375 F.3d 951 (9th Cir. 2004), 02-35805, Elvig v. Calvin Presbyterian Church

Docket Nº:02-35805.
Citation:375 F.3d 951
Party Name:Monica L. McDowell ELVIG, Plaintiff-Appellant, v. CALVIN PRESBYTERIAN CHURCH; Will Ackles, Defendants-Appellees.
Case Date:July 23, 2004
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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375 F.3d 951 (9th Cir. 2004)

Monica L. McDowell ELVIG, Plaintiff-Appellant,


CALVIN PRESBYTERIAN CHURCH; Will Ackles, Defendants-Appellees.

No. 02-35805.

United States Court of Appeals, Ninth Circuit

July 23, 2004

Argued and Submitted Oct. 8, 2003.

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Judith A. Lonnquist, Seattle, WA, for the plaintiff-appellant.

Elizabeth K. Reeve, Reeve Shima, P.C., Seattle, WA, for the defendants-appellees.

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Gwynne Skinner and Kathy Barnard, Seattle, WA, for amicus curiae Northwest Women's Law Center.

Paul Berks, Robert L. Byer, and Thomas R. Johnson, Kirkpatrick & Lockhart, LLP, Pittsburgh, PA, for amicus curiae Presbyterian Church (U.S.A.) Synod of Alaska Northwest.

Appeal from the United States District Court for the Western District of Washington; Barbara Jacobs Rothstein, District Judge, Presiding. D.C. No. CV-02-00626-BJR.

Before TROTT, FISHER and GOULD, Circuit Judges.

GOULD, Concurence, TROTT, Dissent.


FISHER, Circuit Judge.

Plaintiff Monica L. McDowell Elvig ("Elvig"), an ordained Presbyterian minister, brought claims under Title VII against her employer Calvin Presbyterian Church, North Puget Sound Presbytery (together the "Church") and her supervisor Pastor Will Ackles (collectively "Defendants"), alleging that she was sexually harassed and retaliated against by the Defendants. The district court dismissed Elvig's complaint, concluding that her Title VII claims fell within the scope of the so-called "ministerial exception" to Title VII. This exception saves Title VII from unconstitutionality under the First Amendment by requiring that Title VII suits be dismissed when they would impermissibly encroach upon the free exercise rights of churches or excessively entangle government and religion.

Applying our decision in Bollard v. California Province of the Society of Jesus, 196 F.3d 940 (9th Cir. 1999), we reverse and remand. Under the ministerial exception, a church's decisions about whom to employ as a minister are protected by the First Amendment. Thus to the extent Elvig's sexual harassment and retaliation claims implicate the Church's ministerial employment decisions, those claims are foreclosed. Nonetheless, Elvig has stated narrower and thus viable sexual harassment and retaliation claims that do not implicate protected employment decisions. Elvig's sexual harassment claim can succeed if she proves that she suffered a hostile work environment and if the Defendants do not prove that Elvig unreasonably failed to take advantage of available measures to prevent and correct that hostile environment. Elvig's retaliation claim can succeed if she proves that she suffered retaliatory harassment--here, in the form of verbal abuse and intimidation--because of her complaints to the Church and the U.S. Equal Employment Opportunity Commission ("EEOC"). Should the Church be found liable on either of these claims, Elvig may recover damages for consequent emotional distress and reputational harm. Within this framework, Elvig's Title VII suit can provide her with redress for sexual harassment and retaliation without attaching liability to ministerial employment decisions protected by the First Amendment.


Because this case comes to us on the pleadings only, we must assume the facts Elvig alleges in her complaint are true. According to her, she served as the Associate Pastor of Calvin Presbyterian Church from December 2000 to December 2001. Shortly after she took this position, defendant Will Ackles, the Church's Pastor, engaged in sexually harassing and intimidating conduct toward her, creating a hostile working environment. Invoking Church procedures, Elvig made a formal complaint

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of sexual harassment against Ackles to the Church, which she says took no action to stop the harassment or alleviate the hostile working environment. For his part, Ackles retaliated against her by relieving her of certain duties, verbally abusing her and otherwise engaging in intimidating behavior. Again, the Church, which knew or should have known of Ackles' improper behavior, failed to act.

Elvig filed a charge of discrimination with the EEOC in October 2001 and received a right-to-sue letter in December 2001. The Church placed her on unpaid leave on December 4, 2001, and the Presbytery voted later that month to terminate its employment relationship with her. The Presbytery subsequently notified Elvig that its Committee on Ministry had decided against permitting Elvig to circulate her church resume, or "personal information form," effectively preventing her from acquiring other pastoral employment in any Presbyterian church in the United States. Elvig then filed a second charge of discrimination with the EEOC alleging unlawful retaliation and, on March 25, 2002, received a second right-to-sue letter.

Elvig timely filed a complaint in federal district court for the Western District of Washington. The complaint asserted federal causes of action for sexual harassment, hostile work environment and retaliation, all in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as well as state law claims for defamation, negligent supervision and violations of the Washington Law Against Discrimination, Wash. Rev.Code §§ 49.60.210 and 49.60.220. Elvig sought back pay, front pay and damages for emotional distress and harm to her reputation. She also sought injunctive relief, including a preliminary injunction requiring the Defendants to permit her to circulate her personal information form.

The district court dismissed Elvig's Title VII suit under Rule 12(b)(6) for failure to state a claim. The court concluded that Elvig's allegations implicated the Church's constitutionally protected right to choose its ministers and were, therefore, barred by the ministerial exception to Title VII. The district court concluded that consideration of Elvig's claims would violate the Church's freedom of religion under the First Amendment's Free Exercise Clause, interjecting the court into ecclesiastical decision-making and involving it in the Church's choice of its ministers. Moreover, the court concluded that reviewing Elvig's retaliation claims would cause government entanglement with the Church's internal governance, in violation of the Establishment Clause. Having dismissed the federal claims, the court declined jurisdiction over the remaining state claims and dismissed them as well. Elvig timely appealed.




In dismissing Elvig's complaint, the district court mistakenly applied Federal Rule of Civil Procedure 12(b)(6). A Rule 12(b)(6) motion must be made before the responsive pleading. Fed.R.Civ.P. 12(b)(6). Here, the Defendants filed their motion to dismiss after filing their answer. Thus, the motion should have been treated as a motion for judgment on the pleadings, pursuant to Rule 12(c) or 12(h)(2). Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980). In this appeal, therefore, we treat the district court's dismissal as a grant of a motion for judgment on the pleadings.

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Id. 1

We review de novo a district court's dismissal of a complaint for judgment on the pleadings. See Weeks v. Bayer, 246 F.3d 1231, 1234 (9th Cir. 2001). At this stage in the proceedings, we accept as true all allegations in Elvig's complaint and treat as false those allegations in the answer that contradict Elvig's allegations. Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1301 & n. 2 (9th Cir. 1992).


The Defendants contend that the First Amendment requires us to dismiss Elvig's claims for want of subject matter jurisdiction. 2 We disagree. Federal question jurisdiction is statutorily established, giving district courts "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Elvig brings federal claims under 42 U.S.C. § 2000e. A Rule 12 judgment on the pleadings is not equivalent to a dismissal for failure to establish federal question jurisdiction under 28 U.S.C. § 1331, and a judgment on the pleadings may be appropriate even when federal question jurisdiction is established. As we explained in Bollard, "[a]ny non-frivolous assertion of a federal claim suffices to establish federal question jurisdiction, even if that claim is later dismissed on the merits." Bollard, 196 F.3d at 951; see also Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946) ("Jurisdiction ... is not defeated ... by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover.... [T]he failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction."). We therefore hold that the ministerial exception does not require us to dismiss Elvig's claims for lack of subject matter jurisdiction.


In recognition of the tension between the statutory protection Title VII provides to victims of sexual harassment and the constitutional protection religious institutions enjoy under the First Amendment, courts have crafted a "ministerial exception" to Title VII "in order to insulate the relationship between a religious organization and its ministers from constitutionally impermissible interference by the government." Bollard, 196 F.3d at 945; see, e.g., EEOC v. Roman Catholic Diocese of Raleigh, N.C., 213 F.3d 795, 800-01 (4th Cir. 2000). For this Circuit, Bollard establishes

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the exception's parameters. As the present case demonstrates, applying the principles set forth in Bollard requires a nuanced analysis in order to avoid trenching on religious freedom without entirely eviscerating Congress' "otherwise fully applicable command[]" to protect employees from sex discrimination--even employees of religious organizations. Bollard, 196 F.3d at 944; see also id. at 948 ("[T]he...

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