E.E.O.C. v. Hosanna-Tabor Lutheran Church

• Decision Date: 23 October 2008
• Docket Number: Case No. 07-14124.
• Citation: 582 F.Supp.2d 881
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCH AND SCHOOL, Defendant, and Cheryl Perich, Plaintiff/Intervenor, v. Hosanna-Tabor Evangelical Lutheran Church and School, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

582 F.Supp.2d 881

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCH AND SCHOOL, Defendant, and Cheryl Perich, Plaintiff/Intervenor, v. Hosanna-Tabor Evangelical Lutheran Church and School, Defendant.

Case No. 07-14124.

United States District Court, E.D. Michigan, Southern Division.

October 23, 2008.

Deborah M. Barno, Omar Weaver, Equal Employment Opportunity Commission, Detroit, MI, for Plaintiff.

James E. Roach, Vercruysse, Murray, Bingham Farms, MI, for Intervenor Plaintiff.

Deano C. Ware, Deano C. Ware, P.C., Redford, MI, for Defendant.

OPINION AND ORDER

PATRICK J. DUGGAN, District Judge.

This action arises from Plaintiff/Intervenor Cheryl Perich's ("Perich") employment relationship with Defendant Hosanna-Tabor Evangelical Lutheran Church and School ("Hosanna-Tabor"). Hosanna-Tabor officially terminated Perich from her teaching position on April 11, 2005. On May 17, 2005, Perich filed a complaint with the Equal Employment Opportunity Commission ("EEOC") alleging that Hosanna-Tabor had discriminated and retaliated against her in violation of the Americans with Disabilities Act ("ADA"). The EEOC brought suit against Hosanna-Tabor for retaliation against Perich on September 28, 2007. Perich later intervened as a plaintiff raising the same federal retaliation claim as the EEOC and adding a second retaliation claim under Michigan state law. Presently before the Court are Hosanna-Tabor's motions for summary judgment on all claims as well as Perich's motion for summary judgment which has been joined by the EEOC. The motions have been fully briefed and a hearing was held on September 25, 2008. For the reasons set forth below, the Court grants Hosanna-Tabor's motions for summary judgment.

I. Factual and Procedural Background

Hosanna-Tabor is a religious school that teaches kindergarten through eighth grades. Hosanna-Tabor's faculty consists of two types of teachers: "lay" or "contract" teachers and "called" teachers. A contract teacher is hired by the Board of Education for a one year term and must renew the contract each year to continue in Hosanna-Tabor's employment. In contrast, a called teacher is hired by the voting members of the Hosanna-Tabor Lutheran Church congregation on the recommendation of the Board of Education, Board of Elders, and Board of Directors. To be eligible for a "call," a teacher must complete "colloquy" classes as required by the Lutheran Church-Missouri Synod that focus on various aspects of the Christian faith. After completing the colloquy, the teacher receives a certificate of admission into the teaching ministry and the Michigan District of the Lutheran Church-Missouri Synod will assist the teacher in finding employment by placing the teacher's name on a list of teachers that is distributed to schools in need. Once selected by a church congregation, a called teacher obtains the title of "commissioned minister." Called teachers are hired on an open ended basis and cannot be summarily dismissed without cause. Finally, called teachers have the opportunity to claim a special housing allowance on their income taxes provided they are conducting activities "in the exercise of ministry." (Def.'s Mot. for Partial Sum. J., Ex. Q.)

In July 1999, Hosanna-Tabor hired Perich as a contract teacher to teach kindergarten for the upcoming school year. Perich had previously been employed at other Lutheran schools and had already begun pursuing her "call" by attending colloquy classes at Concordia College. Perich completed her colloquy in February 2000 and received her call from the Hosanna-Tabor Lutheran Church on March 29, 2000.¹ From then until her termination, Perich was listed as a commissioned minister in the Lutheran Church-Missouri Synod. At least once during this time, Perich claimed the housing allowance on her taxes.

After receiving her call, Perich's employment continued unchanged in form from her time as a contract teacher. During her years with Hosanna-Tabor, Perich taught math, language arts, social studies, science, gym, art, and music. In addition, Perich taught a religion class for thirty minutes a day four days a week and attended a chapel service with her class for about thirty minutes once a week. About twice a year, Perich led the chapel service in rotation with other teachers. Hosanna-Tabor does not require that teachers leading chapel or teaching religion be "called" or even Lutheran. Perich also led her classes in prayer three times a day for a total of five or six minutes and, at least during her final year as a teacher at Hosanna-Tabor, Perich's class engaged in a devotional for five to ten minutes each morning. In all, however, activities devoted to religion consumed only about forty-five minutes of the seven-hour school day.

Nonetheless, Hosanna-Tabor's website indicates that it provides a "Christ-centered education" that helps parents by "reinforcing biblical principals [sic] and standards." Hosanna-Tabor also characterizes its staff members as "fine Christian role models who integrate their faith into all subjects." Perich notes, however, that secular school subjects were taught with textbooks commonly used in public education and that she can only recall twice in her career when she introduced the topic of religion during otherwise secular discussion.

Perich's employment with Hosanna-Tabor went without incident for several years. In the summer of 2004, however, Perich became suddenly ill at a Hosanna-Tabor golf outing. As her doctor struggled to find the right diagnosis, Perich agreed with Hosanna-Tabor administrators that it would be best that she go on disability leave for the 2004-2005 school year. Perich officially went on disability leave in August. During the period she was on disability, Perich provided regular updates to Hosanna-Tabor's principal, Stacy Hoeft.

On December 16, 2004, Perich informed Hoeft via email that her doctor had finally confirmed a diagnosis of narcolepsy and that she would be able to return to work in two to four months once she was stabilized on medication. On January 10, 2005, Hoeft informed Perich of Hosanna-Tabor's decision to hire a substitute teacher to work in Perich's absence. Until that time, another teacher had been teaching three grade levels at once to cover for Perich but the arrangement was no longer feasible. In anticipation of the 2005-2006 school year, Hoeft requested on January 19 that Perich begin considering and discussing with her doctor what she would be able to do upon return. Perich responded the same day that she would be fully functional with the assistance of medication. Perich reiterated this sentiment with additional explanation on January 21.

Also on January 21, Hoeft informed Perich of the school board's intent to amend the employee handbook to request that employees on disability for more than six months resign their calls to allow Hosanna-Tabor to responsibly fill their positions. Such resignations would not prevent employees from later pursuing reinstatement of their calls upon return to health. Perich had been on disability for over five months at the time she received this email.

On January 27 Perich informed Hoeft that she would be able to return to work between February 14 and February 28. Hoeft responded with surprise to Perich's email because, only days before, Perich had disclosed that she was unable to fill out her disability forms because of her condition. Hoeft feared that Perich's condition would jeopardize the safety of the students in her care. Hoeft also expressed concern about forcing students to adjust to a third teacher in one academic year. Three days later at a voter's meeting for the Hosanna-Tabor Church, school administrators opined that Perich would not be able to return to teaching that school year or the next. Based on this and other considerations, the congregation voted to request that Perich accept a peaceful release agreement wherein Perich would resign her call in exchange for the congregation paying for a portion of her health insurance premiums for the remainder of the calendar year. On February 7, the school board selected Scott Salo, chairman of the board, to discuss this proposal with Perich.

On February 8 Perich's doctor gave her a written release to return to work without restrictions on February 22. The next day, Salo contacted Perich to arrange a meeting to discuss her employment. Perich instead requested to meet with the entire school board and the meeting was scheduled for February 13. At that meeting, the board presented the peaceful release proposal and Perich responded by presenting her work release note. Despite the doctor's note, the board remained concerned about Perich's ability to supervise students for an entire school day. Perich explained that she needed to return to work because, as of her doctor's release on February 22, she would no longer be eligible for disability coverage. The board, however, continued to request that Perich resign and asked her to email her decision by February 21.

Shortly after nine at night on February 21, Perich emailed Hoeft to inform her that she would not resign from her position and would be at school to resume her job in the morning. The next day there was no job for Perich to return to upon her arrival at Hosanna-Tabor. Perich, however, refused to leave school grounds until she received a letter acknowledging that she appeared for work because the Hosanna-Tabor employee handbook states that failure to return to work on the first day following the expiration of an approved medical leave is viewed as a voluntary termination. Perich subsequently received a letter from Hoeft and Salo indicating that she had provided improper notification of her return to work and requesting that she continue her leave. Perich then left the premises.

Hoeft and Perich spoke again that day over the phone; Hoeft indicated that Perich would likely be fired and Perich indicated that ...