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 ____________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ____________________________________________ JAMES L. LEE DORI K. BERNSTEIN Deputy General Counsel Attorney LORRAINE C. DAVIS 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 INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 I. The Status Of An Employee As A "Minister" For Purposes Of The Ministerial Exception Is A Legal Conclusion Subject to De Novo Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 II. Undisputed Evidence Of The Primary Duties Performed By Hosanna- Tabor Teachers Establishes As A Matter Of Law That Perich Was Not A Ministerial Employee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 III. The First Amendment Does Not Entitle Hosanna-Tabor To Retaliate Against Employees Who Seek To Exercise Their Federal Statutory Rights Against Discrimination. . . . . . . . . . . . . . . . . . . . . . . . . . 15 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . 25 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Page CASES Alicea-Hernandez v. The Catholic Bishop of Chicago, 320 F.3d 698 (7th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . 5, 6 American Friends Service Committee Corp. v. Thornburgh, 951 F.2d 957 (9th Cir. 1991). . . . . . . . . . . . . . . . . . . . . . . . 21 Cathedral Rock of North College Hill, Inc. v. Shalala, 223 F.3d 354 (6th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . 4 Clapper v. Chesapeake Conference of Seventh-Day Adventists, 1998 WL 904528 (4th Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . 8 Cline v. Catholic Diocese of Toledo, 206 F.3d 651 (6th Cir. 2000). . . . . . . . . . . . . . . . . . . . . 13, 14, 16 Dole v. Shenandoah Baptist Church, 899 F.2d 1389 (4th Cir. 1990). . . . . . . . . . . . . . . . . . . . . . . 12, 13 EEOC v. Fremont Christian School, 781 F.2d 1362 (9th Cir. 1986). . . . . . . . . . . . . . . . . . . . . . . 6, 12 EEOC v. Mississippi College, 626 F.2d 477 (5th Cir. 1980). . . . . . . . . . . . . . . . . . . . . . . . 6, 13 EEOC v. Pacific Press Publishing Assoc., 676 F.2d 1272 (9th Cir. 1982). . . . . . . . . . . . . . . . . . 20, 21, 22, 23 EEOC v. Southwestern Baptist Theological Seminary, 651 F.2d 277 (5th Cir. 1981). . . . . . . . . . . . . . . . . . . . . . . . 11 Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22 Geary v. Visitation of the Blessed Virgin Mary Parish School, 7 F.3d 324 (3d Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . 12, 16 Page Guinan v. Roman Catholic Archdiocese of Indianapolis, 42 F.Supp.2d 849 (S.D. Ind. 1998). . . . . . . . . . . . . . . . . . . . . . . 12 Hankins v. Lyght, 441 F.3d 96 (2d Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . .22 Hollins v. Methodist Healthcare, Inc., 474 F.3d 223 (6th Cir. 2007). . . . . . . . . . . . . . . 1, 3, 4, 5, 7, 9, 13 Hutchison v. Thomas, 789 F.2d 392 (6th Cir. 1986). . . . . . . . . . . . . . . . . . . . . . . .13, 14 Johnson v. University of Cincinnati, 215 F.3d 561 (6th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . 15 Ku v. State of Tennessee, 322 F.3d 431 (6th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . .14, 15 Lewis v. Seventh-Day Adventists Lake Region Conference, 978 F.2d 940 (6th Cir. 1992). . . . . . . . . . . . . . . . . . . . . 9, 13, 14 McClure v. Salvation Army, 460 F.2d 553 (5th Cir. 1972). . . . . . . . . . . . . . . . . . . . . . . . 4, 9 McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Ohio Civil Rights Commission v. Dayton Christian Schools, 477 U.S. 619 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Petruska v. Gannon University, 462 F.3d 294 (3d Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . 5, 9 Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164 (4th Cir. 1985). . . . . . . . . . . . . . . . . . 6, 7, 10, 13, 14 Scharon v. St. Luke's Episcopal Presbyterian Hospitals, 929 F.2d 360 (8th Cir. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . 6 Page Schleicher v. Salvation Army, 518 F.3d 472 (7th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . 9, 20 Sherbert v. Verner, 374 U.S. 398 (1963). . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22 Shirkey v. Eastwind Community Development Corp., 941 F.Supp. 567 (D.Md. 1998). . . . . . . . . . . . . . . . . . . . . . . . . .11 Starkman v. Evans, 198 F.3d 173 (5th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . 4, 5, 9 Welter v. Seton Hall Univ., 608 A.2d 206 (N.J. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Werft v. Desert Southwest Annual Conf. of the United Methodist Church, 377 F.3d 1099 (9th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . 9 Wisconsin v. Yoder, 406 U.S. 205 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22 STATUTES Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Americans With Disabilities Act of 1990, 42 U.S.C. § 12203(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 15 42 U.S.C. § 12203(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Religious Freedom Restoration Act, 42 U.S.C. § 2000bb. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 RULES AND REGULATIONS Fed.R.App.P. 32(a)(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Page ADMINISTRATIVE GUIDANCE EEOC Compliance Manual, Section 12: Religious Discrimination, No. 915.003 (July 22, 2008). . . . . . . . . . . . 5 EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans With Disabilities Act, No. 915.002 (July 27, 2000). . . . . . . . . . . . . . . . . . . . . . . . 19 INTRODUCTION The EEOC, in its opening brief (EEOC Br.), provided a comprehensive review of the legal authority establishing the following propositions: * Congress clearly expressed in the text and history of the ADA its intent to protect the employees of religious entities from disability discrimination, retaliation for opposing such discrimination, and coercion, threats, or interference with their exercise or enjoyment of statutory rights, see EEOC Br. at 22-27; * To avoid impinging on the First Amendment right of religious organizations to choose their spiritual leaders free from government interference, the federal courts have universally adopted a "ministerial exception" that precludes adjudication of claims concerning the employment of clergy and others employed in positions serving a similar ministerial function, see EEOC Br. at 27-30; * Whether an employee's claims against a religious employer are barred by the ministerial exception depends upon "the function of her employment position," as determined by an objective examination of her primary duties, Hollins v. Methodist Healthcare, Inc., 474 F.3d 223, 226 (6th Cir. 2007); see EEOC Br. at 30-33. Hosanna-Tabor concedes, as it must, that religious entities are subject to the ADA's broad prohibitions against disability-based employment discrimination and retaliation. See Hosanna-Tabor Brief (H-T Br.) at 16. Hosanna-Tabor further accepts the constitutional rationale and preclusive effect of the ministerial exception. See id. at 17-18. The parties predictably part company, however, on the application of the ministerial exception to the employment position occupied by Cheryl Perich at Hosanna-Tabor. Hosanna-Tabor argues that the district court's conclusion that Perich is a "ministerial employee" is a "factual determination" subject to reversal only if "clearly erroneous," H-T Br. at 15-16, and relies on her title, diploma, training, resume, and income tax status to support this determination. See id. at 11-12. Hosanna-Tabor is wrong on both counts. As the district court correctly acknowledged, "[a]n employee's status under the ministerial exception is a legal conclusion that rests with the court." R.50 at 10. Perich's sworn affidavit, describing in detail the duties performed by teachers at Hosanna-Tabor, furnished uncontested evidence that Perich and every other teacher - including those who were not Lutheran or "commissioned ministers" - spent most of their time instructing students in secular subjects, using non-religious texts, and less than an hour a day on religious instruction or prayer. See R.37 at 1-4; R.50 at 3-4 (summarizing evidence of duties). Under the legal standard endorsed by this Court, and consistent with the uniform precedent of other circuits holding that parochial school teachers who perform similar duties and serve the same function are not ministerial employees, see EEOC Br. at 34-36 (citing cases), this undisputed evidence establishes that Perich did not function as clergy or serve a "pastoral role," and compels the conclusion that "the function of her employment position" at Hosanna-Tabor was not ministerial. See Hollins, 474 F.3d at 226. Faced with compelling evidence of unlawful retaliation against Perich, see EEOC Br. at 51-53, Hosanna-Tabor insists its actions were justified by "the church and synod's belief against Christians suing each other in secular courts," H-T Br. at 35, and argues that the First Amendment insulates it from judicial scrutiny or statutory liability. See id. at 32-38. A religious employer's mere assertion of a doctrinal basis for a challenged employment decision, however, does not preclude federal court jurisdiction to determine whether the proffered explanation in fact motivated the allegedly unlawful action. See EEOC Br. at 47-50. Finally, even if Hosanna- Tabor were actually motivated by a sincere religious belief against employing workers who sought to exercise their statutory rights to seek redress for unlawful discrimination, its constitutional arguments would fail. See id. at 55-57. For the reasons that follow, and those stated in the opening briefs of the EEOC and Perich, the EEOC urges this Court to reverse summary judgment and remand for disposition on the merits. ARGUMENT I. The Status Of An Employee As A "Minister" For Purposes Of The Ministerial Exception Is A Legal Conclusion Subject To De Novo Review. "The status of employees as ministers for purposes of McClure [v. Salvation Army, 460 F.2d 553 (5th Cir. 1972)] remains a legal conclusion for this court." Starkman v. Evans, 198 F.3d 173, 176 (5th Cir. 1999). Under the well-settled approach endorsed by this Court, this "legal conclusion," id., is "based on the function of the plaintiff's employment position," as determined by whether the primary duties she performs are religious (i.e., liturgical, sacerdotal, spiritual, ecclesiastical) or secular in nature, see Hollins, 474 F.3d at 223, and subject to de novo appellate review. See Cathedral Rock of North College Hill, Inc. v. Shalala, 223 F.3d 354, 358 (6th Cir. 2000) ("A district court's legal determinations in dismissing a complaint for lack of subject matter jurisdiction are reviewed de novo, while any factual findings are reviewed for clear error."). Although the district court correctly recognized that "[a]n employee's status under the ministerial exception is a legal conclusion that rests with the court," R.50 at 10 (citing Starkman), Hosanna-Tabor insists that the court's conclusion that Perich was a "ministerial employee" is a "factual determination[]" that can be reversed only if "clearly erroneous," citing EEOC administrative guidance. See H- T Br. at 15-16 & n.4. Hosanna-Tabor quotes a sentence that appears in a section of the EEOC Compliance Manual, which is "designed to be a practical resource for employers, employees, practitioners, and EEOC enforcement staff on Title VII's prohibition against religious discrimination." EEOC Compliance Manual, Section 12: Religious Discrimination, No. 915.003, p.3 (July 22, 2008) (available at http://www.eeoc.gov/policy/docs/religion.html). With respect to the ministerial exception, the Compliance Manual explains: The ministerial exception applies only to those employees who perform essential religious functions, namely those whose primary duties consist of engaging in church governance, supervising a religious order, or conducting religious ritual, worship, or instruction. The exception is not limited to ordained clergy, but does not necessarily apply to everyone with a title typically conferred upon clergy (e.g., minister). In short, in each case it is necessary to make a factual determination of whether the function of the position is one to which the exception applies. Id. at p.20 (footnotes omitted). Consistent with uniform appellate precedent (and the position advanced in this litigation), the Compliance Manual instructs that application of the ministerial exception turns on the function of the position occupied by the employee claiming discrimination, as evidenced by the primary duties of the job. See EEOC Br. at 30- 33; see, e.g., Hollins, 474 F.3d at 226 ("a particular employee [is considered] a 'minister' for purposes of the ministerial exception based on the function of the plaintiff's employment position"); Petruska v. Gannon University, 462 F.3d 294, 304 n.6 (3d Cir. 2006) ("a focus on the function of an employee's position is the proper one"); Alicea-Hernandez v. The Catholic Bishop of Chicago, 320 F.3d 698, 703-04 (7th Cir. 2003) ("In determining whether an employee is considered a minister for the purposes of applying this exception, we do not look to ordination but instead to the function of the position."); Starkman, 198 F.3d at 176 ("To determine whether [plaintiff] qualifies as a 'spiritual leader' for purposes of the ministerial exception, this court will examine the employment duties and requirements of the plaintiff as well as her actual role at the church."); Scharon v. St. Luke's Episcopal Presbyterian Hospitals, 929 F.2d 360, 363 (8th Cir. 1991) ("[C]ourts consistently have subjected the personnel decisions of various religious organizations to statutory scrutiny where the duties of the employees were not of a religious nature."); EEOC v. Fremont Christian School, 781 F.2d 1362, 1370 (9th Cir. 1986) (refusing to apply ministerial exception upon "find[ing] that the duties of the teachers at Fremont Christian School do not fulfill the function of a minister"); Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164, 1168 (4th Cir. 1985) ("The 'ministerial exception' ... does not depend upon ordination but upon the function of the position" held by the complainant.); EEOC v. Mississippi College, 626 F.2d 477, 485 (5th Cir. 1980) (refusing to apply exception because Baptist "College's faculty and staff do not function as ministers"). In accord with these decisions, the Compliance Manual recognizes that deciding whether the exception applies in a particular case necessitates a factual inquiry into an employee's primary duties to determine the function of her position. In this case, the only evidence of the duties performed by Hosanna-Tabor's teachers is Perich's sworn testimony by affidavit, describing in detail the duties she and other elementary teachers performed at the school. See R.37 at 1-4. Because there is no contrary evidence in the record, the district court made no factual findings and properly accepted Perich's testimony as undisputed evidence of her duties at Hosanna-Tabor. See R.50 at 3-4. The legal question for this Court is whether the uncontested evidence of the duties performed by Hosanna-Tabor teachers supports the district court's conclusion that Perich served a ministerial function while employed in that position. II. Undisputed Evidence Of The Primary Duties Performed By Hosanna-Tabor Teachers Establishes As A Matter Of Law That Perich Was Not A Ministerial Employee. The undisputed evidence of the primarily secular duties performed by all Hosanna-Tabor teachers, whether employed on a contract or called basis, see EEOC Br. at 5-8, compels the conclusion that Perich did not function as clergy or serve a pastoral role while employed at the school. See id. at 33-45. The uncontested fact that Hosanna-Tabor hires non-Lutherans to perform these same duties, see R.37 at 3-4 ¶¶12-13, 17; R.50 at 3-4, demonstrates beyond cavil that "the function of [her] employment position," see Hollins, 474 F.3d at 226, was not "ministerial." An exception designed to preserve "a church's free choice of its leaders" without government restriction, see Rayburn, 772 F.2d at 1168, 1169 ("introduction of government standards to the selection of spiritual leaders" would impermissibly burden free exercise of religion), surely would not bar the claims of employees who occupy a position for which affiliation with the Lutheran church is not required. This legal conclusion as to Perich's non-ministerial status, for purposes of the ministerial exception, is supported by a wealth of precedent holding that parochial school teachers who perform similar duties and serve a comparable function are not "ministerial employees" exempt from the protections of federal fair employment laws. See id. at 34-36 (citing cases). Hosanna-Tabor fails to distinguish these cases, or to explain why Perich should be deprived of the statutory protections from discrimination and retaliation that Congress has extended, and these courts have held, to protect teachers who perform essentially the same job and serve the same function at other religious schools. The only case Hosanna-Tabor cites that applies the ministerial exception to an employee with duties similar to those of Hosanna-Tabor's teachers is the unpublished non-precedential opinion of the Fourth Circuit in Clapper v. Chesapeake Conference of Seventh-Day Adventists, 1998 WL 904528 (4th Cir. 1998). H-T Br. at 29-32; see EEOC Br. at 37-39 (distinguishing Clapper). The other cases on which Hosanna-Tabor primarily relies applied the ministerial exception to preclude the employment claims of ordained ministers or clergy, see, e.g., Schleicher v. Salvation Army, 518 F.3d 472, 474 (7th Cir. 2008); Werft v. Desert Southwest Annual Conf. of the United Methodist Church, 377 F.3d 1099, 1100 (9th Cir. 2004); Lewis v. Seventh-Day Adventists Lake Region Conference, 978 F.2d 940, 941 (6th Cir. 1992); McClure v. Salvation Army, 460 F.2d 553, 556 (5th Cir. 1972) (plaintiff's "status as a minister engaged in the religious or ecclesiastical activities of the church" undisputed); or employees whose primary duties were religious or who served a pastoral role, see, e.g., Hollins, 474 F.3d at 226 (resident in Methodist hospital's clinical pastoral education program filled a "pastoral role" and waived argument that "she was not a 'ministerial employee'"); Petruska, 462 F.3d at 307 n.10 (primary duties of chaplain at Catholic university "involved ministerial functions," in that "she served as co-chair for the Catholic Identity Task Force, held prayer services, and was traditionally involved in planning liturgies" and was expected "to increase participation in sacramental life of [the University] community"); Starkman, 198 F.3d at 176-77 (church choir director who listed 23 "religious or worship-oriented job duties, compared to only three entries for nonreligious, nonworship-oriented, or secular duties," considered "nineteen of the twenty one religious tasks as 'essential,' while she designate[d] all of her three nonreligious duties as 'not essential,'" and "concede[d] that, for her and her congregation, music constitutes a form of prayer that is an integral part of worship services and Scripture readings ... did serve as a spiritual leader and thus properly falls under the rubric of [the] ministerial exception"); Rayburn, 772 F.2d at 1168 (associate in pastoral care served as "pastoral advisor to the Sabbath School that introduces children to the life of the church," led "small congregational groups in Bible study," was "counselor and ... pastor to the singles group," stood "on the platform during services," "[led] out the congregation during the church's solemn rites," and "preach[ed] occasionally from the pulpit"). The function served and duties performed by the ministerial employee in each of these cases stands in sharp contrast to the instruction in secular subjects that comprised the primary duties of teachers at Hosanna-Tabor. Hosanna-Tabor eschews the functional primary duties analysis of the teaching position Perich held, and instead urges the Court to defer to Perich's designation as a "commissioned minister," H-T Br. at 22, and to focus on such factors as her training at Concordia College, id. at 24; the length of time it took her to complete her colloquy, id. at 31; her requisite commitment to the values and teachings of the Evangelical Lutheran Church, id. at 25; her subjective view of her role as a teacher in Lutheran schools, id. at 26; and her decision to claim a small housing allowance to offset her income tax liability. Id. Hosanna-Tabor argues, in effect, that any employee who is considered a "minister" by her religious employer is exempt from federal statutory protection against discrimination and retaliation, so long as the designation is "genuine," i.e., neither fraudulent nor an effort to evade statutory coverage. See H-T Br. at 12-13, 27-29, 31-32. This, however, is not the law. The ministerial exception does not preclude the claims of an employee who does not function as clergy, serve a pastoral role, or whose primary duties are non- religious, regardless of: * whether she is ordained or designated a "minister" by her church, see EEOC v. Southwestern Baptist Theological Seminary, 651 F.2d 277, 284 (5th Cir. 1981) (support staff who performed "a variety of non-academic functions" at Baptist seminary were not ministerial employees, even though some had "been ordained in the Baptist denomination" and considered their service a "calling," and "administrators whose function relates exclusively to the Seminary's finance, maintenance, and other non-academic departments, though considered ministers by the Seminary, [were] not ministers"); see also Shirkey v. Eastwind Community Development Corp., 941 F.Supp. 567, 577-78 (D.Md. 1998) (ministerial exception did not preclude race discrimination claim of Methodist minister who was denied the opportunity to apply for community development position that was "part of the Methodist Church's community ministry"); Welter v. Seton Hall Univ., 608 A.2d 206, 298-99 (N.J. 1992) (ministerial exception did not bar contract claims of nuns employed as computer-science instructors at Catholic university); * whether she or her employer sincerely regard her work as a "ministry," see, e.g., Dole v. Shenandoah Baptist Church, 899 F.2d 1389, 1396-97 (4th Cir. 1990) (exception did not apply to religious school teachers who "consider[ed] teaching to be their personal ministry"); Fremont Christian School, 781 F.2d at 1369 (exception did not apply to parochial school teachers who had "a highly specialized role ... claim[ed] to be a ministry"); Guinan v. Roman Catholic Archdiocese of Indianapolis, 42 F.Supp.2d 849, 850 (S.D. Ind. 1998) (exception did not apply to Catholic school teacher who "perceived one of her principal duties to be ... an 'evangelist' to her students"); * whether she has obtained specialized religious training or education, see Guinan, 42 F.Supp.2d at 852-53 (fifth-grade teacher trained as a "Catechist" specially qualified to teach Christianity was not a ministerial employee); or, * whether, incident to employment, she pledges her commitment to specific religious tenets or teachings, see, e.g., Geary v. Visitation of the Blessed Virgin Mary Parish School, 7 F.3d 324 (3d Cir. 1993) (exception did not apply, although school required teacher to demonstrate "commitment to the philosophy and principles of the Catholic Church" and "to be a visible witness to the Catholic Church's philosophy and principles"); Shenandoah Baptist, 899 F.2d at 1396-97 (exception did not apply to teachers required "to subscribe to the [church's] statement of faith as a condition of employment"); Mississippi College, 626 F.2d at 485 ("That faculty members are expected to serve as exemplars of practicing Christians does not serve to make the terms and conditions of their employment matters of church administration and thus purely of ecclesiastical concern."). In an effort to distinguish Cline v. Catholic Diocese of Toledo, 206 F.3d 651 (6th Cir. 2000), Hosanna-Tabor wrongly asserts that Cline "was decided before this circuit had formally adopted the 'ministerial exception.'" H-T Br. at 21. As the Court in Hollins recognized, however, this Court had adopted and applied the ministerial exception to preclude common law employment claims asserted by ordained clergy against their religious employers long before 2000, when Cline was decided. See Hollins, 474 F.3d at 225 (citing Lewis v. Seventh Day Adventists Lake Region Conference, 978 F.2d 940 (6th Cir. 1992); Hutchison v. Thomas, 789 F.2d 392 (6th Cir. 1986)). These earlier decisions rest on the same constitutional rationale as cases applying the exception to bar federal statutory claims, and both rely on Rayburn, 772 F.2d 1164 (4th Cir. 1985), the first decision to endorse the primary duties analysis as the method to determine whether the Title VII claims of a non-ordained employee were nonetheless precluded because she functioned as clergy. See Lewis, 978 F.2d at 943 (citing Rayburn); Hutchison, 789 F.2d at 392 (holding "the same reasoning" of the Fourth Circuit in Rayburn, 772 F.2d at 1168, "is applicable in the instant case"). This Court in Cline, moreover, cited Rayburn for the proposition that "'Title VII does not confer upon religious organizations a license to make [hiring decisions] on the basis of race, sex, or national origin.'" Cline, 206 F.3d at 658 (quoting Rayburn, 772 F.2d at 1166). As the EEOC has acknowledged, see EEOC Br. at 50, the opinion in Cline does not explicitly address whether the ministerial exception precluded the Title VII claims of a Catholic school teacher who signed a "Teacher-Minister Contract" that "incorporate[d] the provisions of the [Affirmations for Employment in the Diocese of Toledo] as part of its terms and conditions" and "outline[d] the ministerial responsibilities of the 'teacher/ minister.'" See id. at 655-56. There can be no doubt, however, that at the time Cline was decided, this Court had previously adopted the ministerial exception and was aware of its extension in Rayburn to non-ordained employees who function as clergy. Under these circumstances, this Court's assumption of jurisdiction to address the merits of the plaintiff's Title VII claims in Cline is persuasive authority that the district court erred in ruling that it lacked subject matter jurisdiction over the ADA claims in this case. See Ku v. State of Tennessee, 322 F.3d 431, 433 (6th Cir. 2003) ("Because it is a fundamental 'subject matter' limitation on federal judicial power, a defect in a federal court's original jurisdiction need not be asserted by any party, cannot be waived by any party, and must be raised by a court sua sponte when noticed."). III. The First Amendment Does Not Entitle Hosanna-Tabor To Retaliate Against Employees Who Seek To Exercise Their Federal Statutory Rights Against Discrimination. The ADA, like Title VII, prohibits an employer from discriminating against an employee who opposes conduct she reasonably believes violates the statute. See 42 U.S.C. § 12203(a) (ADA); 42 U.S.C. § 2000e-3(a) (Title VII); Johnson v. University of Cincinnati, 215 F.3d 561, 579 (6th Cir. 2000) ("an employee is protected against employer retaliation for opposing any practice that the employee reasonably believes to be a violation"). In addition, the ADA forbids an employer from interference, coercion, intimidation, or threats directed at an employee who seeks to exercise or enjoy statutory rights. 42 U.S.C. § 12203(b). Faced with compelling evidence that its school board and administrators violated these provisions in their treatment of Cheryl Perich, Hosanna-Tabor argues that the First Amendment insulates it from judicial scrutiny because its actions were justified by "the church and synod's belief against Christians suing each other in secular courts." See H-T Br. at 35. Hosanna-Tabor's actions, however, are not constitutionally immune from judicial review. "Even religious schools cannot claim to be wholly free from some [government] regulation, and an adjudicative tribunal "violates no constitutional rights by merely investigating the circumstances of [a parochial school 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); see also Cline, 206 F.3d at 666 ("ultimate question" for court deciding sex and pregnancy discrimination claim of teacher fired by Catholic school was "whether [the school's] premarital sex policy was applied in a discriminatory way, or whether it was the true reason the school terminated [plaintiff]"); Geary, 7 F.3d at 330 (First Amendment did not preclude age discrimination claim of teacher against Catholic school where "[t]he secular tribunal merely asks whether a sincerely held religious belief actually motivated the institution's actions"). There is, at the very least, a genuine material factual dispute whether the purported doctrinal basis for firing Perich - mentioned for the first time in Hoeft's deposition in June 2008 - in fact motivated Hosanna-Tabor, given the failure to cite this doctrine in any of the contemporaneous documentation of the decision-making process. See EEOC Br. at 51-53. Perich had taught at Hosanna-Tabor for four years, and planned to return in the 2004-2005 school year, when she became ill. See EEOC Br. at 8.<1> After several months of disability leave, Perich informed principal Stacey Hoeft in mid- December 2004 that her doctor had reached a definitive diagnosis of narcolepsy and predicted she would be able to return to work within a couple of months. Id. In mid-January, Hoeft told Perich she would soon ask teachers whether they planned to return the next school year, and asked Perich to discuss with her doctor what she would "be able to do." Id. at 9. Perich replied immediately that once her medications were adjusted, her doctor had assured her, she would be "fully functional" and able to perform her job, and informed Hoeft the following week that her doctor estimated she could return to work "between February 14 and 28." Id. at 9-10. Three days later, Hoeft and the school board informed the congregation that it was "very unlikely Ms. Perich will be physically capable to return to the classroom this year or next year," and sought permission to request her resignation. Id. at 11. On February 8, 2005, Perich obtained a full medical release to return to work without restrictions, which she presented to the school board at a meeting on February 13. Id. at 12. At the meeting, board members expressed fears and concerns related to her medical condition, and board president Scott Salo asked for her voluntary resignation. Id. at 12-13. Perich told the board she was "fully able to return to work as of February 22," and "had no interest whatsoever in resigning." Id. at 12. Perich confirmed her intention to return to work by sending an email to Hoeft on the night of February 21, and arrived at school the next morning. Id. at 13-14. Hoeft ordered her to leave the premises and, at Perich's request, provided written confirmation directing her to remain on leave while the board met to "develop a plan for your possible return." Id. at 14. During a call later that day, Perich informed Hoeft that while she was trying to "work out the issues" with the board, she had "been talking to an attorney and intend[ed] to assert [her] legal rights" by "filing a lawsuit for discrimination based on her disability" if a compromise could not be reached. Id. That night, the board met and voted to take steps to terminate her employment. Id. at 15. James Pranschke, then-president of the congregation's board of directors, testified that "the main action" that prompted the decision to fire Perich "was threatening to sue." Id. at 16. Salo subsequently informed Perich that the board would recommend her discharge to the congregation, citing her "insubordination and disruptive behavior on Tuesday, February 22, 2005" - the date Perich reported back to work and informed Hoeft that she planned to assert her legal rights against disability discrimination - 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. Id. Salo reminded Perich that if she agreed to resign voluntarily, her name would be referred for possible employment in "a new job with another Lutheran School," but she would lose this benefit if she were discharged. Id. This series of events provides compelling evidence that Hosanna-Perich tried to force Perich to resign from her tenured teaching position based on medically unsupported fears about her medical condition;<2> retaliated against Perich when, by refusing to resign, she opposed actions she reasonably believed were in violation of the ADA;<3> decided to fire her after she told Hoeft she had consulted a lawyer and, if necessary, would exercise her statutory right to pursue legal redress for disability discrimination; and threatened to "blackball" her if she did not back down and agree to resign. Even if Hosanna-Tabor were actually motivated by a sincerely held religious belief that "'Christians should not sue Christians in secular courts,'" H-T Br. at 34 (quoting RE 50 at 17), its doctrinal defense would not survive constitutional scrutiny. See EEOC Br. at 55-57. In seeking immunity from the federal statutory prohibitions against retaliation, Hosanna-Tabor relies exclusively on pure dictum, in which the Seventh Circuit hypothesized a defense the Salvation Army might have offered in response to a claim of retaliation that the plaintiffs never asserted. See Schleicher, 518 F.3d at 474 (quoted in H-T Br. at 33). The Ninth Circuit, however, has squarely rejected Hosanna-Tabor's argument in a decision resolving the very question that was neither briefed, argued, nor decided in Schleicher. In EEOC v. Pacific Press Publishing Assoc., 676 F.2d 1272 (9th Cir. 1982), the governing body of the Adventist Church passed a resolution recommending that two employees of a Church-affiliated nonprofit publisher of religious materials be fired for participating in a Title VII suit challenging sex-based pay discrimination. Id. at 1275. The recommendation was based on finding that "both employees failed to meet the requisite high standards of adherence to Bible teachings and church authority because they had sued the church and 'were at variance with the church and unresponsive to counsel.'" Id. In response to the EEOC's enforcement suit on behalf of one of the fired employees, the religious employer "justifie[d] her dismissal on religious grounds, citing her violation of church doctrines which prohibit lawsuits by members against the church," and argued that subjecting it to Title VII liability for the discharge would violate the First Amendment. Id. at 1280. The Ninth Circuit applied the three-part balancing test that then governed claims under the Free Exercise Clause and rejected the employer's constitutional argument. Id. at 1279 (citing Wisconsin v. Yoder, 406 U.S. 205 (1972) and Sherbert v. Verner, 374 U.S. 398 (1963)).<4> The Court acknowledged "a substantial impact on the exercise of religious beliefs because EEOC's jurisdiction to prosecute the retaliatory action taken against [the employee] potentially will impose liability on [the employer] for disciplinary actions based on religious doctrine," yet concluded that "the government's compelling interest in assuring equal employment opportunities justifies this burden." Id. Due to the striking similarity of Hosanna-Tabor's argument to the issue presented in Pacific Press, the Court's rationale and holding merit extended quotation: EEOC enforcement actions are triggered only when the individual complainant files charges with the Commission: an employee who initiates a Title VII action not only redresses his own injury but also vindicates important congressional policy against discriminatory employment. ... To permit the various Adventist institutions to retaliate against employees who challenge discrimination through EEOC procedures would defeat Congress' intention to protect employees of religious employers. The effect would be to withdraw Title VII's protections from employees at the hundreds of diverse organizations affiliated with the Adventist Church, including businesses which process food, sell insurance, invest in stocks and bonds, and run schools, hospitals, laboratories, rest homes and sanitariums. Id. (internal quotation marks and citation omitted). Acceptance of Hosanna-Tabor's constitutional argument would have the same deleterious effect on the enforcement of federal fair employment laws that Congress clearly intended would prohibit discrimination and retaliation by religious entities. Because Hosanna-Tabor's asserted "prohibition of lawsuits conflicts with the necessary enforcement mechanism Congress provided to ensure equal employment and to protect employees from retaliation," this Court should conclude, as the Ninth Circuit has, "that the compelling public interest embodied in Title VII [and the ADA] simply outweighs [Hosanna-Tabor's] assertion that the pervasively religious nature of its activities or the exercise of its particular religious belief prohibiting civil suits immunizes [its] employment policies from EEOC regulation." See id. at 1281. CONCLUSION Because the district court erred in holding that the ministerial exception precludes subject matter jurisdiction over the EEOC's claim that Hosanna-Tabor retaliated against Cheryl Perich and interfered with her exercise and enjoyment of statutory rights under the ADA, the EEOC urges this Court to reverse and remand for disposition on the merits. Respectfully submitted, /s/ Dori K. Bernstein JAMES L. LEE DORI K. BERNSTEIN Deputy General Counsel Attorney LORRAINE C. DAVIS 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 5,620 words. Dated: May 6, 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 CERTIFICATE OF SERVICE I, Dori K. Bernstein, counsel for Plaintiff-Appellant, the Equal Employment Opportunity Commission, certify that on May 6, 2009, the Reply 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> Original record references appear at the cited pages of the EEOC's opening brief. <2> Hosanna-Tabor references medical records indicating that Perich consulted her doctor in May, July, and October 2005 for various health-related issues. See H-T Br. at 9-10. Obviously, since these records post-date her discharge, their contents could not have influenced Hosanna-Tabor's refusal to allow her to return to work in February 2005 or the decision in March to fire her. See McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 359 (1995) (employer cannot escape liability for unlawful employment action by relying on information acquired during litigation because "[t]he employer could not have been motivated by knowledge it did not have"). The only medical information Hosanna-Tabor had at the time of the actions at issue in this case was the full medical release provided by Perich's doctor, and his repeated assurances that she would be "fully functional" once her medications were adjusted. Hoeft frankly admitted she had "no knowledge whatsoever about [Perich's] condition," and never pursued Perich's offer to provide further information obtained from her physician. See EEOC Br. at 9. Had Hosanna-Tabor required additional information about Perich's health to ensure that she would be able to perform her job, the school could have sought further assurances from her physician or required a medical examination. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the [ADA], No. 915.002 at no. 17 (July 27, 2000) ("If an employer has a reasonable belief that an employee's present ability to perform essential job functions will be impaired by a medical condition or that s/he will pose a direct threat due to a medical condition, the employer may make disability- related inquiries or require the employee to submit to a medical examination.") (available at http://www.eeoc.gov/policy/docs/guidance-inquiries.html). The school was not free, however, to ignore the only medical information it had (i.e., her doctor's opinion that she would be "fully functional" and could return to work and perform her job without restrictions), rely on unsubstantiated fears about her condition, and tell the congregation she would be unable to return to work during the present or following school year. <3> The reasonableness of Perich's belief that Hosanna-Tabor was acting in violation of the ADA is confirmed by the concerns expressed by Bruce Braun, super- intendent of Lutheran schools in Michigan. When Hoeft informed Braun that Hosanna-Tabor was "really considering terminating" Perich, Braun responded that firing "someone with a disability" was not his "area of expertise," and advised Hoeft "to get an attorney who deals with labor issues." See EEOC Br. at 15-16. <4> The Supreme Court in Employment Division, Department of Human Rsources of Oregon v. Smith, 494 U.S. 872 (1990), "dramatically altered the manner in which [courts] must evaluate free exercise complaints," see American Friends Service Committee Corp. v. Thornburgh, 951 F.2d 957, 960 (9th Cir. 1991), replacing the Sherbert balancing test - which required a compelling government interest that justified the burden imposed on the exercise of religious belief - with a general rule that "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).'" Smith, 494 U.S. at 879 (citation omitted). It is significant that the Ninth Circuit rejected Hosanna-Tabor's argument even under the far more rigorous constitutional scrutiny required before Smith (and that Congress sought to revive in the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb; see Hankins v. Lyght, 441 F.3d 96, 105 n.5 (2d Cir. 2006) ("The RFRA's stated purposes including 'restor[ing] the compelling interest test as set forth in [Sherbert and Yoder].'")). Hosanna-Tabor neither cites nor relies on RFRA in this appeal.