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 ____________________________________________ RESPONSE OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION TO PETITION FOR REHEARING EN BANC ____________________________________________ P. DAVID LOPEZ DORI K. BERNSTEIN General Counsel Attorney CAROLYN L. WHEELER U.S. EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., Room 5NW10R Washington, D.C. 20507 (202) 663-4734 TABLE OF CONTENTS Page TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF UNDISPUTED FACTS. . . . . . . . . . . . . . . . . . . . . . . . 1 PANEL OPINION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 En Banc Review Is Not Warranted Because The Panel Correctly Applied Circuit Precedent And Held, Consistent With The Precedent Of Six Sister Circuits, That The Ministerial Exception Does Not Preclude Adjudication Of This ADA Claim. . . . . . . . . . . . . . . . . . . . . . . . 4 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Page CASES Alcazar v. Corp. of the Catholic Archbishop of Seattle, 598 F.3d 668 (9th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . 7 Clapper v. Chesapeake Conference of Seventh-Day Adventists, 1998 WL 904528 (4th Cir. 1998). . . . . . . . . . . . . . . . . . . . . . 9 Cline v. Catholic Diocese of Toledo, 206 F.3d 651 (6th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . 5 Coulee Catholic Schools v. Labor & Industry Review Comm., 768 N.W.2d 868 (Wis. 2009). . . . . . . . . . . . . . . . . . . . . . . . 10 Corp. of the Presiding Bishop of the Church of Jesus Christ of the Latter-Day Saints v. Amos, 483 U.S. 327 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 DeArment v. D.L. Harvey, 932 F.2d 721 (8th Cir. 1991). . . . . . . . . . . . . . . . . . . . . . . . 9 DeMarco v. Holy Cross High School, 4 F.3d 166 (2d Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . .8 Dole v. Shenandoah Baptist Church, 899 F.2d 1389 (4th Cir. 1990). . . . . . . . . . . . . . . . . . . . . . . . 8 EEOC v. Catholic Univ. of America, 83 F.3d 455 (D.C. Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . . 6 EEOC v. Fremont Christian School, 781 F.2d 1362 (9th Cir. 1986). . . . . . . . . . . . . . . . . . . . . . . . 8 EEOC v. Mississippi College, 626 F.2d 477 (5th Cir. 1980). . . . . . . . . . . . . . . . . . . . . .5, 7, 8 Geary v. Visitation of the Blessed Virgin Mary Parish School, 7 F.3d 324 (3d Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . 8 Page Hollins v. Methodist Healthcare, 474 F.3d 223 (6th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . 3, 7 Petruska v. Gannon Univ., 462 F.3d 294 (3d Cir. 2006). . . . . . . . . . . . . . . . . . . . . . 6, 7 Rayburn v. General Conf. of Seventh-Day Adventists, 772 F.2d 1164 (4th Cir. 1985). . . . . . . . . . . . . . . . . . . . . 5, 6, 7 Rweyemamu v. Cote, 520 F.3d 198 (2d Cir. 2008). . . . . . . . . . . . . . . . . . . . . . 6, 7 Scharon v. St. Luke's Episcopal Presbyterian Hospitals, 929 F.2d 360 (8th Cir. 1991). . . . . . . . . . . . . . . . . . . . . . . . 7 Starkman v. Evans, 198 F.3d 173 (5th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . 7 Weishuhn v. Catholic Diocese of Lansing, ___ N.W.2d ___, 2010 WL 290516 (Mich. App.). . . . . . . . . . . . . . 9, 10 STATUTES Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(e)(2). . . . . . . . . . . . . . . . . . . . . . . . . . 5 Americans With Disabilities Act of 1990, 42 U.S.C. § 12112(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 42 U.S.C. § 12113(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 42 U.S.C. § 12203(a). . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4 42 U.S.C. § 12203(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 RULES AND REGULATIONS F.R.A.P. 35(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 F.R.A.P. 35(b)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . . 1, 10 4th Cir. Local R. 32.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . .9 6 Cir. R. 35(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 LEGISLATIVE HISTORY H.R. Rep. No. 485 part 2, 101st Cong., 2d Sess. (1990). . . . . . . . . . . . 4 S. Rep. No. 116, 101st Cong., 1st Sess. (1989). . . . . . . . . . . . . . . . 5 INTRODUCTION A petition for rehearing en banc "is an extraordinary procedure intended to bring to the attention of the entire court a precedent-setting error of exceptional public importance or an opinion that directly conflicts with Supreme Court or Sixth Circuit precedent." 6 Cir. R. 35(c); F.R.A.P. 35(a) (rehearing en banc "is not favored and ordinarily will not be ordered"). The panel correctly applied Sixth Circuit precedent to undisputed facts and held that the ministerial exception does not preclude adjudication of the federal employment claims of a parochial school teacher who teaches primarily secular subjects. Because this holding is consistent with "the authoritative decisions of [every] other [federal appellate court] that [has] addressed the issue," F.R.A.P. 35(b)(1)(B), en banc review is unwarranted. STATEMENT OF UNDISPUTED FACTS Hosanna-Tabor, a church affiliated with the Lutheran Church-Missouri Synod (LCMS), operates a school in which it employs "lay" a/k/a "contract" teachers, and "called" teachers, i.e., those designated "commissioned ministers" by the LCMS upon completing religious "colloquy classes." Op. at 2. Hosanna- Tabor does not require teachers to be Lutheran, and assigns "identical responsibilities" to all called and contract teachers - Lutheran or not. Id. at 4. Cheryl Perich worked as an elementary teacher at Hosanna-Tabor from 1999 through 2005. During her first year of employment as a contract teacher, she completed the colloquy classes required to be designated a commissioned minister, and continued her employment as a called teacher the following year. Id. at 3. Her job duties, like those of every other teacher at the school, consisted primarily of instructing students in secular subjects, using non-religious texts, with about 45 minutes of each school day devoted to religious instruction and prayer. Id. at 3-4. Perich became ill in June 2004. Id. at 4. When she recovered and attempted to return to work in February 2005, the school urged her to resign voluntarily. Id. at 5-6. After Perich refused to resign and told the principal "she would assert her legal rights against discrimination," she was fired. Id. at 6-7. The EEOC sued, and Perich intervened, claiming Hosanna-Tabor fired her and otherwise interfered with her exercise of rights under the Americans with Disabilities Act (ADA), see 42 U.S.C. § 12203(a),(b). The district court dismissed the suit, holding "the court could not inquire into her claims of retaliation because they fell within the 'ministerial exception' to the ADA." Op. at 7. PANEL OPINION A unanimous panel of this Court vacated the judgment and remanded for adjudication on the merits. Op. at 18. The panel recognized that "[t]o determine whether an employee is ministerial" - and therefore constitutionally barred from litigating employment claims against her religious employer - "this Circuit has instructed courts to look at the function, or 'primary duties' of the employee . . . rather than the fact of ordination." Id. at 12 (quoting Hollins v. United Methodist Healthcare, 474 F.3d 223, 226 (6th Cir. 2007)). Undisputed evidence "that Perich's employment duties were identical when she was a contract teacher and a called teacher"; "that she taught math, language arts, social studies, science, gym, art, and music using secular textbooks" and "seldom introduced religion into secular discussions"; that "teachers leading chapel or teaching religion were not required to be called or even Lutheran, and, in fact, at least one teacher was not"; and "that activities devoted to religion" - such as religious instruction and prayer - "consumed approximately forty-five minutes of the seven hour school day"; convinced the panel that "the district court erred in its legal conclusion classifying Perich as a ministerial employee." Id. at 14. Based on this record, the panel found it "clear that Perich's primary function was teaching secular subjects, not 'spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship.'" Id. (citation omitted). Perich's participation in and leadership of "some religious activities throughout the day," the panel explained, "does not make her primary function religious," as "underscored by the fact that teachers were not required to be called or even Lutheran to conduct these religious activities." Id. at 15. Nor does Hosanna-Tabor's "generally religious character" - a feature of "all religious schools by definition" - or its characterization of "staff members as 'fine Christian role models' . . . transform Perich's primary responsibilities in the classroom into religious activities." Id. "Similarly," the panel observed, "Perich's extra religious training as a result of completing her colloquy did not affect the duties she performed on a daily basis." Id. at 16. ARGUMENT En Banc Review Is Not Warranted Because The Panel Correctly Applied Circuit Precedent And Held, Consistent With The Precedent Of Six Sister Circuits, That The Ministerial Exception Does Not Preclude Adjudication Of This ADA Claim. As the panel recognized, see op. at 9, the plain text of the ADA manifests Congress's intent to protect the employees of religious entities, including sectarian schools like Hosanna-Tabor, from unlawful discrimination and retaliation on the job, see 42 U.S.C. §§ 12112(a), 12203, subject to a statutory "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); see op. at 9-10 (quoting 42 U.S.C. §§ 12112(a), 12203(a), 12113(c)). Congress intended that, with respect to religious employers, the ADA be interpreted and applied in the same manner as Title VII of the Civil Rights Act of 1964. See H.R. Rep. No. 485 part 2, 101st Cong., 2d Sess. 75-76 (1990) ("[I]t 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 provided in the text of Title VII that sectarian schools, in particular, may lawfully prefer employees of a particular religion, but are otherwise fully subject to the prohibitions against employment discrimination and retaliation. 42 U.S.C. § 2000e-2(e)(2); see Cline v. Catholic Diocese v. Toledo, 206 F.3d 651, 657 (6th Cir. 2000) ("Title VII exempts religious organizations for 'discrimination based on religion,'" but "does not exempt them 'with respect to all discrimination'" and "'still applies . . . to a religious institution charged with sex discrimination.'"). The text and history of the ADA and Title VII thus reflect Congress's effort to "alleviat[e] significant governmental interference with the ability of religious organizations to define and carry out their religious missions," Corp. of the Presiding Bishop of the Church of Jesus Christ of the Latter-Day Saints v. Amos, 483 U.S. 327, 339 (1987), while furthering the government's compelling interest in eradicating unlawful employment discrimination, see EEOC v. Mississippi College, 626 F.2d 477, 488 (5th Cir. 1980). In addition to this statutory exemption, this Court, like every other Circuit to have confronted the question, has endorsed a "ministerial exception" that operates to bar adjudication of employment-related claims infringing on the constitutional interest in church autonomy, which entitles a religious entity to select its "spiritual leaders" - i.e., those who function as clergy or serve a pastoral role - without governmental restriction. See Rayburn v. General Conf. of Seventh-Day Adventists, 772 F.2d 1164, 1168-69 (4th Cir. 1985); op. at 10- 12. The exception 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 Univ. of America, 83 F.3d 455, 460 (D.C. Cir. 1996). Where applicable, the ministerial 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 the church's constitutional right of autonomy in its own domain," id. at 467, and "bars any inquiry into a religious organization's underlying motivation for the contested employment decision," Petruska v. Gannon Univ., 462 F.3d 294, 304 (3d Cir. 2006). The scope of the exception, as well as the precise analysis to determine whether a particular claimant is a "ministerial employee" whose claims are constitutionally precluded, varies somewhat among the Circuits. See generally Rweyemamu v. Cote, 520 F.3d 198, 205-08 (2d Cir. 2008). This Court, like several other Circuits, has adopted the "general rule" that "the ministerial exception will be invoked" to bar adjudication of employment claims against a religious entity "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.'" Hollins, 474 F.3d at 226 (citations omitted); see also Rayburn, 772 F.2d at 1169 (4th Cir.); Catholic Univ., 83 F.3d at 351 (D.C. Cir.); accord Petruska, 462 F.3d at 307 n.10 (university chaplain's "complaint establishes that her primary duties involved ministerial functions," i.e., co-chaired Catholic Identity Task Force, "held prayer services, and was traditionally involved in planning liturgies") (emphasis added); Scharon v. St. Luke's Episcopal Presbyterian Hospitals, 929 F.2d 360, 362-63 (8th Cir. 1991) (because Chaplain at church-run hospital was "primarily a 'ministerial position'" where "religious ministry of pastoral care" comprised "seventy percent of a Chaplain's duties," ordained priest who held position "was not a secular employee who happened to perform some religious duties; she was a spiritual employee who also performed some secular duties"). Other courts have adopted somewhat different formulations to determine whether an employee holds a "ministerial" position subject to the exception. See, e.g., Alcazar v. Corp. of the Catholic Archbishop of Seattle, 598 F.3d 668, 676 (9th Cir. 2010)<1>; Rweyemamu, 520 F.3d at 208 (2d Cir.); Starkman v. Evans, 198 F.3d 173, 176 (5th Cir. 1999). Every Circuit - including the Ninth, Second, and Fifth Circuits, which add other factors to the analysis - that has considered whether the ministerial exception precludes adjudication of the federal employment claims of parochial school faculty who, like Perich, are assigned to teach primarily secular subjects, has held, like the panel in this case, that the exception does not apply. See EEOC v. Fremont Christian School, 781 F.2d 1362, 1364, 1369-70 (9th Cir. 1986) (ministerial exception did not bar sex discrimination claims of teachers who occupied a "highly specialized role" at Christian school that Church considered "a ministry" and "an integral part of the religious mission of the Church to its children"); DeMarco v. Holy Cross High School, 4 F.3d 166, 172-73 (2d Cir. 1993) (age discrimination claim of Catholic high school teacher, whose religious duties included leading class in prayers and attending mass, not precluded by ministerial exception); Mississippi College, 626 F.2d at 485-86 (5th Cir.) (faculty and staff of 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"); Geary v. Visitation of the Blessed Virgin Mary Parish School, 7 F.3d 324, 331 (3d Cir. 1993) (ministerial exception did not bar age discrimination claims of Catholic elementary school teacher, "notwithstanding [her] apparent general employment obligation to be a visible witness to the Catholic Church's philosophy and principles"); Dole v. Shenandoah Baptist Church, 899 F.2d 1389, 1392, 1396-97 (4th Cir. 1990) (pay discrimination 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 statutory exemption for "ministers" and other spiritual leaders); DeArment v. D.L. Harvey, 932 F.2d 721, 721-22 (8th Cir. 1991) (statutory exemption for ministers did not bar federal wage claim for "'born-again' Christian" class supervisors and monitors who regard teaching as "their personal ministry" and "conduct prayer and counsel" students in "a self-study program that teaches all subjects from a biblical point of view"). The only federal appellate opinion to hold otherwise is the Fourth Circuit's non-precedential ruling in Clapper v. Chesapeake Conf. of Seventh-Day Adventists, 1998 WL 904528 (4th Cir.).<2> The panel considered Clapper's different facts, op. at 14-16, and concluded that even under the rationale of that case, Hosanna-Tabor's defense would fail because "nothing in the record" indicates a similar reliance on the school's teachers "to indoctrinate its faithful into its theology." Id. at 16. The only other cases exempting teachers like Perich from the protection of anti- discrimination laws are a few state court decisions that are either factually distinguishable, see Weishuhn v. Catholic Diocese of Lansing, __ N.W.2d __, 2010 WL 290516 at *3-*4 (Mich. App.) ("no error" in trial court's conclusion "that plaintiff's duties were primarily religious in nature" where she taught at least two and up to four religion classes per day; "was actively involved in . . . planning student masses"; "helped prepare the students for confirmation and reconciliation services"; and "incorporated her religious teachings into her mathematics lessons"), or rely alternatively on materially different state constitutional grounds. See Coulee Catholic Schools v. Labor & Industry Review Comm., 768 N.W.2d 868, 872 (Wis. 2009) (closely divided decision holding that First Amendment "and the Freedom of Conscience Clauses . . . of the Wisconsin Constitution preclude employment discrimination claims under . . . the Wisconsin Fair Employment Act" - which does not contain a religious exemption like that in Title VII and the ADA, id. at 876 n.8 - "for employees whose positions are important and closely linked to the religious mission of a religious organization"). These cases are not "the authoritative decisions of other United States Courts of Appeals that have addressed the issue" resolved in the panel opinion, and thus provide no basis for granting en banc review. F.R.A.P. 35(b)(1)(B). Respectfully submitted, /s/ Dori K. Bernstein P. DAVID LOPEZ DORI K. BERNSTEIN Deputy General Counsel Attorney CAROLYN L. WHEELER EEOC, Office of General Counsel Acting Associate General Counsel 131 M St., N.E., Room 5NW10R Washington, D.C. 20507 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 response conforms to the rules contained in Fed.R.App.P. 32(a)(7) for a brief produced with a proportionally spaced font, and with this Court's order of May 24, 2010. The length of this response is ten pages. Dated: June 7, 2010 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 June 7, 2010, the Response of the Equal Employment Opportunity Commission to the Petition for Rehearing En Banc 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 Sherri C. Strand sstrand@thompsoncoburn.com James W. Erwin jerwin@thompsoncoburn.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> A petition for rehearing en banc is currently pending in Alcazar. <2> The Fourth Circuit discourages reliance on its "unpublished dispositions issued prior to January 1, 2007." 4th Cir. Local R. 32.1. The court in Clapper, moreover, emphasized the non-precedential nature of its decision, 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 at *8.