Alicea-Hernandez v. Catholic Bishop of Chicago, 02-2280.

• Citation: 320 F.3d 698
• Decision Date: 21 February 2003
• Docket Number: No. 02-2280.,02-2280.
• Parties: Gloria ALICEA-HERNANDEZ, Plaintiff-Appellant, v. The CATHOLIC BISHOP OF CHICAGO, a corporation sole, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

320 F.3d 698

Gloria ALICEA-HERNANDEZ, Plaintiff-Appellant, v. The CATHOLIC BISHOP OF CHICAGO, a corporation sole, Defendant-Appellee.

No. 02-2280.

United States Court of Appeals, Seventh Circuit.

Argued December 12, 2002.

Decided February 21, 2003.

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Thomas C. Crooks (argued), Chicago, IL, for plaintiff-appellant.

Jane F. Anderson (argued), Chicago, IL, for defendant-appellee.

Before FLAUM, Chief Judge, and MANION and ROVNER, Circuit Judges.

FLAUM, Chief Judge.

Gloria Alicea-Hernandez, an Hispanic female, claims that her former employer, the Catholic Bishop of Chicago ("the Church"), discriminated against her based on her national origin and gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The Church argued to the district court that the religious clauses of the First Amendment preclude federal subject matter jurisdiction over these claims because both the nature of the claims and Alicea-Hernandez's unique responsibilities at the Church would require the court to engage in excessive entanglement in matters of Church policy. The district court accepted these arguments and dismissed the suit pursuant to Fed.R.Civ.P. 12(b)(1). Alicea-Hernandez appeals. Although we disagree with the district court's analysis regarding the characterization of her claims, we affirm based on the position Alicea-Hernandez held with the Church.

I. Background

In March 2000 Alicea-Hernandez was hired by the Archdiocese of Chicago to fill the post of Hispanic Communications Manager. Her duties included: composing media releases for the Hispanic community; composing correspondence for the Cardinal; developing a working relationship with the Hispanic media and parishes in the Hispanic community to promote Church activities; developing a working relationship with the Hispanic community to enhance community involvement; composing articles for Church publications; and translating Church materials into Spanish. Alicea-Hernandez continued in her employment with the Church until December of that year, when she resigned.

Alicea-Hernandez claims that while working for the Church she was discriminated against on the basis of her gender and national origin as well as retaliated against for filing an Equal Employment Opportunity Commission charge. She bases these claims on allegations of poor office conditions, the Church's attempts to prevent her from rectifying those conditions, exclusion from management meetings and communications, denial of resources necessary for her to perform her job, and constructive discharge and subsequent replacement by a less qualified male who received a higher salary and a more significant title for the same position.

While all this discrimination was allegedly occurring, Alicea-Hernandez was actively taking issue with the Church on its relations with the Hispanic community. In various emails and memoranda Alicea-Hernandez continually and sharply criticized the Church with regard to this aspect of Church's mission.

During her employment and after, Alicea-Hernandez filed several charges at the Equal Employment Opportunity Commission. On July 31, 2001, the Commission issued a right-to-sue letter. Alicea-Hernandez subsequently brought suit. The district court granted the Church's 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. Alicea-Hernandez now appeals that ruling.

II. Discussion

Before reaching the merits we must address the issue of waiver. The Church argues that Alicea-Hernandez has waived any defense to the charge of a lack of subject matter jurisdiction by not responding to its motion to dismiss at the district court level. The Church further argues that Alicea-Hernandez has waived any response to the waiver charge by not addressing it in her opening brief on appeal. Alicea-Hernandez appropriately points out the lack of merit of the second argument. We do not require an appellant to anticipate and preemptively address all defenses that an appellee might raise. As for whether Alicea-Hernandez has waived any argument on subject matter jurisdiction, we are faced with a somewhat unusual procedural background. While it is true that Alicea-Hernandez did not respond to the Church's motion to dismiss and the district court granted that motion, she subsequently filed a motion to reconsider to which the Church did not respond. Any waiver arguments the Church had could have been made in response to the motion to reconsider. Furthermore, the district court decided both the motion to dismiss and the motion to reconsider without reference to waiver. In granting the motion to dismiss the court gave full consideration to the questions at issue here, and in denying the motion to reconsider the court simply noted that it had already considered all of Alicea-Hernandez's arguments the first time around. Added to this, we have the pro se status of Alicea-Hernandez at the time the motion to dismiss was filed¹ and the confusion over the hearing that was scheduled for the motion on April 16, 2002.² Given this procedural journey, the district court's review of the issues, and the fact that we may affirm on the merits, for the purposes of this opinion we assume, without deciding, that Alicea-Hernandez has not waived her arguments in support of subject matter jurisdiction.

Moving on to the merits, we review de novo the district court's dismissal of a complaint under Rule 12(b)(1). Rothrock v. United States, 62 F.3d 196, 198 (7th Cir.1995). When considering a motion to dismiss for lack of subject matter jurisdiction, a court must accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of the plaintiff. See Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th Cir.1999). The court may look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists. Id.

The Church argues that subject matter jurisdiction is lacking for two reasons, both based on the First Amendment. The first argument is that the nature of Alicea-Hernandez's claims requires the court to delve into Church policy. If the claims did require such inquiry, any decision by this court might contravene the First Amendment prohibition against excessive entanglement in matters of church policy. Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976). But the Church has misconstrued Alicea-Hernandez's claims. The Church tries to characterize the claims as based solely on Alicea-Hernandez's disagreements with the Church about how it deals with the Hispanic community. The Church points to numerous emails and memoranda in which Alicea-Hernandez criticizes the Church's policies toward the Hispanic community. The Church does not however point to anything in the complaint suggesting that this is the basis of her claim. Alicea-Hernandez's complaint states that she is seeking relief based on the ill-treatment she received as an employee based on her gender and national origin. Her pro se complaint specifically states:

I was subjected to prolonged humiliation and emotional stress of working under unequal and unfair conditions of employment; was excluded from management meetings, training and information required for me to perform my duties; was ordered evicted from the premises and replaced by a male Hispanic with less competence and experience in Hispanic communication.

Nothing in the complaint references Alicea-Hernandez's criticisms of the Church's Hispanic ministry. Alicea-Hernandez is seeking remedy for the discrimination she allegedly suffered at work, and the Appellee cannot re-characterize her claim. While it does appear that Alicea-Hernandez was an outspoken critic of the Church's relations with the Hispanic community, this does not preclude her from bringing suit for alleged unrelated discrimination. If this case had progressed to the summary judgment stage or to trial, the Church might very well have claimed as a defense that her criticism of the Church's relations with the Hispanic community was the reason it treated her the way it did; but such a defense is not determinative at the motion to dismiss stage, and the Church never made such a claim.³

In this context the Church also spends a great deal of time talking about the merits of Alicea-Hernandez's claims. However the relevant question here is whether the federal courts have subject matter jurisdiction over the case. If we do not have subject matter jurisdiction, then we are not allowed to reach the merits. Our initial analysis is therefore limited to the narrow question of whether Alicea-Hernandez's discrimination claims preclude the federal courts from examining this case without violating the First Amendment. We conclude that they do not.

We turn next to the argument that Alicea-Hernandez's particular position bars the federal courts from deciding her Title VII claims. Here the Church has the stronger argument. As the Fifth Circuit first articulated in McClure v. The Salvation Army, 460 F.2d 553, 560 (5th Cir. 1972), "application of the provisions of Title VII to the employment relationship existing between ... a church and its minister would result in an encroachment by the state into an area of religious freedom which it is forbidden to enter by the principles of the free exercise clause of the First Amendment." This rule,...