Opportu v. Evangelical

• Decision Date: 09 March 2010
• Docket Number: Nos. 09-1134, 09-1135.,s. 09-1134, 09-1135.
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PlaintiffAppellant (09-1134),$$$ Cheryl Perich, Intervenor PlaintiffAppellant (09-1135), v. HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCH AND SCHOOL, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

597 F.3d 769

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PlaintiffAppellant (09-1134), $$$ Cheryl Perich, Intervenor PlaintiffAppellant (09-1135), v. HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCH AND SCHOOL, Defendant-Appellee.

Nos. 09-1134, 09-1135.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 6, 2009.

Decided and Filed: March 9, 2010.

COPYRIGHT MATERIAL OMITTED

ARGUED: Dori K. Bernstein, U.S Equal Employment Opportunity Commission, Washington, D.C., James E. Roach Vercruysse Murray & Calzone PC, Bingham Farms, Michigan, for Appellants. Deano C. Ware, Deano C. Ware, P.C. Redford, Michigan, for Appellee. ON BRIEF: Dori K. Bernstein, U.S. Equal Employment Opportunity Commission Washington, D.C., James E. Roach, Vercruysse Murray & Calzone PC, Bingham Farms, Michigan, for Appellants. Deano C. Ware, Deano C. Ware, P.C., Redford, Michigan, for Appellee.

Before: GUY, CLAY, and WHITE, Circuit Judges.

CLAY, J., delivered the opinion of the court, in which GUY, J., joined. WHITE, J. (pp. 782-84), delivered a separate concurring opinion.

OPINION

CLAY, Circuit Judge.

Plaintiffs, Equal Employment Opportunity Commission ("EEOC") and Cheryl Perich, appeal from the district court's order granting summary judgment in favor of Defendant Hosanna-Tabor Evangelical Lutheran Church and School ("HosannaTabor") in this action alleging discrimination in violation of the Americans with Disabilities Act of 1990, 42 U.S.C § 12117(a) (the "ADA"). For the reasons set forth below, we VACATE the district court's order and REMAND the case for further proceedings consistent with this opinion.

BACKGROUND

This case arises out of Perich's employment relationship with Hosanna-Tabor which terminated Perich from her teaching position on April 11, 2005. Hosanna-Tabor, an ecclesiastical corporation affiliated with the Lutheran Church-Missouri Synod (the "LCMS"), operates a church and school in Redford, Michigan. The school teaches kindergarten through eighth grades. The faculty consists of two types of teachers: (1) "lay" or "contract" teachers, and (2) "called" teachers. Contract teachers are hired by the Board of Education for one-year renewable terms of employment. Called teachers are hired by the voting members of the Hosanna-Tabor church congregation upon the recommendation of the Board of Education, Board of Elders, and Board of Directors. Called teachers are hired on an open-ended basis and cannot be summarily dismissed without cause. They can also apply for a housing allowance on their income taxes provided that they are conducting activities "in the exercise of the ministry." (Dist. Ct. R.E. 25 Ex. Q).

To be eligible for a "call, " a teacher must complete the colloquy classes required by the LCMS, which focus on various aspects of the Christian faith. After completing the colloquy, a teacher receives a certificate of admission into the teaching ministry, and the Michigan District of the LCMS places the teacher's name on a list that can be accessed by schools that need teachers. Once selected by a congregation, a called teacher receives the title of "commissioned minister."

In July 1999, Hosanna-Tabor hired Perich as a contract teacher to teach kindergarten on a one year contract from August 15, 1999 to June 15, 2000. After Perich completed the required colloquy classes at Concordia College in February 2000, Hosanna-Tabor hired Perich as a called teacher on March 29, 2000. Perich continued teaching kindergarten until the end of the 2002-2003 year. She taught fourth grade during the 2003-2004 school year, and she was assigned to teach third and fourth grades for the 2004-2005 school year. From the time she was hired as a called teacher until her termination, Perich was listed as a commissioned minister in the LCMS. At least once during her tenure, Perich claimed the housing allowance on her income taxes.

After Perich was hired as a called teacher, her employment duties remained identical to the duties she performed as a contract teacher. Perich taught math, language arts, social studies, science, gym, art, and music. Language ails instruction included reading, English, spelling, and handwriting. Music instruction included secular music theory and playing the recorder, using the same music book as the local public school. During the 2003-2004 school year, Perich taught computer training as well.

Perich also taught a religion class four days per week for thirty minutes, and she attended a chapel service with her class once a week for thirty minutes. Approximately twice a year, Perich led the chapel service in rotation with other teachers. Perich also led each class in prayer three times a day for a total of approximately five or six minutes. During her final year at Hosanna-Tabor, Perich's fourth grade class engaged in a devotional for five to ten minutes each morning. In all, activities devoted to religion consumed approximately forty-five minutes of the seven hour school day.

Hosanna-Tabor's website indicates that the school provides a "Christ-centered education" that helps parents by "reinforcing bible principals [sic] and standards." Hosanna-Tabor describes its staff members as "fine Christian role models who inte-grate faith into all subjects." Perich valued the freedom a sectarian school afforded to "bring God into every subject taught in the classroom." (Dist. Ct. R.E. 37 Ex. 1 ¶23). However, Perich taught secular subjects using secular textbooks commonly used in public schools, and she can only recall two instances in her career when she introduced religion into secular subjects.

Furthermore, Hosanna-Tabor does not require teachers to be called or even Lutheran. Non-Lutheran teachers have identical responsibilities as Lutheran teachers, including teaching religion classes and leading chapel service. Members of the custodial staff and at least one teacher who worked at Hosanna-Tabor were not Lutheran.

At a church golf outing in June 2004, Perich suddenly became ill and was taken to the hospital. She underwent a series of medical tests to determine the cause. Perich's doctors had not reached a definitive diagnosis by August, and Hosanna-Tabor administrators suggested that Perich apply for a disability leave of absence for the 2004-2005 school year. The principal of Hosanna-Tabor, Stacy Hoeft, informed Perich that she would "still have a job with [Hosanna-Tabor]" when she regained her health. (Dist. Ct. R.E. 24 Ex. 6). Perich agreed to take a disability leave and did not return to work at the beginning of the 2004-2005 school year. Throughout her leave, Perich regularly provided Hoeft with updates about her condition and progress.

On December 16, 2004, Perich informed Hoeft by email that her doctor had confirmed a diagnosis of narcolepsy and that she would be able to return to work in two to three months once she was stabilized on medication. On January 19, 2005, Hoeft asked Perich to begin considering and discussing with her doctor what she might be able to do upon return. Perich responded the same day that she had discussed her work day and teaching responsibilities with her doctor, and he had assured her that she would be fully functional with the assistance of medication. Perich reiterated this sentiment with additional explanation on January 21, 2005.

Also on January 21, 2005, Hoeft informed Perich that the school board intended 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 necessarily prevent reinstatement of these employees' calls upon their return to health. Perich had been on disability for more than five months when she received this email.

On January 27, 2005, Perich wrote to Hoeft that she would be able to return to work between February 14 and February 28, 2005. Hoeft responded with surprise, because Perich had indicated a few days before that she had been unable to complete her disability forms because of her condition. Hoeft expressed concern that Perich's condition would jeopardize the safety of the students in her care. Hoeft also indicated that Perich would not be teaching the third and fourth grades upon return, because the substitute teacher had a contract that ran through the end of the school year.¹ Furthermore, she indicated that the third and fourth grade students had already had two teachers that yearand having a third would not provide a good learning environment for them.

Three days later, at the annual congregational "shareholder" meeting, Hoeft and the school board expressed their opinion that it was unlikely that Perich would be physically capable of returning to work that school year or the next. Consequently, the congregation adopted the Board's proposal 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 through December 2005. On February 7, 2005, the Board selected Chairman Scott Salo to discuss this proposal with Perich.

On February 8, 2005, Perich's doctor gave her a written release to return to work without restrictions on February 22, 2005. The next day Salo contacted Perich to discuss her employment. Perich instead requested to meet with the entire school board. At the meeting on February 13, 2005, the Board presented the peaceful release proposal, and Perich responded by presenting her work release note. The Board continued to express concerns about Perich's ability to supervise students for the entire day. Perich explained that, as of her doctor's release on February 22, 2005, she would no longer be eligible for disability coverage and would be required to return to work. The Board, however, continued to request that Perich resign and asked her to respond to the peaceful release proposal by February 21, 2005.

Shortly after 9:00 p.m. on February 21 2005, Perich emailed Hoeft to confirm that she had...