GREGORY K. FRIZZELL, District Judge.
This matter comes before the court upon the Motion for Summary Judgment (Dkt.
A motion for summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Federal Rule of Civil Procedure 56(a) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998). A court must examine the factual record in the light most favorable to the party opposing summary judgment. Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir.1995).
When the moving party has carried its burden, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts . . . Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citations omitted). "An issue is `genuine' if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way. An issue of fact is `material' if under the substantive law it is essential to the proper disposition of the claim." Adler, 144 F.3d at 670. In essence, the inquiry for the court is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Defendant St. Pius X Parish (the "Parish") is a not-for-profit Catholic parish of the Roman Catholic Diocese of Tulsa, an ecclesiastical association. Defendant St. Pius X ("St. Pius") is a Catholic Church which operates St. Pius X School. Defendant Matthew Vereecke ("Vereecke") was the principal of St. Pius X School from approximately July 1, 2007, until June 30, 2010. Fr. Michael Knipe ("Fr. Knipe") is a Roman Catholic Priest who served as pastor of St. Pius from January 2005 until June 2011.
Plaintiff Martha Lou Braun ("Braun") was a fifth grade teacher at St. Pius during the 2007-2008 school year. She was teaching pursuant to a one-year, renewable contract, and had taught at St. Pius since 1988. Braun is not Catholic, she is Episcopalian.
In approximately April of each year, St. Pius' principal would recommend to the pastor whether or not a teacher's contract should be renewed. The pastor would then approve or reject the principal's recommendations. In April of 2008, Vereecke recommended to Fr. Knipe that Braun's contract not be renewed, and Fr. Knipe approved that recommendation. On April 25, 2008, Vereecke informed Braun her contract would not be renewed. Braun was 63 years old at the time.
Braun brings three claims for relief. In her first claim she alleges that St. Pius discriminated against her based on her age in violation of the Age Discrimination in Employment Act. In her second claim Braun alleges that St. Pius discriminated against her based on her religion in violation of Title VII of the Civil Rights Act of
The defendants argue they are entitled to summary judgment on Braun's religious discrimination claim because religious educational institutions may legally discriminate based on religion in the employment context. Braun concedes Section 702(a) of Title VII allows religious educational institutions to discriminate based upon religious grounds: "[t]his subchapter shall not apply . . . to 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 by such corporation, association, educational institution, or society of its activities." 42 U.S.C.A. § 2000e-1(a). The Title VII exemption for "work connected with the carrying on . . . of its activities" "allows religious groups to discriminate based on religion with respect to the employment of individuals [who] perform work connected with their religious or secular activities." Little v. St. Mary Magdalene Parish, 739 F.Supp. 1003, 1005 (W.D.Pa.1990); Corp. of Presiding Bishop v. Amos, 483 U.S. 327, 107 S.Ct. 2862, 97 L.Ed.2d 273 (1987). Because the exemption applies to employees with religious or secular duties, the court need not determine whether Braun's duties were religious. See Id. Braun argues St. Pius does not meet the definition of a religious organization or religious educational institution, and therefore does not benefit from the exemption. Both parties cite LeBoon v. Lancaster Jewish Cmty. Ctr. Assoc., 503 F.3d 217, 226 (3rd Cir.2007) for a list of factors courts often apply to judge whether an organization fits within the exemption.
Id. "[N]ot all factors will be relevant in all cases, and the weight given each factor may vary from case to case." Id. at 227.
St. Pius X School is operated by St. Pius X Catholic Church, a non-profit ecclesiastical organization organized under the Canon Law of the Roman Catholic Church. (Dkt. #47-1, ¶ 3). The school teaches many secular subjects, but also requires religious instruction for all students. Fr. Knipe, the pastor of the parish, supervises some school decisions such as whether or not to renew teachers' contracts. The St. Pius student handbook describes the school as "first and foremost a Catholic school [that] embraces the Catholic traditions of mass, personal prayer and stewardship." (Dkt. #47-6, p. 2). The handbook lists students' responsibilities, the first of which is: "[t]o actively show your faith by: respecting the Eucharist, participating in the prayer and social life of the church school community, and treating classmates, teachers and visitors with the
Braun argues that St. Pius is not an "agent" of the Roman Catholic Diocese of Tulsa
Because St. Pius X School is operated by St. Pius Church, and because the factors above demonstrate St. Pius X School is a religious educational institution, the court concludes defendants qualify for the Title VII exemption for religious institutions. Defendants' motion for summary judgment on Braun's claim of religious discrimination is granted.
St. Pius contends the "ministerial exemption" insulates it from all Title VII discrimination suits, including Braun's claims for age discrimination. "The ministerial exception is judicial shorthand 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 out-weighed by a church's constitutional right of autonomy in its own domain." EEOC v. Catholic Univ. of Am., 83 F.3d 455, 467 (D.C.1996). An employee need not be ordained to qualify for the ministerial exemption. Rayburn v. Gen. Conf. of Seventh-Day Adventists, 772 F.2d 1164, 1168 (4th Cir.1985). "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.'" Id. at 1169. "This approach necessarily requires a court to determine whether a position is important to the spiritual and pastoral mission of the church." Id.
A number of courts have held a principal of a parochial school fits within the ministerial exemption. See, e.g., Sabatino v. St. Aloysius Parish, 288 N.J.Super. 233, 672 A.2d 217 (N.J.Super.Ct.App.Div.1996). Defendants cite no authority, however, for the argument that a teacher at a parochial school is a minister, or qualifies for the ministerial exemption. Defendants conceded at the October 13, 2011, hearing that for Braun to benefit from the ministerial exemption, the court would need to extend the exemption beyond its current bounds. At the time of this order, "the overwhelming majority of courts that have considered the issue have held that parochial school teachers . . . who teach primarily secular subjects, do not classify as ministerial employees for purposes of the exception." EEOC v. Hosanna-Tabor Evangelical Lutheran Church and School, 597 F.3d 769, 778-79 (6th Cir.2010) (string citation omitted), cert granted, ___ U.S. ___, 131 S.Ct. 1783, 179 L.Ed.2d 653 (2011).
The parties have filed cross motions for summary judgment on Braun's Title VII and Burk tort
By establishing a prima facie case, "the plaintiff raises a rebuttable presumption that the defendant unlawfully discriminated against her." EEOC, 220 F.3d at 1191. "The burden of production then shifts to the defendant who must articulate a legitimate, nondiscriminatory reason for the adverse employment action suffered by the plaintiff." Id. "If the defendant is able to articulate a facially nondiscriminatory reason for the adverse employment action, the plaintiff can avoid summary judgment only if she can show that her `[membership in a protected class] was a determinative factor in the defendant's employment decision, or show the defendant's explanation for its action was merely pretext.'" Id. (quoting Atchley v. Nordam Group, Inc., 180 F.3d 1143, 1148-49 (10th Cir.1999)). Braun concedes defendants have stated a legitimate, nondiscriminatory reason for not renewing Braun's contract, but argues the reason for the decision is pretextual. (Dkt. #48, p. 25).
To demonstrate pretext, the plaintiff must "show that a genuine dispute of material fact exists as to whether the defendant's articulated reason was pretextual." Perry v. Woodward, 199 F.3d 1126, 1135 (10th Cir.1999).
There is no genuine dispute that Fr. Knipe was responsible for the decision to accept or reject a recommendation not to renew a teacher's contract. (Dkt. #48-5, p. 3). Fr. Knipe agreed that he exercised veto power over a recommendation not to renew a contract. Id. Even Vereecke concedes that he merely recommended non-renewal, he could not decide not to renew a contract on his own. (Dkt. #47-2, p. 29). Fr. Knipe admits that "had Mr. Vereecke not made the recommendation for Ms. Braun's non-renewal then she would have been renewed." (Dkt. #48-5, p. 14). Braun argues that therefore Vereecke is a decision maker because he recommended non-renewal, and without his recommendation non-renewal would not have occurred. Fr. Knipe is clear, however, that his decision not to renew a contract "comes into effect with the input that is provided for that decision. At the same time, the decision was independent in the sense that as the pastor I am ultimately responsible for deciding to accept or not to accept." Id.
St. Pius states that Braun's contract was not renewed due to concerns over five incidents that came to light in 2007-2008. The first incident involved an alleged statement Braun made to the parent of a special needs child that the child needed to have her medication changed. A dispute exists as to exactly what Braun said, but there is no dispute that Vereecke cautioned Braun about offering medical opinions in the written evaluation he gave to Braun in January, 2008. Vereecke wrote: "I have no problem with suggesting that a parent should seek tutoring help or begin the assessment process, but it is imperative (both legally and in terms of our community atmosphere) that you don't attempt to offer a pre-evaluation diagnosis." (Dkt. #47-7, p. 6). In February, 2008, a parent, Todd Goldsmith,
The second incident St. Pius identifies is an alleged failure by Braun to follow through with a development plan for a student. Scott Garcia, the child's parent, reported that Braun established a plan to assist Garcia's son with spelling and vocabulary by sending home a list of words on Fridays in advance of the next week's lesson. This allowed the Garcias to make flash cards in order to practice for the spelling and vocabulary tests the following week. Garcia avers in an affidavit that Braun followed the plan "for a few weeks in accordance with the plan, but then she stopped providing the spelling/vocabulary words." (Dkt. # 47-9, p. 3). Braun disputes how many times she failed to provide the spelling/vocabulary words. Garcia believes that, as a result of Braun's failure to follow the plan, his son did poorly on a spelling/vocabulary test on February 29, 2008. Id. That same day, Braun failed to follow the plan and provide spelling/vocabulary words in advance. Garcia called Vereecke to complain, and Vereecke personally retrieved the spelling/vocabulary words from Braun and delivered the list of words to Garcia at a basketball tournament. By the time of Braun's evaluation on March 17, 2008, however, Vereecke stated that the situation with the Garcia child was "going well." (Dkt. # 47-7, p. 7).
The third incident St. Pius identifies is Braun's failure to utilize, and require children to utilize, organizational and communication tools. Vereecke warned Braun in her March evaluation: "For example, I know that some parents have mentioned concerns about the way homework for the week is presented; instead of merely handing out the sheet (which is indeed sufficient for some students) you could have them staple the sheet into their planner." Id. On March 4, 2008, Vereecke met with the McCorkles, who had a child in Braun's class. The McCorkles advised Vereecke that Braun was not requiring the children in her class to use the daily planner they had been required to purchase. (Dkt. #47-11). The McCorkles also informed Vereecke that Braun did not respond to their emails or phone calls. The McCorkles described Braun as "dismissive and uncooperative" when they actually spoke with Braun regarding the daily planner. Following the meeting with Vereecke, the McCorkles noted "sporadic improvement," but advised Vereecke that Braun's efforts were still not what they desired and requested from her. The McCorkles believe the non-renewal of Braun's teaching contract was justified.
The fourth incident St. Pius identifies is the complaint received in April, 2008, from a parent, Nita Foley ("Foley"). Foley previously had three children go through Braun's class. The Foleys were long-time members of the St. Pius X Parish. Foley informed Vereecke that the reason their fourth child left St. Pius was because they did not wish to have him taught by Braun. Vereecke says his discussion with Foley was significant because Foley previously had children in Braun's class and was so concerned about the fourth child having Braun as a teacher that she pulled her fourth child from St. Pius. Braun argues the Foley child left because he would have had to repeat the fourth grade at St. Pius, but the statement she offers in support is inadmissible hearsay. (Dkt. # 48-4, p. 3). The hearsay statement is directly rebutted by Foley's affidavit in which she states her
The fifth incident St. Pius identifies is the complaint of parents Michael and Cheri Hatfield in April, 2008. The Hatfields were members of the parish. They had an older child who had previously been taught by Braun, and a child in fourth grade who was scheduled to be in fifth grade during the 2008-2009 school year. The Hatfields told Vereecke they had concerns about their younger child being taught by Braun and were considering moving their child to another school in order to avoid having Braun as a teacher. Braun states she was not informed of the complaint. There is no genuine dispute as to the substance of the complaint.
Defendants argue the decision not to renew Braun's contract benefits from a strong inference that the decision was not pretextual under the "same actor" inference. "[W]here `the employee was hired and fired by the same person within a relatively short time span,' there is `a strong inference that the employer's stated reason for acting against the employee is not pretextual.'" Antonio v. Sygma Network, Inc., 458 F.3d 1177, 1183 (10th Cir. 2006) (citations omitted). The same actor inference has been applied when the hiring and firing occurred up to four years apart. Id. at fn.4 (string citation omitted). Even if the same actor inference applies, "`[t]he plaintiff still has the opportunity to present countervailing evidence of pretext,' ... [the] `same actor' evidence gives rise to an inference, rather than a presumption, that no discriminatory animus motivated the employer's actions.'" Id. at 1183 (citation omitted). At St. Pius, when the principal recommended that a teacher's contract be renewed, Fr. Knipe would rely on the recommendation, but would make an independent decision. (Dkt. #48-5, p. 13). Fr. Knipe signed teacher contracts on behalf of St. Pius when they were renewed. (Dkt. # 48-5, p. 2-3; Dkt. #47-4, p. 8).
Braun has not presented evidence of age discrimination with regard to Fr. Knipe. Nonetheless, she argues that principal Vereecke's alleged acts of age discrimination should be imputed to St. Pius. This theory of liability is known as "subordinate bias," "cat's paw," or "rubber stamp" liability. When a plaintiff's "pretext argument depends in part on a subordinate bias theory, [the plaintiff] must establish a genuine issue of material fact as to whether [the subordinate's] bias translated into discriminatory actions that caused [the plaintiff's] termination." EEOC v. BCI Coca-Cola Bottling Co., 450 F.3d 476, 490 (10th Cir.2006). "To prevail on a subordinate bias claim, a plaintiff must establish more than mere `influence' or `input' in the decisionmaking process. Rather, the issue is whether the biased subordinate's discriminatory reports, recommendation, or other actions caused the adverse employment action." Id. at 487. "[A]n employer can avoid liability by conducting an independent investigation of the allegations against an employee ... In that event, the employer has taken care not to rely exclusively on the say-so of the biased subordinate, and the causal link is defeated." Id. at 488.
Braun presents no evidence that Fr. Knipe was a mere rubber stamp or cat's paw. On the contrary, Fr. Knipe overruled several of Vereecke's recommendations not to renew teacher contracts. Moreover, Fr. Knipe states that although he took Vereecke's input into account, the decision was independent. (Dkt. # 48-5, p. 14). Therefore, Braun has failed to show that Vereecke's alleged bias can be imputed to St. Pius on a theory of subordinate bias liability.
Based on the undisputed facts, the court holds Braun has failed to raise a genuine dispute as to whether the stated reasons for not renewing Braun's contract were false or pretextual. The defendants are entitled to a strong inference that Fr. Knipe did not act discriminatorily. The court holds that Fr. Knipe was the ultimate decision-maker and no reasonable factfinder could rationally find that the reasons provided for the non-renewal of Braun's contract were pretext for age discrimination. Defendants' motion for summary judgment is granted on Braun's first and third claims for relief, and Braun's motion for summary judgment is denied.
In the briefing on these motions, and at the October 13, 2011, hearing, Braun argued that: "the Plaintiff has always maintained there were two decision-makers in Braun's non-renewal. Vereecke made the formal recommendation, which was based on age. Knipe chose not to veto it, and this decision resulted from the fact that Braun was not Catholic and not a member of the Parish." (Dkt. # 61, p. 10). In the event the court has erred in concluding that Fr. Knipe was the ultimate decision-maker, the court enters the following alternative holding.
Braun argues that even if the facts underlying the five incidents discussed above are true, she has demonstrated pretext because Vereecke treated younger teachers differently than Braun. A plaintiff may demonstrate pretext by showing disparate application of either written or unwritten policies of the employer. Kendrick, 220 F.3d at 1230. "A plaintiff who wishes to show that the company acted contrary to an unwritten policy or to company practice often does so by
Braun argues that Vereecke deviated from the written procedures for teacher evaluation. The St. Pius handbook for teachers states teachers should be evaluated twice yearly and provided with the results of those evaluations. (Dkt. # 44-18, p. 20). Vereecke complied with the handbook by providing Braun with the results of his two evaluations. There is no requirement in the handbook that the principal meet with teachers personally or offer them an opportunity to improve prior to deciding not to renew the teacher's contract.
The student handbook at St. Pius provides a formalized grievance procedure for when a parent or student "disagrees with a ruling by a teacher." (Dkt. #48-21, p. 28). The formalized grievance procedure outlined in the student handbook is inapplicable to Braun because none of the parental complaints against her involved a disagreement with any "ruling" she had made. The student handbook further specifies that "[w]hen a policy or contract is violated, a written memo will be given to the teacher." Id. at 21. To the extent Braun was alleged to have violated a school policy regarding how to discuss medical conditions with parents, she was given written notice of that alleged violation in her teacher evaluation though no additional written memo was prepared. The remaining four complaints against Braun relate to her job performance and communication skills, not to any violation of a specific school policy or her teaching contract. Therefore, under the terms of the teacher handbook, no written memo was required.
Braun also argues that she can demonstrate pretext because Vereecke deviated from his own unwritten policy of how to deal with parent complaints. When asked to describe his process of dealing with parent complaints, Vereecke stated: "[g]enerally—and I have to speak generally here. Again, it would depend on the parent ... I would usually receive the e-mail or phone call, I would have an informal conversation with the teacher to discuss what the parent had told me, and follow up from there with a formal meeting if I felt it was necessary." (Dkt. # 48-3, p. 6).
With regard to the first incident involving Braun's comments about student medical conditions, Vereecke communicated his concerns to Braun in her written evaluation, and spoke personally with her about the Goldsmiths' concerns. With regard to the second incident involving Braun's failure to send home vocabulary words with a student, Vereecke personally picked up the words from Braun but there is a dispute of fact as to whether he verbalized any criticism of Braun for failing to provide the student with the vocabulary words. With regard to the third incident involving communication with parents and failure to require students to use their planners, Vereecke formally notified Braun of the planner issue in her written evaluation. While disputes exist as to whether Vereecke spoke to Braun personally about the first three incidents,
With regard to the fourth and fifth incidents involving parents who sought to avoid having their children taught by Braun, there is no evidence in the record of any procedure, formal or informal, for dealing with complaints against a teacher when the complaining individuals do not currently have a student in the teacher's class. Braun argues that she was treated differently than other, similarly situated teachers. The relevant comparison, however, is not between Braun and all other teachers at St. Pius, but between Braun and other teachers who were subject to complaints of "comparable seriousness." Kendrick, 220 F.3d at 1230. Braun has presented no evidence that any other teacher was subject to parent complaints of the severity and frequency she was. Braun was the only teacher about whom parents in the St. Pius X Parish complained with such intensity that they threatened to (and in one case, actually did) remove their children from St. Pius rather than have Braun teach them. These severe parent complaints about Braun occurred not once, but twice near the end of the 2007-2008 school year.
The complaints against Braun were unique in scope and consequence. They were unique in scope because these parents did not merely cite a single disagreement with Braun; these parents did not want their children to have Braun as a teacher at all. The complaints were unique in consequence because these parents took or threatened to take the extraordinary step of removing their children from St. Pius to avoid having Braun as a teacher. Because the complaints against Braun were uniquely severe, there is no valid comparison between Braun and the other teachers on staff at St. Pius. Because
Braun argues she was treated differently than three other teachers: Donatucci, Roberson, and Blum (Dkt. #48, p. 26). Braun cannot demonstrate disparate treatment, however, because Vereecke recommended that Donatucci, Roberson, and Blum's contracts not be renewed as well. (Dkt. # 47-2, p. 29-30; 49-4, p. 39). Donatucci, Roberson, and Blum were all Catholic and members of the Parish, and Fr. Knipe overruled Vereecke's recommendation not to renew their contracts. Because of the uniquely serious complaints against Braun, and because Vereecke recommended non-renewal for all three of Braun's purported comparators, the court holds Braun has failed to show a difference in treatment by Vereecke between similarly situated teachers subject to complaints of comparable seriousness.
When analyzing the motions for summary judgment, the court notes that Braun has produced no evidence that Vereecke or Fr. Knipe ever made inappropriate comments, either expressly or impliedly, about Braun's age or that they evaluated her capabilities based upon her age. Braun has produced no direct evidence of age discrimination, or of discriminatory attitudes regarding age by Vereecke or Fr. Knipe.
In the alternative to its ruling set forth in Section V, above, this court holds that in light of the uniquely serious parent complaints about Braun, the problem areas in her teaching identified by Vereecke, and the undisputed facts outlined above, no reasonable factfinder could rationally find that St. Pius' reasons for not renewing Braun's contract were pretextual.
WHEREFORE, for the reasons set forth above, the defendants' Motion for Summary Judgment is granted, and the plaintiff's Motion for Summary Judgment is denied.
Counsel neglects to mention that Donatucci was only the student's home room teacher, and the student had six other teachers for other subjects that year. Moreover, Vereecke makes clear the student did leave not due to teacher fault, the student left because the student's parents were given a choice to either withdraw the student voluntarily, or be kicked out. (Dkt. #61-3, p. 7). No reasonable reading of the deposition can lead to the tortured conclusion that Donatucci and Braun were subject to complaints of similar severity.
