Coulee Catholic v. Labor and Industry, No. 2007AP496.

CourtCourt of Appeals of Wisconsin
Writing for the CourtVergeront
Citation2008 WI App 68,752 N.W.2d 341
Decision Date17 April 2008
Docket NumberNo. 2007AP496.
PartiesCOULEE CATHOLIC SCHOOLS, Petitioner-Appellant,<SMALL><SUP>†</SUP></SMALL> v. LABOR AND INDUSTRY REVIEW COMMISSION, DEPARTMENT OF WORKFORCE DEVELOPMENT and Wendy Ostlund, Respondents-Respondents.
752 N.W.2d 341
2008 WI App 68
COULEE CATHOLIC SCHOOLS,

[752 N.W.2d 342]

Petitioner-Appellant,
v.
LABOR AND INDUSTRY REVIEW COMMISSION, DEPARTMENT OF WORKFORCE DEVELOPMENT and Wendy Ostlund, Respondents-Respondents.
No. 2007AP496.
Court of Appeals of Wisconsin.
Submitted on Briefs August 7, 2007.
Opinion Filed April 17, 2008.

[752 N.W.2d 343]

On behalf of the petitioner-appellant, the cause was submitted on the briefs of James G. Birnbaum, Ross A. Seymour, Jessica T. Kirchner of Birnbaum, Seymour, Kirchner & Birnbaum, LLP, La Crosse.

On behalf of the respondent-respondent, Labor and Industry Review Commission, the cause was submitted on the brief of David C. Rice, assistant attorney general, and J.B. Van Hollen, attorney general.

On behalf of the respondent-respondent, Wendy Ostlund, the cause was submitted on the brief of Dawn Marie Harris and Ryan D. Olson of O'Flaherty Heim Egan, Ltd., La Crosse.

Before HIGGINBOTHAM, P.J., VERGERONT and LUNDSTEN, JJ.

¶ 1 VERGERONT, J.


The issue on this appeal is whether the "ministerial exception," grounded in the First Amendment, precludes adjudication of Wendy Ostlund's age discrimination complaint filed against Coulee Catholic Schools (CCS). The Labor and Industry Review Commission (LIRC) concluded it does not, and the circuit court affirmed. We conclude that the ministerial exception does not apply to Ostlund's position as a first-grade teacher. CCS does not argue that there is any other First Amendment bar to adjudicating Ostlund's claim. We therefore affirm.

BACKGROUND

¶ 2 Ostlund was employed as a first-grade teacher at St. Patrick's Elementary School from 1974 until June 2002. St. Patrick's is part of the Coulee Catholic Schools (CCS) Association and is owned and operated by the Roman Catholic Diocese of La Crosse, Wisconsin. In March 2002, when Ostlund was fifty-three, CCS notified Ostlund that her employment contract would not be extended for the 2002-03 school year. Ostlund filed a complaint with the Equal Rights Division of the Wisconsin Department of Workforce Development alleging age discrimination under the Wisconsin Fair Employment Act (WFEA), WIS. STAT. §§ 111.31-111.395 (2005-06).1

¶ 3 CCS moved to dismiss the complaint on the ground that Ostlund's position was "ministerial" under Jocz v. LIRC, 196

752 N.W.2d 344

Wis.2d 273, 538 N.W.2d 588 (Ct.App.1995), and therefore adjudication of her complaint would infringe on CCS's First Amendment right to the free exercise of religion. CCS also asserted that the reason Ostlund's contract was not renewed was that there was a reduced need for staff because of a school closing. Ostlund had been selected for nonrenewal, CCS stated, because she had a degree in physical education, not elementary education, and she was not certified to teach first grade.

¶ 4 An administrative law judge (ALJ) presided at an evidentiary hearing on CCS's motion. The ALJ's written decision contained a number of findings of fact, which included the following. Ostlund was a Catholic and a member of St. Patrick's Parish; she was not a member of a religious order. CCS did not require its elementary school teachers to be members of any religious order or members of the Catholic Church. It did require teachers to have the diocese's basic and advanced certifications in religious education, which involved their attending instruction in the Catholic faith and how to teach the Catholic faith. Ostlund maintained these certifications. Ostlund's job description contained four main components—religious atmosphere, teaching responsibilities, supervising responsibilities, and professional responsibilities—with detailed responsibilities under each. The only responsibility that specifically mentioned religion in the teaching, supervising, and professional components was the professional responsibility to "earn and maintain religious certification."2

¶ 5 With respect to Ostlund's duties the ALJ determined:

Ms. Ostlund's primary duty was to instruct her students in a core of disciplines, consisting of reading, social studies, science, math, handwriting and religion. Although she taught religion for about one half-hour four times per week, led brief prayers about twice per day, at times made references to religious symbols as aids when teaching core subjects other than religion, occasionally incorporated a religious theme into her social studies class, prepared her students several times per year to present a liturgy and supervised them during their attendance at weekly liturgies, all these religiously-related activities did not constitute her primary duty.

The ALJ also found that Ostlund's loss of employment was not caused by any failure on her part to abide by the religious principles of CCS.

¶ 6 The ALJ concluded that Ostlund's position was not ministerial within the meaning of Jocz. Therefore, the ALJ decided, adjudication of her complaint would not violate CCS's First Amendment rights and the Department had subject matter jurisdiction over her complaint.

¶ 7 CCS appealed to LIRC. LIRC adopted the findings and conclusions of the ALJ. LIRC's memorandum opinion explained

752 N.W.2d 345

why it concluded Ostlund's position was not ministerial under Jocz. The opinion also stated that two additional inquiries were relevant: (1) whether this case involved ongoing involvement by the agency, and (2) whether adjudication would implicate any religious doctrine. LIRC answered both these questions in the negative.

¶ 8 CCS petitioned for review of LIRC's decision in the circuit court and the circuit court affirmed. The circuit court concluded that LIRC had subject matter jurisdiction and the issue was whether LIRC was precluded from adjudicating Ostlund's complaint under the First Amendment. Contrary to LIRC's position, the circuit court concluded that under Jocz the only inquiry was whether the position was ministerial and it was not permissible to inquire into the nature of Ostlund's claim or CCS's response. However, the circuit court agreed with LIRC that Ostlund's position was not ministerial and affirmed on that ground.

DISCUSSION

¶ 9 On appeal CCS contends that LIRC erred in concluding that Ostlund's position was not ministerial because it focused on the time Ostlund spent teaching secular subjects compared to teaching religion and attending mass. In doing so, argues CCS, LIRC overlooked the following evidence: the primary mission of Catholic schools is to teach the Catholic faith; the role of Catholic schools is essential to carrying out the pastoral mission of the Roman Catholic Church; Ostlund was required as a contract condition of her employment to model and support Catholic doctrine and she believed she did so; and Ostlund incorporated Catholic values into all the subjects she taught. Because Ostlund's position is ministerial, CCS contends, the Department has no jurisdiction, no further inquiry is permitted into the reasons for Ostlund's termination, and the Department must dismiss her complaint.

¶ 10 Ostlund and LIRC respond that her position is not ministerial. In addition, in disagreement with the circuit court, they contend that the nature of Ostlund's claim and CCS's response are proper considerations in deciding whether adjudication of the complaint would infringe on CCS's First Amendment rights.

¶ 11 On an appeal of a circuit court decision reviewing an agency decision, we review the decision of the agency, not that of the circuit court. Jocz, 196 Wis.2d at 289-90, 538 N.W.2d 588. We review de novo an administrative agency's conclusions of law regarding the scope of its own powers or subject matter jurisdiction to decide an issue. Id. at 291, 538 N.W.2d 588. We also review de novo an agency's conclusions of constitutional law. See id. at 304, 538 N.W.2d 588. In our review, we accept the findings of fact made by the agency if they are supported by substantial evidence in the record, and we do not substitute our judgment for that of the agency as to credibility or the weight of the evidence on any disputed finding. Id.

I. Subject Matter Jurisdiction

¶ 12 CCS appears to frame the underlying issue as one of the Department's jurisdiction. However, as both LIRC and the circuit court correctly concluded, in Jocz we held that the free exercise clause of the First Amendment3 does not "categorically deprive [] the Department of

752 N.W.2d 346

subject matter jurisdiction to review and investigate whether evidence supports a[n] ... employment discrimination complaint filed against a religious association." Id. at 284, 538 N.W.2d 588. Nonetheless, even though the Department has the "legislatively created authority and jurisdiction," the First Amendment may preclude the Department from enforcing secular mandates against religious organizations. Id. at 296, 538 N.W.2d 588. We therefore frame the underlying issue as whether the First Amendment precludes the Department from adjudicating Ostlund's complaint.

II. Relationship of Ministerial Exception to Reasons for Employment Decision

¶ 13 As a threshold matter we resolve the issue of whether we may consider the asserted reasons for the employment decision either as part of the application of the ministerial exception or as an alternative to deciding whether that exception applies.

¶ 14 Under the "ministerial exception," which we adopted in Jocz, "the Department [] is prevented from enforcing the state's employment discrimination laws against religious associations when the employment position at issue serves a `ministerial' or `ecclesiastical'4 function." Id. at 301, 538 N.W.2d 588 (footnote added). In adopting this exception, we followed McClure v. Salvation Army, 460 F.2d 553, 560-61 (5th Cir.1972), and Rayburn v. General Conf. of Seventh-Day Adventists, 772 F.2d 1164, 1167-70 (4th Cir.1985), which held that the First Amendment's free exercise clause5 precluded adjudicating Title VII complaints based on gender and race filed, respectively, by a minister and an applicant for a...

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2 practice notes
  • Coulee Catholic Schools v. Labor and Industry Review Comm., No. 2007AP496.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 21, 2009
    ...not ministerial. Coulee Catholic Schs. v. Labor & Indus. Review Comm'n, Dep't of Workforce Dev., 2008 WI App 68, ¶ 36, 312 Wis.2d 331, 752 N.W.2d 341. In determining whether a teacher has a ministerial function, the court of appeals considered the "primary duties" test in Jocz and the three......
  • Disciplinary Proceedings against Gernetzke, No. 2006AP2629-D.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 17, 2008
    ...addition, SCR 22.29(4) sets forth related requirements that a petition for reinstatement must show. All of these additional requirements 752 N.W.2d 341 are effectively incorporated into SCR ¶ 10 After review of the record, we agree with the referee that Attorney Gernetzke has established by......
2 cases
  • Coulee Catholic Schools v. Labor and Industry Review Comm., No. 2007AP496.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 21, 2009
    ...not ministerial. Coulee Catholic Schs. v. Labor & Indus. Review Comm'n, Dep't of Workforce Dev., 2008 WI App 68, ¶ 36, 312 Wis.2d 331, 752 N.W.2d 341. In determining whether a teacher has a ministerial function, the court of appeals considered the "primary duties" test in Jocz and the three......
  • Disciplinary Proceedings against Gernetzke, No. 2006AP2629-D.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 17, 2008
    ...addition, SCR 22.29(4) sets forth related requirements that a petition for reinstatement must show. All of these additional requirements 752 N.W.2d 341 are effectively incorporated into SCR ¶ 10 After review of the record, we agree with the referee that Attorney Gernetzke has established by......

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