Id. at 668. The Court in Cline did not discuss the ministerial exception, but the opinion does cite Rayburn, a seminal decision in which the Fourth Circuit was the first appellate court to endorse the primary duties test to determine whether an employee who was not ordained nonetheless functioned in a ministerial capacity, so as to preclude his discrimination claims. See Cline, 206 F.3d at 658 (quoting Rayburn). If, as this Court ruled in Hollins, 474 F.3d at 225, "[t]he ministerial exception ... precludes subject matter jurisdiction over the claims involving the employment relationship between a religious institution and its ministerial employees," the Court's assumption of jurisdiction and consideration of the merits in Cline could be considered an implicit holding that the elementary teacher in that case was not a ministerial employee. Cf. Id. at 227 (McKeague, concurring) ("writ[ing] separately to point out that there is an open question whether a religious organization can waive the ministerial exception"). Given that Cline signed a "Teacher/Minister Contract" and was tasked with "ministerial duties" far more extensive than the minimal religious duties assigned to Perich, see Cline, 206 F.3d at 655-56, the district court's holding that it lacked subject matter jurisdiction because Perich was a ministerial employee of Hosanna-Tabor, (RE 58 at 2-3), cannot be sustained. As in Cline, there is substantial evidence that the doctrinal explanation asserted by Hosanna-Tabor did not in fact motivate its decision to fire Perich. Undisputed evidence shows that, contrary to the opinion of Perich's neurologist that she would be "fully functional" and able to work once her medications were adjusted, Hoeft and the school board informed the congregation that Perich was unlikely to recover sufficiently to return to work during the current or following school year. Board members expressed fears that she would pass out in class and frighten the children, and sought her resignation. Perich resisted their efforts to force her to resign, provided a medical release to return to work without restrictions, and reported to work to ensure she would not be deemed to have abandoned her job. In response, Salo and Hoeft directed her to leave the premises, accused her of "improper notification to return to work," and informed her that the board would meet to develop a plan for her possible return. (RE 24-21). After Perich told Hoeft that she had contacted an attorney and planned to pursue her legal rights against disability discrimination, however, the board decided to initiate the termination process. (RE 34-8). The board subsequently informed Perich that the termination decision was "due to insubordination and disruptive behavior on Tuesday, February 22, 2005," the day she reported to work and told Hoeft she had consulted a lawyer, and "because we feel that you have damaged, beyond repair, the working relationship you had with the Administration and School Board by threatening to take legal action against Hosanna-Tabor." (RE 24-3). None of the contemporaneous materials documenting every phase of the termination process references church doctrine or the LCMS synodical dispute resolution procedure. Neither Salo's letter of February 22, 2005, informing Perich that the school board planned to initiate the termination process, (RE 34-8); nor the letter of March 19, 2005, notifying her that the board would seek approval to fire her at a congregational meeting in April, (RE 24-3); nor notes prepared to present the termination proposal to the congregation, (RE 24-24 at 3-4); nor the minutes of the congregational meeting approving Perich's termination, (RE 24-24 at 2); mention the doctrine Hosanna-Tabor now asserts as the basis for its decision. Nor is there any indication that Hoeft, Salo, or anyone else ever informed Perich that she could (let alone was required to) challenge the board's actions through an internal synodical tribunal to resolve doctrinal disputes. Perich testified, without contradiction, that she was unaware of the LCMS "resolution policy until 2008." (RE 37 at 8 ¶26). It was only during the course of this litigation, years after Perich was fired, that Hoeft first cited the dispute resolution process during her deposition in June 2008, (RE 24-7 at 14, Hoeft dep. at 56-57), and defense counsel relied on it in support of Hosanna-Tabor's motion for summary judgment. (RE 22 at 28, brief at 19). The record thus provides compelling contemporaneous evidence that Hosanna-Tabor decided to fire Perich because she opposed the school board's efforts to force her to resign, based on medically unsupported fears about her health, and because she consulted legal counsel to protect and exercise her statutory rights under the ADA. The purported doctrinal basis for the decision, by contrast, is supported only by Hoeft's post hoc testimony provided incident to litigation and counsel's otherwise unsupported assertions in Hosanna-Tabor's summary judgment brief. Further, the substance of the doctrine, as articulated by Hoeft and Hosanna- Tabor's counsel, is not consistent with publications of the LCMS, which clearly contemplate that church employees are protected from unlawful discrimination, and that teachers in Lutheran schools have legally enforceable rights. The LCMS has published a Personnel Manual Prototype, as a suggested guideline for use by congregations, which includes the following policy regarding "Equal Employment Opportunity": [Name of Congregation or District] is in full agreement with the intent of the Civil Rights Laws. It is our firm belief that the basis of employee selection for hiring, promotion, transfer, training, job assignment, hours of work, rate of pay, and working conditions should be according to ability, not age, race color, national origin, ancestry, gender, disability, or any other factors not considered pertinent to performance. * * * Because we are a church body, certain positions demand extensive understanding of and commitment to the doctrinal view of The [LCMS]. For such positions, it is necessary for us to seek out individuals with specific religious training and/or synodical recognition. In addition to the extent allowed by State Law for all positions, the congregation may give preference in hiring on the basis of religion, including persons who are members in good standing of a [LCMS] congregation. * * * The position of pastor, associate pastor and assistant pastor (if applicable) or positions identifying ordained clergy status as a requirement at [Name of Congregation or District] are required to be held by ordained ministers of The [LCMS]. Based on religious belief, only males are ordained ministers in The [LCMS]. Therefore, for those positions, females will not be considered for employment. Celebration Lutheran School Personnel Manual, sec. 2.200 (June 2003), http://www.lcms.org/pages/internal.asp?NavID=2104 (last visited Mar. 12, 2009). The LCMS has also published a Governing Manual for Lutheran Schools as a resource for school administrators and congregational school boards.<11> Chapter 8 of the Governing Manual, entitled "Board Legal Considerations," addresses "Legal Implications Involving Employment" and includes a section on "Terminating Staff," which states: The board must exercise care when dealing with areas of employment of school personnel. Too often the assumption is made that because school personnel serve the church, this area doesn't need much attention. However, the same laws that govern all employment often govern employment in the church. The rights of Lutheran school educators are generally conferred by contracts or agreements existing between the teacher and the Lutheran school/congregation. Whether these are classified as calls, calls for a limited time, or simply contracts or agreements, contract law governs the employment situation. State statutes may speak to this employment as well. The board and congregation must attend to many legal aspects of employment and must be sure employees are treated in a fair and equitable manner. Governing Manual for Lutheran Schools, ch. 8, http://old.dcs.lcms.org/school/brdmanual/Chapter%20Eight.htm#Legal%20Implica tions (last visited Mar. 12, 2009). There is nothing in these documents, or elsewhere in publications of the LCMS, to suggest that a teacher's effort to assert her legal rights through the secular courts is grounds for termination. Finally, if the doctrine of the LCMS actually did prohibit employees from legal recourse to enforce federal statutory rights, the direct conflict between church doctrine and federal law would be resolved in favor of the government. Cf. Shenandoah Baptist, 899 F.2d at 1392, 1397-1400 (application of equal pay and minimum wage provision of FLSA to policy, rooted in Biblical doctrine, that paid "head-of-household salary supplement" to married male teachers while married female teachers were not eligible, did not violate Church's rights under Free Exercise or Establishment Clause); Fremont Christian School, 781 F.2d at 1367-70 (affirming injunction against parochial school's practice of denying health insurance benefits to married female teachers, while providing such benefits to single and married male teachers, and rejecting school's argument that "Title VII and the [EPA] do not apply to its employment policy of supplying health insurance to the head of the household because it is grounded in religious belief and is therefore shielded by the First Amendment"). Elimination of discrimination in employment is, without question, a compelling government interest, see Rayburn, 772 F.2d at 1168 ("It would, of course, be difficult to exaggerate the magnitude of the state's interest in assuring equal employment opportunities for all."), one that could not be achieved absent a means of secular enforcement and strong protection from retaliation for employees who seek to exercise or enforce their statutory rights. See Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 67 (2006) ("Interpreting the anti- retaliation provision [of Title VII] to provide broad protection from retaliation helps assure the cooperation upon which accomplishment of the Act's primary objective depends."); Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997) ("primary purpose of antiretaliation provisions" in Title VII and other federal fair employment statutes is "[m]aintaining unfettered access to statutory remedial mechanisms"). A religious employer cannot achieve exemption from coverage of the nation's fair employment laws - neutral statutes of general application that further a compelling government interest - simply by asserting that church doctrine does not allow its adherents to seek judicial redress. See Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 879 (1990) ("the right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)'") (citation omitted). CONCLUSION Because the ministerial exception does not preclude adjudication of the EEOC's claim that Hosanna-Tabor discharged Perich in violation of the ADA, the EEOC urges this Court to reverse the summary judgment and remand for disposition on the merits. Respectfully submitted, /s/ Dori K. Bernstein JAMES L. LEE DORI K. BERNSTEIN Deputy General Counsel Attorney VINCENT J. BLACKWOOD U.S. EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITYCOMMISSION Office of General Counsel CAROLYN L. WHEELER 131 M Street, N.E., Room 5NW10R Assistant General Counsel Washington, D.C. 20507 (202)663-4734 CERTIFICATE OF COMPLIANCE WITH Fed.R.App.P. 32(a)(7) The undersigned, counsel of record for the plaintiff-appellant, Equal Employment Opportunity Commission, furnishes the following in compliance with Fed.R.App.P. 32(a)(7): I hereby certify that this brief conforms to the rules contained in Fed.R.App.P. 32(a)(7) for a brief produced with a proportionally spaced font. The length of this brief is 13,936 words. Dated: March 19, 2009 U.S. Equal Employment Opportunity Commission Office of General Counsel 131 M Street, N.E., Room 5NW10R Washington, D.C. 20507 /s/ Dori K. Bernstein Dori K. Bernstein Attorney for the plaintiff-appellant, Equal Employment Opportunity Commission ADDENDUM Designation of Relevant District Court Documents Designation of Relevant District Court Documents Record Entry (RE) Number Document Description RE 1 Complaint RE 14 Order granting leave to intervene RE 15 Intervenor complaint RE 22 Hosanna-Tabor motion for summary judgment RE 22-9 Exh. G, articles of incorporation RE 22-10 Exh. H, 2/29/2000 colloquy letter RE 22-11 Exh. I, diploma of vocation RE 22-12 Exh. J, 2002 Lutheran annual roster RE 22-13 Exh. K, teachers contract RE 22-14 Exh. L, supplement to diploma of vocation RE 22-15 Exh. M, Perich personnel information form RE 24 Perich motion for summary judgment RE 24-3 Exh. 1, 3/19/05 letter from Salo RE 24-4 Exh. 2, Pranschke dep. RE 24-5 Exh. 3, Braun dep. RE 24-6 Exh. 4, Perich affidavit RE 24-8 Exh. 6, 8/11/04 Hoeft email RE 24-9 Exh. 7, 12/16/04 Perich email RE 24-11 Exh. 9, 1/18/05 Perich email 1/19/05 Hoeft email 1/19/05 Perich email RE 24-12 Exh. 10, 1/21/05 Hoeft email RE 24-13 Exh. 11, 1/27/05 Perich email RE 24-14 Exh. 12, 1/27/05 Hoeft email RE 24-15 Exh. 13, 1/30/05 meeting minutes RE 24-17 Exh. 15, return to work note RE 24-18 Exh. 16, Simpson dep. RE 24-19 Exh. 17, Perich email RE 24-20 Exh. 18, employee handbook RE 24-21 Exh. 19, 2/22/05 letter from Hoeft and Salo RE 24-22 Exh. 20, 2/22/05 Perich email RE 24-23 Exh. 21, 3/21/05 letter from Roach RE 24-24 Exh. 22, 4/10/05 meeting minutes RE 24-25 Exh. 23, 4/11/05 letter from Salo RE 25 Hosanna-Tabor motion for partial summary judgment on intervenor complaint RE 25-5 Exh. R, Hoeft written statement RE 34 Perich response to motion for summary judgment RE 34-8 Exh. 7, 2/22/05 letter from Salo RE 37 Perich affidavit RE 50 Opinion and order granting summary judgment RE 51 Judgment RE 53 Motion for reconsideration RE 58 Opinion and order denying reconsideration RE 59 EEOC notice of appeal RE 60 Perich notice of appeal CERTIFICATE OF SERVICE I, Dori K. Bernstein, counsel for Plaintiff-Appellant, the Equal Employment Opportunity Commission, certify that on March 19, 2009, the Brief of Appellant was filed and served electronically, pursuant to 6 Cir. R. 25(e) and (f), on the following counsel of record: Counsel for Hosanna-Tabor Evangelical Lutheran Church and School: Deano C. Ware attorneyware@msn.com Counsel for Cheryl Perich: James E. Roach jroach@vmclaw.com /s/ Dori K. Bernstein DORI K.BERNSTEIN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., Room 5NW10R Washington, D.C. 20507 (202)663-4734 Dori.Bernstein@eeoc.gov *********************************************************************** <> <1> Record references correspond to numbered entries on the district court's docket sheet and are designated "RE __ at __." The first reference to any record entry includes a description of the referenced document, see 6 Cir. R. 28(a), and all referenced record entries are listed in the Designation of Relevant District Court Documents, included as an addendum at the end of this brief. See 6 Cir. R. 28(c), 30(b). All materials filed in district court are available electronically via the ECF link on the website of the U.S. District Court for the Eastern District of Michigan, https://ecf.mied.uscourts.gov. <2> Braun oversees a district of "88 elementaries, eight high schools and 162 early childhood centers." (RE 24-5, Braun dep. at 4). <3> Two days later, Perich's attorney sent a letter to counsel for Hosanna-Tabor, asserting that the school board was acting in violation of state and federal laws that prohibit employment discrimination because of actual or perceived disability. (RE 24-23, Exh. 21, 3/21/05 letter from Roach). The letter proposed "an amicable resolution of this matter," in lieu of litigation or filing a charge with the EEOC. (RE 24-23 at 4). <4> The Third and Seventh Circuits have held that "the [ministerial] exception does not act as a jurisdictional bar, but rather, is best viewed as a challenge to the sufficiency of [a plaintiff's] claim under [Fed.R.Civ.P.] 12(b)(6)." Petruska, 462 F.2d at 302; see also Schleicher v. Salvation Army, 518 F.3d 472, 478 (7th Cir. 2008) (harmless error to dismiss ordained ministers' wage claim for lack of subject matter jurisdiction, because "[j]urisdiction is determined by what the plaintiff claims rather than by what may come into the litigation by way of defense" and court "does have jurisdiction to decide cases brought to enforce the [FLSA]"). <5> The Seventh Circuit has recently articulated a somewhat different view of the "ministers exception," calling it "a rule of interpretation, not a constitutional rule; and though it is derived from policies that animate the First Amendment, the relevant policies come from the establishment clause rather than from the free- exercise clause." Schleicher, 518 F.3d at 475. In that court's view, the "assumption behind the rule - for it is an interpretive rule - is that Congress does not want courts to interfere in the internal management of churches, as they sometimes do in the management of prisons or school systems." Id. It is difficult to square this "assumption," however, with the plain text of the federal civil rights laws, which expressly manifest Congress's intent to subject the employment decisions of religious institutions to judicial scrutiny. <6> The Fourth Circuit, as a rule, discourages reliance on its "unpublished dispositions issued prior to January 1, 2007 ... except for the purpose of establishing res judicata, estoppel, or the law of the case." 4th Cir. Local Rule 32.1. <7> The district court was apparently influenced by a recent law review note, cited in the court's opinion, (RE 50 at 12 & 19 n.7), which advocates "a rule of deference to a religious organization's reasonable claim concerning the spiritual significance of an employee's job duties." See Note, The Ministerial Exception to Title VII: The Case for a Deferential Primary Duties Test, 121 Harv. L. Rev. 1776, 1777 (2008). As the note itself acknowledges, however, this deferential approach is contrary to the objective inquiry applied by the courts, id., and recently adopted by this Court in Hollins. <8> Citing dicta from the Seventh Circuit, the district court allowed that "in those cases" "where a church uses the title ["minister"] as a mere subterfuge ... the designation will not provide protection from employment discrimination laws." (RE 50 at 17) (citing Tomic v. Catholic Dioceses of Peoria, 442 F.3d 1036, 1039 (7th Cir. 2006)). The court in Tomic applied the ministerial exception to preclude the ADEA claim of a church music director whose job required him "to assist the Office of Divine Worship in preparing and celebrating various diocesan liturgies and in planning and celebrating liturgical events," 442 F.3d at 1037, duties that supported the court's conclusion that he "performed tasks that were traditionally ecclesiastical or religious." Id. at 1040-41 (internal quotation marks and citation omitted). <9> Braun's testimony is confirmed by statistics published on the LCMS website. See Lutheran Schools Information and Statistics, Statistics for the 2008-2009 School year, http://www.lcms.org/pages/internal.asp?NavID=1739 (last visited Mar. 12, 2009). According to the LCMS statistics, of the 18,000 teachers in Lutheran schools, 6,000 are "rostered" (i.e., eligible to be called and designated "commissioned ministers"); 5,500 are non-rostered and affiliated with the LCMS; 3,800 are non-rostered and not affiliated with the LCMS (i.e., affiliated with a synod other than the Missouri Synod); and 2,700 are non-rostered and have no identified affiliation (i.e., non-Lutheran). Id. at 4. <10> One way Cline could show the school's proffered explanation was a pretext for illegal pregnancy discrimination, this Court explained, was by presenting evidence "that St. Paul enforced its premarital sex policy in a discriminatory manner - against only pregnant women, or against only women ... because a school violates Title VII if, due purely to the fact that women can become pregnant and men cannot, ... it punishes only women for sexual relations because those relations are revealed through pregnancy." Cline, 206 F.3d at 667 (internal quotation marks and citations omitted). "In other words," the Court continued, "a school cannot use the mere observation or knowledge of pregnancy as its sole method of detecting violations of its premarital sex policy." Id. Cline's evidence, the Court found, "raise[d] an issue of material fact as to whether St. Paul enforces its policy solely by observing the pregnancy of its female teachers, which would constitute a form of pregnancy discrimination." Id. <11> The LCMS Governing Manual for Lutheran Schools is published at http://old.dcs.lcms.org/school/brdmanual/default.htm (last visited Mar. 12, 2009).