PITTSBURGH – A federal court has partially adopted a magistrate judge’s recommendation that it not approve the Diocese of Greensburg’s attempt to dismiss litigation from a sixth-grade teacher, allegedly fired from Aquinas Academy once his employer learned of his same-sex marriage.
Kenneth Ference first filed suit in the U.S. District Court for the Western District of Pennsylvania on June 1, 2022 versus the Roman Catholic Diocese of Greensburg. Both parties are of Greensburg.
“Ference began working at defendant’s Aquinas Academy as a sixth-grade teacher on Aug. 23, 2021. As part of the new-hire orientation, Ference had to complete several standard employment forms. He completed most of them on Aug. 25, 2021, during a meeting with Maria Cochenour, Aquinas’s Business Manager. Cochenour indicated that he would receive the medical insurance election forms in an email from defendant’s main office. 10. Unbeknownst to Ference, defendant sent those forms to his Aquinas email address, which he did not have access to until Sept. 2, 2021,” the suit said.
“Once Ference had access to his email, he completed an election to waive group medical insurance on Sept. 2, indicating that he is covered under his husband's medical insurance. Also, as part of his orientation, Ference completed Virtus training, which included a program called Protecting God’s Children. Those trainings concerned the prevention of child sexual abuse. As a sixth-grade teacher, Ference reported to Kelly Watkins, Principal of Aquinas Academy. Because Ference is Lutheran, Watkins said that the defendant prohibited him from providing religious education to its students.”
According to Watkins, Ference’s job responsibilities were to be purely secular, with all matters of religious education and rituals for the sixth-grade students to be handled by Jennifer Davis, Aquinas’s other sixth-grade teacher.
Watkins also asked Ference if he would be comfortable chaperoning the students to church services, to which Ference agreed, with the understanding that he would be at the services only to monitor the students’ behavior.
“Watkins accepted that arrangement, and Davis took the lead at church services with any rituals and religious materials. As part of a standard school day, Aquinas started and ended with prayers. Cochenour led the students in prayer over Aquinas’s PA system. Ference had no role in facilitating these prayers. As per Watkins’s instructions, Ference taught secular subjects to his students for the duration of his employment with Aquinas,” the suit stated.
“Davis handled all religious matters for the sixth-grade students. On Sept. 28, 2021, Dr. Maureen Marsteller, defendant’s Superintendent of Catholic Schools, informed Ference that defendant terminated his employment because he is in a same-sex relationship. Defendant learned of that fact from Ference’s disclosure on his election to waive group medical insurance. As a result of defendant’s conduct, plaintiff has suffered substantial mental anguish, emotional distress, and economic damages.”
The Diocese filed a motion to dismiss the complaint on Aug. 1, charging that it was well within its rights to terminate Ference’s employment, once it learned of his same-sex relationship.
“Plaintiff signed multiple documents acknowledging that, as a Catholic school teacher, he: was considered church personnel; recognized the religious nature of his employer and position; could be terminated for violating Catholic doctrine, including Catholic beliefs regarding homosexuality and marriage; would serve the purpose of Catholic ministry within classroom and extracurricular instruction; and would have to comport his behavior with canon law and the code of pastoral conduct. Plaintiff waived his ability to receive medical benefits from Diocese. In doing so, he disclosed that he was married to a man. The Diocese then terminated plaintiff,” per the motion to dismiss.
“Plaintiff claimed that Diocese wrongfully terminated him under Title VII due to his sexual orientation. If Diocese was a secular school, plaintiff’s claim would be colorable. But Diocese’s religious status exempts it from Title VII’s prohibition of discrimination based on failure to comport with Diocese’s religious views. Two doctrines connected to the First Amendment also preclude plaintiff’s suit: church autonomy and the ministerial exception. Finally, the Religious Freedom Restoration Act forbids plaintiff from using the federal judiciary as a coercive instrument to overcome Diocese’s sincerely held religious beliefs on sexuality and marriage.”
The Diocese added that the plaintiff “contradictorily recognized Diocese’s anti-homosexuality and anti-same-sex-marriage religious beliefs when he signed his professional services agreement and acknowledgment of receipt of the code of pastoral conduct.”
“If the Court rules in plaintiff’s favor, it will force Diocese to employ teachers in its Catholic schools whose conduct violates Catholic religious precepts or will penalize Diocese for not employing such teachers. Such a result would eviscerate the First Amendment of the U.S. Constitution,” the motion to dismiss said.
Ference’s counsel filed a brief in opposition to the dismissal motion on Aug. 22.
“Defendant’s attempt to frame Ference’s termination as an act of religious discrimination must fail given the admitted role his sex played in the termination decision defendant’s ‘labels and additional intentions’ do not change the outcome. The flaws in defendant’s argument are especially obvious when its interpretation of Title VII is played out to its fullest. Under defendant’s interpretation, it is permitted to fire a secular employee for any discriminatory reason, such as an interracial marriage, by using the cover of religious discrimination. That interpretation far exceeds the plain reading of Title VII mandated by the Third Circuit,” the opposing brief stated.
“Defendant’s reliance on forms signed by Ference related to complying with its views on homosexuality does not cure the discrimination in this case. An employee cannot prospectively waive their right to be free from discrimination under Title VII. Also, given that defendant relies on documents outside the complaint and outside the public record, defendant actually seeks summary judgment under Federal Rule of Civil Procedure 12(d) rather than to dismiss the claim under Federal Rule of Civil Procedure 12(b)(6).”
Subsequent to the trial court hearing oral argument regarding the dismissal motion on Jan. 9, U.S. Magistrate Judge Maureen P. Kelly issued a report and recommendation on Jan. 18, suggesting that the dismissal motion not be approved by the Western District Court.
“Title VII of the Civil Rights Act of 1964 makes it an unlawful employment practice to discriminate against someone on the basis of race, color, national origin, sex, or religion in any aspect of employment, including hiring and firing. The U.S. Supreme Court has unequivocally held that sex discrimination includes discrimination based on sexual orientation and gender identity. The Diocese first moves to dismiss Ference’s complaint pursuant to the religious exemptions set forth in Sections 702(a) and 703 of Title VII,” Kelly stated.
“Title VII’s exemption for discrimination based on an employee’s religion may not be relied on to excuse an allegedly unlawful employment practice based on the employee’s sex (including sexual orientation), race, color, or national origin. In this case, if proven, the facts alleged would permit a jury to conclude that the Diocese’s decision to terminate Ference was not based on his religious preferences, but on his sexual orientation. Thus, under the plain meaning of the statutory text, Sections 702 and 703 do not bar his claim and Ference states a claim upon which relief may be granted.”
Furthermore, Kelly explained that the Church’s second cited exemption, the “church autonomy doctrine” arising under the Religion Clauses of the First Amendment, argues for “an expansive application of the church autonomy doctrine to all matters of employment at Aquinas, regardless of the employee’s role, so long as the decision is ‘rooted in religious belief.”
However, Kelly said that such an argument is an affirmative defense and inappropriate at this stage of the litigation – that in contrast, application of the doctrine “requires a factual determination of the scope of Ference’s employment to determine whether his role implicates matters of church governance or is essential to Aquinas’s religious mission.”
As to the ministerial exception and an exception per the Religious Freedom Restoration Act, the third and fourth cited exemptions, respectively, Kelly found they too did not apply at this juncture.
“In the instant case, no discovery has taken place and the Diocese moves for dismissal based on its description of Ference’s faith-directed employment as a sixth-grade teacher in a Catholic elementary school. Yet, at this initial stage of the litigation, Ference’s allegations must be accepted as true that the Diocese required that he serve no role in faith formation and that none of his responsibilities related to religious instruction. The well-pleaded factual allegations therefore remove Ference from the scope of the ministerial exception, and he states a plausible claim for relief under Title VII. Accordingly, the motion to dismiss based on the ministerial exception should be denied, but the issue may be revisited upon a more fully developed record at the summary judgment stage,” Kelly said.
“The Diocese next requests dismissal with prejudice under the RFRA. RFRA ‘prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest.’ An ‘appropriate’ case, however, would require the participation of the government as a party given that the relief afforded may be obtained only ‘against a government.’ Ference is a private individual pursuing a private claim for discrimination based on his sexual orientation. Thus, by its terms, the Diocese cannot obtain judicial relief from him. Thus, the necessary factual demonstration is to be borne by the ‘government” and not a private party. And, as RFRA also provides, the required analysis presupposes the existence of a factual record which is not present in this case, at this early stage of the litigation. Thus, in the absence of the government as a party and the presentation of evidence of a compelling interest by it, the Diocese cannot rely upon the RFRA to avoid Ference’s claims in this action, and dismissal on that basis is not properly entered.”
Both sides debated objections to Kelly’s report in filings dated Feb. 1 and Feb. 16.
UPDATE
U.S. District Court for the Western District of Pennsylvania Judge J. Nicholas Ranjan opted to adopt Kelly’s report and recommendation in part, in a May 8 memorandum opinion.
While Ranjan sustained the Diocese’s objection that Kelly should have considered Ference’s employment documents in making her recommendation, he overruled the Diocese’s other objections in their entirety.
“The claims in the complaint are based on, at a fundamental level, Ference’s employment at Aquinas Academy. The terms of that employment are established by the Professional Services Agreement that he signed. Therefore, his employment contract, its attachments, and the other onboarding forms, are properly considered at the motion to dismiss stage because they are integral to the claims here. The Court will therefore sustain the Diocese’s objection and consider those documents in deciding whether to adopt the rest of the R&R,” Ranjan opined.
“There is nothing in the record, though, regarding the ‘religious organization’ factors mentioned above. Further, there’s nothing in the record regarding the specific doctrines and beliefs at issue and whether the employment decision was rooted in those religious doctrines and beliefs. Ference certainly doesn’t plead any of these necessary facts in his complaint, and the arguments of the Diocese’s counsel do not count. Similarly, the Diocese’s argument that the ‘church autonomy doctrine’ bars the claim is premature. That doctrine is predicated on a religious organization making personnel decisions ‘rooted in a religious belief.’ As with the Title VII exemptions, more factual development is needed on this defense – which the Magistrate Judge rightly noted is typically raised as an affirmative defense, not at the motion-to-dismiss stage. For these reasons, it would be premature for the Court to consider the merits of the Diocese’s arguments right now. The Diocese can raise its arguments on a more developed record at summary judgment. Having considered the Diocese’s remaining objections, the Court agrees with the Magistrate Judge’s analysis. Specifically, the Court finds it to be premature to consider the ministerial exception; and the Court finds that RFRA does not apply. Therefore, the Court will adopt these remaining sections of the R&R.”
For a count of violating Title VII of the Civil Rights Act of 1964, the plaintiff is seeking a declaration that the defendant’s conduct was unlawful and an intentional violation of plaintiff’s rights; wage loss damages, including back pay, front pay, and lost future earnings, damages associated with the increased tax burden of any award, and lost fringe and other benefits of employment; compensatory and punitive damages; pre- and post-judgment interest; costs and attorney’s fees and such other relief as the Court deems just and appropriate.
The plaintiff is represented by Nicholas W. Kennedy of Quatrini Law Group, in Greensburg.
The defendant is represented by Bernard P. Matthews Jr. and Alexander W. Brown of Meyer Darragh Buckler Bebenek & Eck in Greensburg, plus Philip J. Murren, David R. Dye and Katherine Fitz-Patrick of Ball Murren & Connell, in Camp Hill.
U.S. District Court for the Western District of Pennsylvania case 2:22-cv-00797
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com