Crisitello v. St. Theresa Sch.

• Decision Date: 19 November 2020
• Docket Number: DOCKET NO. A-4713-18T3
• Citation: 242 A.3d 292,465 N.J.Super. 223
• Parties: Victoria CRISITELLO, Plaintiff-Appellant, v. ST. THERESA SCHOOL, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

465 N.J.Super. 223

242 A.3d 292

Victoria CRISITELLO, Plaintiff-Appellant,

v.ST. THERESA SCHOOL, Defendant-Respondent.

DOCKET NO. A-4713-18T3

Superior Court of New Jersey, Appellate Division.

Submitted September 14, 2020

Decided November 19, 2020

Castronovo & McKinney, LLC, attorneys for appellant (Thomas A. McKinney, of counsel and on the briefs; Megan Frese Porio, Morristown, and Edward W. Schroll, on the briefs).

Carella, Byrne, Cecchi, Olstein, Brody & Agnello, PC, attorneys for respondent (Christopher H. Westrick, Roseland, of counsel and on the briefs; Kenneth D. McPherson, Secaucus, on the briefs).

Before Judges Rothstadt, Mayer, and Susswein.

The opinion of the court was delivered by

ROTHSTADT, J.A.D.

In this action brought under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, we are asked to determine whether a parochial school's knowledge of the pregnancy of an unmarried lay teacher, who started as a teacher's aide for toddlers, later taught art, and had no responsibility for religious instruction, can serve as the nondiscriminatory basis for the teacher's termination for violating the school's morals code, where the school never made any effort to determine whether any of its other employees have violated the school's prohibition against "immoral conduct" that is allegedly incorporated into each employees' terms of employment. We now hold that knowledge or mere observation of an employee's pregnancy alone is not a permissible basis to detect violations of the school's policy and terminate an employee.

I.

Plaintiff Victoria Crisitello brings this matter before us a second time to review an order granting summary judgment to defendant St. Theresa's R.C. Church, the owner and operator of St. Theresa School, dismissing plaintiff's complaint for damages arising from her allegedly unlawful termination as a lay teacher at defendant's school based solely upon defendant learning that plaintiff was pregnant while unmarried. In an earlier unpublished opinion, we determined that the First Amendment to the United States Constitution did not bar plaintiff's action, and that plaintiff established a prima facie claim of discrimination under the first step in the McDonnell Douglas analysis.¹ We reversed the award of summary judgment and remanded to allow for discovery as to "the issue of defendant's treatment of all 'similarly situated' employees who defendant knew were in violation of its ethics code," which had been denied by the trial court. Crisitello v. St. Theresa Sch., No. A-1294-16, 2018 WL 3542871 (App. Div. July 24, 2018) ( Crisitello I ) ( 2018 WL 3542871 at *9 ). We did so because "[a]bsent evidence that men are treated the same way as women who are terminated for engaging in premarital sex, a religious institution violates [the] LAD" if the institution terminates a woman for engaging in premarital sex based solely on knowledge of her pregnancy. Id., 2018 WL 3542871 at *7. Considering "women can become pregnant [and] men cannot," that termination "punishes only women for [premarital] sexual relations because those relations are revealed through pregnancy." Ibid. (first alteration in original) (quoting Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 667 (6th Cir. 1999) ).²

After our remand and the parties having engaged in the required discovery, defendant again filed for summary judgment, which the trial court³ granted on May 23, 2019. On appeal from that order, plaintiff argues that the trial court improperly granted summary judgment as defendant had no specific policy explaining that an employee could be terminated for premarital sex and her termination was solely due to defendant's knowledge of her pregnancy.

We reverse because on summary judgment it was undisputed that defendant took no actions to detect whether any of its employees violated Catholic tenets or breached defendant's employee handbook. Instead, the evidence established that defendant relied only upon knowledge of its female employees' pregnancy and marital status as a basis to enforce its code of ethics and handbook requirements—neither of which expressly addressed premarital sex as a prohibited conduct, but of which the former prohibited engaging in "immoral conduct" that could cause "scandal."

For our purposes here, we need not recite at length the undisputed facts as stated in our earlier opinion. See id. at 3-12. We only summarize the portion of that recitation that is pertinent to the present review.

As we previously explained, it was undisputed that defendant required all of its "lay faithful" teachers, "whether employed in areas of ministry or other kinds of services," to abide by a code of conduct that was not "contrary to the discipline and teachings of the Catholic Church[,] and/or which may result in scandal ... or harm to the ministry of the Catholic Church." Additionally, defendant's handbook contained numerous provisions aligning with the Church's tenets, including a section labeled "Christian Witness" which required teachers to practice a "value-centered approach to living and learning in their private and professional lives." The handbook also provided that each staff member "integrate culture, faith, and life through the teachings of all subject areas in the light of the Gospel so that the children can become ‘good Christians and honest citizens.’ "

However, it was also undisputed that

[n]one of the policies or provisions of the handbook expressly identified premarital sex as a prohibited conduct. According to the school's principal, Sister Theresa Lee, there was no specific statement in any document that "would inform someone that if they became pregnant while being unmarried that they would be violating [any] policy." There was also no statement in the documents that a violation of any provision would result in immediate termination from employment.^{[4 ]} [Id. at 4-5.]

Plaintiff, who held a bachelor's degree in art education, was hired by defendant in September 2011, as a teacher's aide "in the toddler room." Two years later, plaintiff also began teaching art for students in kindergarten to eighth grade. Plaintiff never taught courses about religion nor did she act as a minister or any other member of the clergy.

When defendant hired plaintiff, she received a copy of defendant's Policies of Professional and Ministerial Conduct (Policies) and Code of Ethics as well as the handbook. Moreover, she was aware of the Church's prohibition against premarital sex.

In 2014, while having a conversation about defendant wanting plaintiff to assume additional responsibilities, plaintiff advised the school's principal, Sister Theresa Lee, that she was pregnant and that if she were to perform additional work, she would like to be paid more. In response, Lee advised that there would be no pay increase.

A few weeks later, Lee, on her own, decided to fire plaintiff for engaging in premarital sex. However, before doing so, defendant hired a replacement who was a married woman with children.

When defendant finally fired plaintiff, it told her she was being terminated because she was pregnant and unmarried. It was undisputed that plaintiff's termination related only to that fact as compared to her job performance. It was also undisputed that defendant never made any "inquiry of any employee as to whether they were pregnant, unmarried, engaged in premarital sex, divorced, or otherwise violated any of the Church's doctrines." Id. at 7.

In reversing the earlier summary judgment order, we considered plaintiff's claim under the LAD. Id. at 17. We acknowledged defendant's right to terminate a teacher whose employment was conditioned upon adherence to its "religious principles," id. at 12-13, and we explained in detail why plaintiff's claim was not barred by the First Amendment to the United States Constitution, id. at 13–16, or by N.J.S.A. 10:15-12(a) which permits a "religious association" to "follow[ ] the tenets of its religion in establishing and utilizing criteria for employment of an employee." Id. at 16-18.

We also determined that plaintiff established "a prima facie claim," id. at 23, as she was part of a protected class "through her marital status and pregnancy," qualified for her position, terminated for her marital status and pregnancy, and replaced by a similarly situated individual, which gave rise to an inference of unlawful discrimination. Id. at 23-26.

We also explained the relevance of evidence of disparate treatment to plaintiff's claim. Specifically, "how male or not pregnant female teachers at defendant's school who engaged in premarital sex were detected or treated by defendant." Id. at 22, 27 (emphasis added). We noted that knowledge or mere observation of an employee's pregnancy alone was not a permissible basis to detect violations of the school's policy and terminate an employee. Id. at 22.

The only issue left to determine was "whether defendant's asserted reason for firing plaintiff was pretextual," which required a consideration of other employees who were disciplined or terminated for violation of defendant's policies. Id. at 26. Because the trial court barred discovery of such evidence and granted summary judgment based solely on defendant's "policy being violated ... [and] the obvious inference plaintiff engaged in premarital sex," we reversed the summary judgment and discovery orders so evidence could be presented on how "all ‘similarly situated’ employees" were treated by defendant for violations of its ethics code. Ibid.

On remand, the trial court entered an order that required defendant to produce "any documents concerning employees ‘similarly situated’ to [p]laintiff [defined as all non-clergy employees who worked for [d]efendant during [p]laintiff's employment], whom [d]efendant knew were allegedly in violation of its ethics code by virtue of engaging in premarital sex, being divorced, or any other reason ...." (second alteration in original). Further, plaintiff was required to complete...