PITTSBURGH – A federal magistrate judge has once again recommended that a Pennsylvania federal court 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.”
After a motion to dismiss the case from the defense and trading arguments regarding U.S. Magistrate Judge Maureen P. Kelly’s report and recommendation, U.S. District Court for the Western District of Pennsylvania Judge J. Nicholas Ranjan opted to adopt the R&R 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.”
The defense followed Ranjan’s decision with an answer to the complaint on May 22, charging in a long series of affirmative defenses that, among other protections, Ference signed a professional services agreement to adhere to Catholic teaching upon his hiring and that its constitutional right to religious freedom would be infringed upon, if Ference were to remain employed at the school.
“The Roman Catholic Church believes that its schools are the principal means for transmitting the Catholic faith to new generations of Catholics. Catholic schools do not segment their functions into religious and secular components; at all times, the Catholic school is engaged in the process of catechesis and the formation of the Christian personality, a process which is integrated within the curriculum of the Catholic schools. Civil courts have repeatedly recognized that Catholic schools, unlike public or nonsectarian schools, exist for a religious mission to which everything in the life and operation of the school is subordinate,” the answer stated, in part.
“Granting relief to plaintiff will force Diocese and Aquinas to employ teachers in its Catholic schools whose conduct violates Catholic religious precepts or will penalize Diocese and Aquinas for not employing such teachers. Such a result would eviscerate the First Amendment of the United States Constitution. The Court should dismiss plaintiff’s Title VII claim with prejudice because it is not cognizable per the ministerial exception. If the Court determines that Title VII and doctrines arising under the First Amendment do not defeat Plaintiff’s suit, then the Court should hold that the Religious Freedom Restoration Act (RFRA) bars plaintiff’s Title VII Claim. RFRA applies to Diocese and Aquinas as their religious practices would be substantially burdened by Title VII – an Act of Congress – by penalizing them for making a religious-based employment decision.”
On June 26, the Diocese motioned to bifurcate the discovery process in the case, arguing that such a move was necessary “to protect its First Amendment interests while focusing a factual inquiry on whether Title VII’s religious exemptions, the ministerial exception or the church autonomy doctrine preclude plaintiff Kenneth Ference’s suit.”
“Counsel for the Diocese discussed bifurcating or limiting discovery with Mr. Ference’s counsel during the Rule 26(f) meeting so that a factual record is developed to first determine if the Diocese (and Aquinas Academy in particular) is exempt from Title VII under the religious exemptions and whether the ministerial exception or church autonomy doctrine applies. The Diocese is filing this motion because Mr. Ference’s counsel has not agreed to bifurcate or limit discovery to the above subjects and instead seeks wide-ranging discovery into the Diocese’s application of religious doctrine to Mr. Ference’s termination as compared to the Diocese’s other employment decisions regarding lay teachers,” the bifurcation motion stated.
“Discovery should be divided into two phases: (1) Developing a record to adjudicate the Diocese’s Title VII religious exemption, ministerial exception and religious autonomy defenses in a summary judgment motion; and (2), if Mr. Ference’s suit survives the Diocese’s summary judgment motion, developing a record as to liability and damages. Bifurcating or limiting discovery in this fashion would protect the Diocese’s First Amendment rights under the Religion Clauses while also being consistent with the Court’s order sustaining, in part, the Diocese’s objections to the report and recommendation denying the Diocese’s motion to dismiss.”
In contrast, counsel for Ference opposed the motion on the grounds that bifurcation is “unwarranted and premature”, pointing out that “the Diocese is seeking to exclude basic Title VII liability and damages discovery” and the bifurcation motion was “an attempt to re-litigate the motion to dismiss.”
However, Kelly denied the bifurcation motion in a memorandum opinion issued on June 29.
“Against this factually intensive inquiry, the Court finds that bifurcation is not warranted. It appears that the same witnesses will be deposed as to Mr. Ference’s claims and the Diocese’s defenses and written discovery requests will cover overlapping information. Should the Court determine that there are material factual disputes that preclude entry of summary judgment, bifurcation would prejudice Mr. Ference in the form of delay and additional costs incurred to litigate multiple phases of this litigation that otherwise would occur simultaneously,” Kelly said.
“Thus, the Diocese has not established that bifurcation will permit this litigation to proceed efficiently, cost-effectively, and without prejudice to Mr. Ference’s ability to investigate the factual basis of his claims as contemplated by Rule 26(b). Accordingly, for the reasons stated herein, it is hereby ordered this 29th day of June 2023 that the Diocese’s motion to bifurcate or limit discovery, is denied.”
UPDATE
After an amended complaint was filed on July 11 and a renewed dismissal motion from the defendants was filed on July 25, where they contended the recent U.S. Supreme Court in 303 Creative LLC v. Elenis, controls the outcome and requires dismissal of plaintiff’s claims with prejudice.
In 303 Creative, the Supreme Court held (on stipulated facts) that the State may not force someone who provides expressive services ‘to abandon her conscience and speak its preferred message instead.’ Thus, Colorado “could not enforce its Anti-Discrimination Act to require a website designer to use her customized and original artwork to convey a message inconsistent with her belief that marriage should be reserved to unions between one man and one woman.”
The defendants say this basis allowed them to fire Ference, whose marriage, in their minds, was not in alignment with Catholic beliefs, an argument which the plaintiff opposed in a response brief.
On Oct. 11, Kelly issued a report and recommendation which stated that the Diocese’s renewed dismissal motion should be denied.
“The parties’ arguments aside, defendants’ pending motion to dismiss again ignores the procedural posture of the case. As the Court held when it denied defendants’ motion to dismiss Mr. Ference’s initial complaint: ‘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. Mr. Ference certainly doesn’t plead any of these necessary facts in his complaint, and the arguments of the Diocese’s counsel do not count,” Kelly said.
“The state of the record has not changed. Thus, it is premature to consider defendants’ arguments related to 303 Creative that necessarily rely on their religious beliefs ‘and whether that relief belief was the reason that Mr. Ference was terminated.’ For the foregoing reasons, it is respectfully recommended that the motion to dismiss be denied.”
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