Herx v. Diocese of Fort Wayne-South Bend, Inc.
| Decision Date | 01 December 2014 |
| Docket Number | No. 14–3057.,14–3057. |
| Citation | 772 F.3d 1085 |
| Parties | Emily HERX, Plaintiff–Appellee, v. DIOCESE OF FORT WAYNE–SOUTH BEND, INC. and St. Vincent de Paul School, Defendants–Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Kathleen A. DeLaney, Attorney, Delaney & Delaney LLC, Indianapolis, IN, for Plaintiff–Appellee.
M. Scott Hall, Attorney, Hall & Gooden, John Charles Theisen, Attorney, Theisen & Associates, Fort Wayne, IN, for Defendant–Appellant.
Before CUDAHY, WILLIAMS, and SYKES, Circuit Judges.
A Catholic school in Fort Wayne, Indiana, discharged a language-arts teacher because she underwent in vitro fertilization in violation of the moral teaching of the Catholic Church. She sued the school and the local diocese alleging that they unlawfully discriminated against her because of her sex and disability. The case comes to us from an order denying the' motion for summary judgment. Because that decision is nonfinal, the plaintiff has moved to dismiss for lack of appellate jurisdiction. For the reasons that follow, we grant the motion.
In August 2003 Emily Herx began work as a junior-high language-arts teacher at St. Vincent de Paul School in Fort Wayne, Indiana. Her teaching contract was subject to annual renewal. In 2008 Herx and her husband learned that she has a medical condition that causes infertility. She began a course of fertility treatments, starting with artificial insemination. That procedure was unsuccessful, and in March 2010 she underwent in vitro fertilization. Herx told the school's principal about her treatment and was allowed to take time off for it. Herx's contract was renewed again for the 2010–2011 school year.
In April 2011, just as Herx was about to undergo a second round of in vitro fertilization, Monsignor John Kuzmich, the pastor of St. Vincent de Paul Catholic Church, met with Herx and advised her that in vitro fertilization is incompatible with the Catholic Church's moral teaching. Soon after that meeting, the Diocese of Fort Wayne–South Bend notified Herx that because she underwent in vitro fertilization in violation of the Church's moral doctrine, her teaching contract would not be renewed for the 2011–2012 school year.
Herx sued the Diocese and St. Vincent School (collectively, “the Diocese”) alleging claims under Title VII of the Civil Rights Act, as amended by the Pregnancy Discrimination Act, see 42 U.S.C. § 2000e–2 ; id. § 2000e(k), and the Americans with Disabilities Act (“ADA”), see 42 U.S.C. §§ 12101 et seq. She contends that the defendants discriminated against her on the basis of sex and disability by refusing to renew her contract because she underwent in vitro fertilization.
The Diocese moved for summary judgment on both claims. The district court granted the motion with respect to the ADA claim; that ruling is not at issue on this appeal. On the Title VII claim, the Diocese invoked two statutory exemptions available to religious organizations. The first provides as follows:
This subchapter shall not apply to ... a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.
42 U.S.C. § 2000e–1(a). The second is specific to religiously affiliated educational institutions and states as follows:
[I]t shall not be an unlawful employment practice for a school, college, university, or other educational institution or institution of learning to hire and employ employees of a particular religion if such school, college, university, or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion.
Invoking the exemptions in the context of this case raises a question of first impression in this circuit: Are the religious-employer exemptions in Title VII applicable only to claims of religious discrimination or do they apply more broadly to other employment-discrimination claims? Relying on caselaw from other circuits, the district court held that the religious-employer exemptions apply only to claims alleging religious discrimination and do not bar Title VII claims against religious organizations alleging discrimination on the basis of race, color, sex, or national origin. See e.g., Kennedy v. St. Joseph's Ministries, Inc., 657 F.3d 189, 192 (4th Cir.2011) ; Boyd v. Harding Acad. of Memphis, Inc., 88 F.3d 410, 413 (6th Cir.1996) ; EEOC v. Pac. Press Publ'g Ass'n, 676 F.2d 1272, 1279 (9th Cir.1982).
The Diocese argued in the alternative that if the statutory exemptions do not apply, then Title VII is unconstitutional as applied because the jury would be asked to engage in an impermissible inquiry into the religious teachings of the Catholic Church. The judge was sensitive to this problem. He acknowledged that “[t]he Diocese is understandably concerned about the possibility of a ... jury conducting its own secular analysis of Roman Catholic doctrine on in vitro fertilization.” He said “[t]hat shouldn't happen” in this case, and he assured the parties that he would instruct the jury not to consider “whether [the Diocese's] actions were wise, reasonable, or fair,” but only whether Herx had proved that the Diocese took an adverse employment action against her because of her sex. Federal Civil Jury Instructions of the Seventh Circuit 3.07 (2010).
The Diocese also argued that the ministerial exception rooted in the religion clauses of the First Amendment barred Herx's claim. See Hosanna–Tabor Evangelical Lutheran Church & Sch. v. EEOC, ––– U.S. ––––, 132 S.Ct. 694, 181 L.Ed.2d 650 (2012). The judge rejected this argument as well, holding that because Herx was a lay language-arts teacher with no role in religious education at St. Vincent, the ministerial exception did not apply.
Finally, the judge held that a reasonable jury could find the Diocese liable on Herx's sex-discrimination claim. The Diocese said it would discharge any employee—male or female—who was found to have violated the Church's teaching against in vitro fertilization. In other words, the Diocese requires all employees to abide by the moral standards set by the Church and enforces those standards without regard to sex. The judge concluded that “a jury wouldn't be compelled to accept that avowed gender-neutrality.” This was so, the judge held, “[e]ven in the face of ... evidence [of gender neutrality] from the Diocese,” because “a jury that resolved every factual dispute, and drew every reasonable inference, in Mrs. Herx's favor could infer that Mrs. Herx's contract would have been renewed had she been male and everything else remained the same.”
For these reasons, the judge denied the Diocese's motion for summary judgment on the sex-discrimination claim and set a trial date of December 16, 2014.
The Diocese did not ask the court to certify the summary-judgment order for immediate appeal under 28 U.S.C. § 1292(b), as it might have done. See Kennedy, 657 F.3d at 191 (). Instead, the Diocese brought this appeal under the auspices of the collateral-order doctrine.
The legal and factual merits of this case are not before us. Because the appeal is interlocutory, Herx has moved to dismiss for lack of appellate jurisdiction, arguing that the collateral-order doctrine does not apply. We ordered a response from the Diocese and suspended merits briefing pending disposition of the motion. The response is now in, as is a reply brief from Herx, so the motion is ready for decision.
The federal courts of appeals ordinarily have jurisdiction to review only “final decisions of the district courts.” 28 U.S.C. § 1291. But the collateral-order doctrine confers finality—and thus immediate appealability—on a small category of interlocutory orders “too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Included in this “small category” are “decisions that are conclusive, that resolve important questions separate from the merits, and that are effectively unreviewable on appeal from the final judgment in the underlying action.” Swint v. Chambers Cnty. Comm'n, 514 U.S. 35, 42, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995).
These three conditions for collateral-order review—(1) a conclusive decision; (2) on an important issue that is conceptually separate from the merits; and (3) that is effectively unreviewable on an appeal from a final judgment—are considered “stringent.” Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994). And they must be kept so lest the collateral-order doctrine “overpower the substantial finality interests § 1291 is meant to further.” Will v. Hallock, 546 U.S. 345, 350, 126 S.Ct. 952, 163 L.Ed.2d 836 (2006). These interests include “judicial efficiency ... and the ‘sensible policy of avoid [ing] the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise.’ ” Id. (quoting Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981) ).
The Supreme Court's most recent forays into the collateral-order doctrine are replete with references...
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