Skrzypczak v. Roman Catholic Diocese of Tulsa, No. 09-5089 (10th Cir. July 13, 2010); Narayan v. EGL, Inc., No. 07-16487 (9th Cir. July 13, 2010)

| Jul 12, 2010 | Daily Developments in EEO Law |

The Tenth Circuit affirms dismissal of federal employment law claims against the Catholic Church based on the ministerial exception, declaring a partial split with the Ninth Circuit. The Ninth Circuit calls foul on a contract by an employer that attempted, baldly, to opt-out of California state-law labor protections.

Skrzypczak v. Roman Catholic Diocese of Tulsa, No. 09-5089 (10th Cir. July 13, 2010): The Tenth Circuit is the latest court to weigh in upon the issue of whether an employee’s claims against a religious institution are barred by the “ministerial exception.”  Although the various federal employment discrimination statutes do not contain blanket exclusions of religious employers, courts imply (under the First Amendment) a rule that such employers are immune from suit by employees engaged in the spiritual mission of the faith. Though this immunity applies most clearly to those in religious life, even those with secondary duties in a church or temple might be included within its sweep (such as a music director and organist, Tomic v. Catholic Diocese of Peoria, 442 F3d 1036 (7th Cir. 2006)) .

The employee in this case worked at the Diocese of Tulsa’s offices engaged in administering lay education. As the panel summarizes (with an inapt turn of phrase):

“. . . Appellant’s position required her to supervise the Pastoral Studies Institute, whose stated purpose is to ‘provide a solid foundation in Catholic theology to educate, nourish, strengthen, and renew the Catholic faith.’ (Appellees’ Supplemental App. at 1.) According to Bishop Slattery, Appellant’s duties in connection with the Institute included ‘the development and planning of theological and other religious education programs.’ (Appellant’s App. at 208.) Indeed, the record indicates Appellant taught multiple religious courses at the Institute; a fact which seems particularly damning in this case. Additionally, Bishop Slattery indicated ‘Religious Formation is, by definition, the formation of a person’s faith life, and includes the teaching of dogma, the traditions and ritual of the Catholic Faith and instruction in religious truths and values as an integral part of building a life of faith and Christian attitudes.’ (Appellant’s App. at 208.) Thus, even Appellant’s job title as the director of the Department of Religious Formation indicates her importance to the spiritual and pastoral mission of church, especially when considered in conjunction with her statement, taken from her employment application, that she wished ‘to use [her] talents and experience in education to promote the Catholic faith through [her] leadership as Director of Religious Formation.’ (Appellees’ Supplemental App. at 6.) ” [Emphasis added.]

Following the standards laid out in Rayburn v. Gen. Conference of Seventh-Day Adventists, 772 F.2d 1164, 1169 (4th Cir. 1985), the Tenth Circuit affirms that the employee failed to present a genuine issue of material fact about whether she was covered by the ministerial exception. The plaintiff attempted to get around the problem by submitting affidavits from witnesses that her duties were primarily administrative and not spiritual. Writes the panel,

“these affidavits are exactly the type of conclusory affidavits that are insufficient to overcome summary judgment. Even if we accept these affidavits are based on personal knowledge, they do not set forth any facts, admissible or otherwise, that a court could consider as raising a material issue of fact. Instead, each affidavit merely parrots a general rule that a court could consider in determining the ministerial exception’s application and then states, in the affiant’s opinion, the legal conclusion the court should reach. Accordingly, we hold the district court did not err in its determination that Appellant was a minister for purposes of the exception.”

Finally, the panel declares its disapproval of a Ninth Circuit opinion, Elvig v. Calvin Presbyterian Church, 375
F.3d 951 (9th Cir. 2004), which recognized a partial counter-exception for claims that supposedly do not infringe on church autonomy, e.g., harrassment claims, where it is not part of the spiritual mission of the church to accept or tolerate harassment. “[We are not inclined to agree with the Ninth Circuit’s reasoning that a hostile work environment claim brought by a minister does not implicate a church’s spiritual functions. Rather, we believe that allowing such a claim may, as Judge Trott stated in his dissent from Elvig, ‘involve gross substantive and procedural entanglement with the Church’s core functions, its polity, and its autonomy.'” 

Narayan v. EGL, Inc., No. 07-16487 (9th Cir. July 13, 2010):  The plaintiffs in this case were freight pick-up and delivery drivers in California who, as a condition of driving for the company, signed putative contracts stating that (1) the “intention of the parties is to . . . create a vendor/vendee relationship between Contractor and [EGL]”; (2) “[n]either Contractor nor any of its employees or agents shall be considered to be employees of [EGL]”; (3) Drivers “shall exercise independent discretion and judgment to determine the method, manner and means of performance of its contractual obligations,” although EGL retrained the right to “issue reasonable and lawful instructions regarding the results to be accomplished”; and (4) that the contracts were to be construed under the law of Texas. 

The district court applied these contracts to grant summary judgment against claims by the drivers under the California Labor Code seeking money damages for unpaid overtime wages, business expenses, meal compensation and unlawful deductions from wages, and statutory penalties. But the Ninth Circuit reverses. Applying the forum state’s choice of law principles, it finds that Texas law – notwithstanding the choice-of-law clause – did not govern the drivers’ entitlement to protection under the Labor Code:

“The Drivers’ claims involve entitlement to benefits under the California Labor Code. Whether the Drivers are entitled to those benefits depends on whether they are employees of EGL, which in turn depends on the definition that the otherwise governing law-not the parties-gives to the term ’employee.’ While the contracts will likely be used as evidence to prove or disprove the statutory claims, the claims do not arise out of the contract, involve the interpretation of any contract terms, or otherwise require there to be a contract.”

The panel then observes under California law that “once a plaintiff comes forward with evidence that he provided services for an employer, the employee has established a prima facie case that the relationship was one of employer/employee. . . . Once the employee establishes a prima facie case, the burden shifts to the employer, which may prove, if it can, that the presumed employee was an independent contractor.” And because the plaintiffs’ met that threshold, EGL could only win summary judgment if it could show – following a multi-factor test under California state law – that the drivers were independent contractors.

The panel approvingly quotes a concurring opinion by (now-Chief) Judge Frank Easterbrook of the Seventh Circuit about the propriety of summary judgment when faced with such a standard: “[i]f we are to have multiple factors, we should also have a trial. A fact-bound approach calling for the balancing of incommensurables, an approach in which no ascertainable legal rule determines a unique outcome, is one in which the trier of fact plays the principal part. That there is a legal overlay to the factual question does not affect the role of the trier of fact. Sec’y of Labor v. Lauritzen, 835 F.2d 1529, 1542 (7th Cir. 1987) (Easterbook, J., concurring).” Thus, upon an exhaustive assessment of the summary judgment record, ‘under California’s multi-faceted test of employment, there existed at the very least sufficient indicia of an employment relationship between the plaintiff Drivers and EGL such that a reasonable jury could find the existence of such a relationship.”

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