Demkovich v. St. Andrew the Apostle Parish, 19-2142

• Citation: 3 F.4th 968
• Decision Date: 09 July 2021
• Docket Number: No. 19-2142,19-2142
• Parties: Sandor DEMKOVICH, Plaintiff-Appellee, v. ST. ANDREW THE APOSTLE PARISH, CALUMET CITY, and The Archdiocese of Chicago, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

3 F.4th 968

Sandor DEMKOVICH, Plaintiff-Appellee,

v.ST. ANDREW THE APOSTLE PARISH, CALUMET CITY, and The Archdiocese of Chicago, Defendants-Appellants.

No. 19-2142

United States Court of Appeals, Seventh Circuit.

Argued February 9, 2021

Decided July 9, 2021

Kristina B. Alkass, Thomas J. Fox, Patti S. Levinson, Attorneys, Lavelle Law, Ltd., Schaumburg, IL, David L. Franklin, Attorney, Massey & Gail LLP, Chicago, IL, for Plaintiff-Appellee.

Daniel Howard Blomberg, Eric C. Rassbach, Daniel D. Benson, Attorneys, Becket Fund for Religious Liberty, Washington, DC, James C. Geoly, Attorney, Archdiocese of Chicago, Office of Legal Services, Alexander David Marks, Attorney, Burke, Warren, Mackay & Serritella, P.C., Chicago, IL, for Defendants-Appellants.

Thomas M. Fisher, Kian James Hudson, Julia Catherine Payne, Esq., Attorneys, Office of the Attorney General, Indianapolis, IN, for Amicus Curiae State of Indiana.

Victoria Dorfman, Attorney, Jones Day, Washington, DC, Victoria Powell, Attorney, Jones Day, Atlanta, GA, for Amicus Curiae Robert F. Cochran, Jr.

Kelly J. Shackelford, Esq., Attorney, First Liberty Institute, Plano, TX, for Amicus Curiae Lutheran Church-Missouri Synod.

Kimberlee Wood Colby, Attorney, Center for Law & Religious Freedom, Springfield, VA, for Amicus Curiae Serbian Orthodox Diocese of New Gracanica-Midwestern America.

Sarah M. Harris, Attorney, Williams & Connolly LLP, Washington, DC, for Amicus Curiae Ethics and Religious Liberty Commission of the Southern Baptist Convention.

Paul E. Harold, Stephen M. Judge, Attorneys, SouthBank Legal: Ladue Curran & Kuehn LLC, South Bend, IN, for Amici Curiae Catholic Conference of Illinois, Indiana Catholic Conference.

John J. Bursch, Attorney, Bursch Law PLLC, Caledonia, MI, Rory Thomas Gray, Attorney, Alliance Defending Freedom, GA Regional Service Center, Lawrenceville, GA, for Amicus Curiae Cardinal Newman Society.

Philip Matthew Kovnat, Attorney, Equal Employment Opportunity Commission, Washington, DC, for Amicus Curiae Equal Employment Opportunity Commission.

Diana Katherine Flynn, Attorney, Lambda Legal Defense & Education Fund, Washington, DC, for Amicus Curiae Catholics for Choice.

Bradley Girard, Attorney, Americans United for Separation of Church and State, for Amicus Curiae Religious Entities, Civil-Rights Organizations, Unions, and Professional Associations.

Before Sykes, Chief Judge, and Flaum, Easterbrook, Kanne, Rovner, Wood, Hamilton, Brennan, St. Eve, and Kirsch, Circuit Judges.¹

Brennan, Circuit Judge.

The ministerial exception, grounded in the First Amendment's Religion Clauses, protects religious organizations from employment discrimination suits brought by their ministers. The question here is whether this constitutional protection applies to hostile work environment claims based on minister-on-minister harassment. We hold that it does.

I

St. Andrew the Apostle Parish in Calumet City, Illinois is a Roman Catholic church of the Archdiocese of Chicago.² In September 2012, the church hired Sandor Demkovich as its music director, choir director, and organist. Reverend Jacek Dada, a Catholic priest and the church's pastor, supervised Demkovich in these roles. Over the next two years, their relationship deteriorated, culminating in Demkovich's termination by Reverend Dada in September 2014. Demkovich alleges that Reverend Dada, who is not a defendant here, discriminated against him based largely on his sexual orientation and physical condition.

Demkovich is a gay man. According to Demkovich, Reverend Dada repeatedly subjected him to derogatory comments and demeaning epithets showing a discriminatory animus toward his sexual orientation. The frequency and hostility of these remarks increased after Reverend Dada learned that Demkovich planned to marry his partner while still employed by the church. After Demkovich's marriage in September 2014, Reverend Dada asked for his resignation and told him that his marriage was against the teachings of the Catholic Church. When Demkovich refused, Reverend Dada fired him.

Demkovich also suffers from diabetes, metabolic syndrome

, and weight issues. Before Demkovich's termination, Reverend Dada allegedly made belittling and humiliating comments based on these conditions as well. Reverend Dada's remarks, by Demkovich's account, had no discernible connection with the terms of his employment and adversely affected his mental and physical health.

Eventually, Demkovich sued the church and the Archdiocese for employment discrimination. In his initial complaint, Demkovich claimed the church fired him based on his sex, sexual orientation, marital status, and disability. He alleged the church therefore violated Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e-2 et seq. , the Americans with Disabilities Act, 42 U.S.C. § 12112 et seq ., and analogous state and county laws. The church moved to dismiss Demkovich's case under Federal Rule of Civil Procedure 12(b)(6) and raised the ministerial exception as an affirmative defense to his claims. The district court deemed Demkovich a minister protected by the exception, granted the church's motion, and dismissed the complaint in full, albeit without prejudice.

In his amended complaint, Demkovich repackaged his allegations of discriminatory termination as hostile work environment claims. The church again moved to dismiss and invoked the ministerial exception a second time. The district court granted this motion in part, dismissing Demkovich's hostile work environment claims based on sex, sexual orientation, and marital status while allowing his disability-based hostile work environment claims to proceed. Demkovich v. St. Andrew the Apostle Par. , 343 F. Supp. 3d 772, 776, 789 (N.D. Ill. 2018).³

The district court held that the ministerial exception did not categorically bar Demkovich's hostile work environment claims. Id. at 778–86. Protection under the ministerial exception instead turned on whether the plaintiff challenged a tangible or intangible employment action. Id. at 780. Claims based on tangible employment actions, such as termination, were categorically barred; claims based on intangible employment actions, such as discriminatory remarks and insults, were not. Id. at 778, 781–83. The district court reasoned that tangible employment actions implicated a minister's employment status, and therefore the religious organization's authority over that minister, in ways unlike intangible employment actions. Id. at 781–83. Because Demkovich alleged intangible employment actions in his amended complaint, the ministerial exception was not a "categorical bar" to his claims. Id. at 786. Rather, only concerns over excessive church-state entanglement—as when a religious organization proffers a religious justification for alleged conduct—could trigger the ministerial exception's protection against intangible employment action claims. Id. at 784–86. For the district court, application of the ministerial exception to intangible employment actions depended on a case-by-case balancing. Id.

This balancing led the district court to dismiss Demkovich's claims of a hostile work environment based on his sex, sexual orientation, and marital status. Id. at 786–87. Several factors supported protecting the church. First, the church offered a religious justification for Reverend Dada's allegedly discriminatory remarks. Id. at 786. Second, Demkovich's status as a minister implicated the church's absolute right to choose its own ministers without civil interference. Id. at 786–87. And third, practical and procedural concerns, including the need to probe for animus and intrusive discovery, favored applying the ministerial exception. Id. at 787. The balance tipped the other way for Demkovich's disability-based hostile work environment claims, however. Id. at 787–88. The church offered no religious justification for these claims, so the district court did not see the same risks of excessive entanglement present in adjudicating the sex, sexual orientation, and marital status claims. Id. at 788. With only Demkovich's disability claims remaining, discovery began.

On the church's motion, the district court then certified a controlling question of law to this court under 28 U.S.C. § 1292(b) :

Under Title VII and the Americans with Disabilities Act, does the ministerial exception ban all claims of a hostile work environment brought by a plaintiff who qualifies as a minister, even if the claim does not challenge a tangible employment action?

A motions panel of this court accepted this interlocutory appeal. An appeal under § 1292(b) brings up the whole certified order. United Airlines, Inc. v. Mesa Airlines, Inc. , 219 F.3d 605, 609 (7th Cir. 2000) ; see BP P.L.C. v. Mayor & City Council of Baltimore , ––– U.S. ––––, 141 S. Ct. 1532, 1539–40, 209 L.Ed.2d 631 (2021). We "may address any issue fairly included within the certified order because ‘it is the order that is appealable, and not the controlling question identified by the district court.’ " Yamaha Motor Corp., U.S.A. v. Calhoun , 516 U.S. 199, 205, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996) (quoting 9 J. MOORE & B. WARD, MOORE'S FEDERAL PRACTICE ¶ 110.25[1], p. 300 (2d ed. 1995)). A divided panel affirmed the district court's decision denying dismissal of Demkovich's disability-based hostile work environment claim, and reversed its dismissal of his sex, sexual orientation, and marital status claims. Demkovich v. St. Andrew the Apostle Par. , 973 F.3d 718 (7th Cir. 2020). We vacated the panel opinion and reheard this interlocutory appeal en banc. Our review is de novo. Degroot v. Client Servs., Inc. , 977 F.3d 656, 659 (7th Cir. 2020).

II

A

The First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. CONST. amend. I. From the Establishment Clause and the Free Exercise Clause flows the ministerial exception, which "ensures that the authority to select and control who will minister...