WENDY OSTLUND, Complainant
COULEE CATHOLIC SCHOOLS, Respondent
Wendy Ostlund was employed as a first grade elementary teacher at St. Patrick's Elementary School in Onalaska, Wisconsin, from 1974 until June 2002. Apparently sometime in the 1990's St. Patrick's School, which had been owned and operated by St. Patrick's Parish, became a part of the Coulee Catholic Schools system, an entity of the Catholic Diocese of La Crosse, a religious corporation. In March 2002, Ostlund was notified that "due to the implementation of a Reduction in Force program, you will not be offered a Coulee Catholic Schools contract for the 2002-2003 school year."
On July 29, 2002, Ostlund filed a complaint of age discrimination with the ERD. Ostlund's complaint listed her age as 53. In response to the complaint, the respondent asserted that under the WFEA the State may not infringe upon First Amendment issues involving freedom of religion where the employee holds a ministerial or ecclesiastical position with the church; that the position that Ostlund occupied was essentially, primarily and inherently a ministerial position involving the teaching of religion, a position which the Wisconsin courts have determined that the ERD has no jurisdiction to investigate. The respondent further asserted that Ostlund was selected for the reduction in force because she does not have a degree in elementary education nor does she possess certification as an elementary school teacher, Grade 1.
The ERD issued a no probable determination on March 6, 2003. Following Ostlund's appeal of the no probable determination and certification of the matter to hearing, the respondent moved to dismiss Ostlund's complaint on jurisdictional grounds, arguing that Wisconsin courts have prohibited the State from conducting an investigation into a position which is ministerial or ecclesiastical, as doing so would intrude upon the respondent's First Amendment rights.
Based solely upon pre-hearing written arguments submitted by the parties, the ALJ denied the respondent's motion to dismiss in a written ruling issued on July 15, 2003. However, in response to a motion made by the respondent for a bifurcated hearing in which the respondent could address the jurisdictional issue first, the ALJ subsequently advised the parties by letter dated December 2, 2003, of the scheduling of a hearing for that purpose. This hearing was eventually held on May 11, 2004. In a decision dated December 17, 2004, the ALJ again denied the respondent's motion to dismiss for lack of subject matter jurisdiction by the ERD concluding as follows: (1) That Ostlund's position as a first grade teacher was not a ministerial position as that term is used for purposes of considering whether a state adjudication interferes with the free exercise of religion under the First Amendment to the U.S. Constitution; (2) that the administrative adjudication of this complaint will not violate the respondent's rights under the First Amendment to the U.S. Constitution; and (3) that the ERD has subject matter jurisdiction over this complaint. Accordingly, the ALJ ordered that the matter be scheduled for a hearing on whether there was probable cause to believe that the respondent had violated the Act by terminating Ostlund's employment because of age.
The respondent filed a petition for commission review of the ALJ's decision. The commission issued a decision on March 3, 2005, concluding that it had no authority to review the respondent's petition for review of the ALJ's decision because the ALJ's decision was not a final decision as defined under DWD § 218.21(1) (i.e., it did not dispose of the entire complaint and leave no further proceedings on that complaint pending before the commission) and therefore not appealable to the commission.
The respondent disagreed with the commission's conclusion and petitioned the circuit court for: (1) a review of the commission's decision not to review the ALJ's decision; or, alternatively for (1) a writ of prohibition to prevent any further action on Ostlund's complaint of discrimination until the jurisdictional question has been fully litigated; or (2) a declaratory judgment that Ostlund's employment position is ministerial and any proceedings related thereto violated the respondent's First Amendment rights.
The court granted the respondent's petition for review and, because of the constitutional concerns presented, by decision dated October 20, 2005, granted the petition for a writ of prohibition to delay any investigation until the jurisdictional review is completed. The court stated, "Any investigation into the discrimination claim itself must wait until a final administrative decision, and judicial review of that, if sought, of whether Ostlund's position was ministerial or not."
The commission has therefore considered the respondent's petition for review and the position of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusions in that decision as its own.
The decision of the administrative law judge (copy attached) is affirmed. Accordingly, this matter shall be scheduled for a hearing on whether probable cause exists to believe that the respondent violated the Wisconsin Fair Employment Act by terminating the employment of Wendy Ostlund because of her age.
Dated and mailed February 28, 2006
ostluwe2 . rpr : 125 : 9
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The First Amendment to the United States Constitution provides in relevant part as follows:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ...
The Free Exercise Clause of the First Amendment is concerned with whether a statute's enforcement would impose an impermissible burden on the respondent's exercise of religion. The Establishment Clause is concerned with whether application of the statute would impermissibly entangle church and state relationship.
The commission believes that the essence of the ALJ's decision is contained in finding of fact no. 25 and his memorandum opinion, which read as follows:
25. As a first grade teacher in St., (sic) Patrick's School, Ms. Ostlund's primary duty was to instruct her students in a core of disciplines, consisting of reading, social studies, science, math, handwriting and religion. Although she taught religion for about one half-hour four times per week, led brief prayers about twice per day, at times made references to religious symbols as aids when teaching core subjects other than religion, occasionally incorporated a religious theme into her social studies classes, prepared her students several times per year to present a liturgy and supervised them during their attendance at weekly liturgies, all these religiously-related activities did not constitute her primary duty.
. . .
In Jocz v. LIRC, 196 Wis.2d 273, 538 N.W.2d 588 (Ct. App. 1995), the Court of Appeals set out what appears to be a general rule for deciding when the state fair employment act can be applied against religious associations:
Thus, we conclude that the State, and therefore the Department, is prevented from enforcing the state's employment discrimination laws against religious associations when the employment position at issue serves a "ministerial" or "ecclesiastical" function. [Citing Rayburn v. General Conf. Of Seventh-Day Adventists, 772 F.2d 1164, 1165 (4th Cir. 1985), cert. denied, 478 U.S. 1020 (1986), and McClure v. Salvation Army, 460 F.2d 553, 560-61 (5th Cir. 1972)]
The concept of the ministerial exception, first enunciated in McClure, has been a judicial shorthand for determining the constitutional question of whether a particular adjudication interferes with the free exercise rights of a religious association. Guinan v. Roman Catholic Archdiocese of Indianapolis, 42 F.Supp.2d 849, 853 (S.D.Ind. 1998); EEOC v. Catholic University, 83 F.3d 455, 467 (D.C. Cir. 1996). In an adjudication under anti-discrimination laws, which clearly have a secular purpose and do not promote or inhibit religion, the question of whether the adjudication would interfere with the free exercise rights of a religious association comes down to a question of whether the adjudication would create excessive government entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 29 L.Ed. 745, 91 S.Ct. 2105 (1971); Geary v. Visitation of the Blessed Virgin Mary Parish School, 7 F.3d 324 (3rd Cir. 1993). A full inquiry into the constitutional question, then, ought to involve more than a simple determination of whether the position at issue is "ministerial." It ought to also involve at least two other considerations: (1) whether the inquiry into the association's actions is limited as opposed to ongoing; and (2) whether there is any conflict between the law's prohibitions against discrimination and any religious doctrine of the association. Geary, at 327-28. Applied to this case, these two considerations favor the Complainant. First, as in Geary, the inquiry in this case is whether a one-time decision not to renew Ms. Ostlund's contract was based on her age. This is a limited inquiry, quite unlike the potential of ongoing supervision in, say, NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 59 L.Ed.2d 533, 99 S.Ct. 1313 (1979). Second, as in Grotke v. Canisius High School, 1992 U.S.Dist. LEXIS 12299 (WDNY), the Respondent here has not asserted a religious reason for its termination of Ms. Ostlund's employment. These two considerations are certainly relevant to a determination of whether the adjudication would impermissibly entangle government with religion. Furthermore, it is not inconsistent with Jocz to consider them. Jocz was clearly drawing on the holdings of McClure and Rayburn, and those two decisions were clearly using the concept of the ministerial exception as a tool to analyze the root-problem of whether an adjudication against a religious association under anti-discrimination laws caused governmental entanglement with religion.
Nevertheless, even if one were to focus only on the words from Jocz quoted above, and simply ask the question of whether Ms. Ostlund's position serves a ministerial or ecclesiastical function, one would conclude that it does not, as that term is used in Jocz. Taking language from Rayburn, supra, the court in Jocz states:
As a general rule, if the employee's primary duties consist of teaching, (1) spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual or worship, he or she should be considered ["ministerial" or "ecclesiastical"].
Jocz, at 303. The Respondent's arguments that Ms. Ostlund's job fits the above description depend heavily on a number of exhortations by the diocese that its teachers serve as models of the beliefs of the religion, and infuse their instruction of secular subjects with religious instruction. Following these directives certainly sets a teacher in St. Patrick's apart from a teacher in a public school, but it doesn't displace the teacher's primary duty to teach a curriculum of coursework in subjects that are not religious, but are, in fact, the core disciplines that any student in the first grade needs to learn in order to progress through the educational system, whether it be public or Catholic. (2) Measured by the amount of time Ms. Ostlund spent in non-religious versus religious activities, or by the number of religious versus non-religious functions contained in her job description and the evaluations of her performance of those functions, Ms. Ostlund's job was not primarily ministerial. In practical terms, the idea that, as a teacher Ms. Ostlund should try to infuse religion into her secular school subjects, and should strive to create a religious "atmosphere" in her class, meant that, while she performed her primary duty of teaching the typical, secular school curriculum, she occasionally made references to moral or religious lessons, or to religious symbols or rituals. This did not make her job ministerial. Not one example in case law has been cited for holding that a teacher employed by a religious association who taught something other than exclusively religious subjects had a ministerial position, preventing adjudication of a complaint under an employment discrimination law (other than for discrimination on the basis of religion). On the other hand, a number of court decisions considering this issue have found that the position was not ministerial and/or that there was no unconstitutional entanglement with the free exercise clause. Geary, supra; Grotke, supra; Guinan, supra; Nigrelli v. Catholic Bishop of Chicago, No. 84-C-5564, 1991 WL 36712 (N.D.Ill. March 14, 1991); DeMarco v. Holy Cross High School, 4 F.3d 166 (2nd Cir. 1993); EEOC v. Fremont Christian School, 781 F.2d 1362 (9th Cir. 1986). The following observation of the court in Guinan, supra at 853, appears to be accurate:
...the application of the ministerial exception to non-ministers has been reserved generally for those positions that are, at the very least, close to being exclusively religious based, such as a chaplain or a pastor's assistant.
For these reasons the Equal Rights Division has jurisdiction to hear Ms. Ostlund's age discrimination complaint against the Respondent.
(Emphasis in original.)
As noted above, the ALJ indicates that in adjudication of anti-discrimination laws that clearly have a secular purpose and do not promote or inhibit religion, the question of whether the adjudication would interfere with the free exercise rights of a religious association comes down to a question of whether the adjudication would create excessive government entanglement with religion and therefore a full inquiry into the constitutional question ought to involve more than a simple determination of whether the position at issue is "ministerial." The ALJ then goes on to state that the inquiry should involve at least two other considerations: (1) whether the inquiry into the association's actions is limited as opposed to ongoing; and (2) whether there is any conflict between the law's prohibitions against discrimination and any religious doctrine of the association.
The second additional inquiry cited by the ALJ is a reference to the religious association's stated reason for the action that it has taken. In this case, this would involve the respondent's assertion that Ostlund's employment was terminated due to a reduction in force and because she does not have a degree in elementary education, nor does she possess certification as a first grade teacher.
The ALJ further concluded that consideration of the reason for Ostlund's termination was not inconsistent with Jocz because Jocz was clearly drawing on the holdings of McClure and Rayburn, and those two decisions were clearly using the concept of the ministerial exception as a tool to analyze the root-problem of whether an adjudication against a religious association under anti-discrimination laws caused governmental entanglement with religion.
The respondent argues just the opposite, asserting that consideration of the reason for Ostlund's termination is inconsistent with Jocz. Citing Jocz, the respondent argues that Wisconsin law does not provide for any inquiry into the reason for the termination; that the reason for termination is not part of the test to determine whether a position is ministerial. The respondent argues that once the position at issue is determined to be ministerial, further inquiry ceases and the complaint must be dismissed. The respondent argues:
Wisconsin law requires that when answering the ministerial question, "[i]f the agency or court concludes that the position is 'ministerial' or 'ecclesiastical,' further enforcement of the WFEA against the religious association is constitutionally precluded and the complaint should be dismissed." Jocz v. LIRC, 196 Wis.2d 302 (App. 1995). Jocz laid out the following test to determine whether a given position is ministerial or ecclesiastical: "[a]s a general rule, if the employee's primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual or worship, he or she should be considered ['ministerial' or 'ecclesiastical']." Id. at 303 (citation omitted). [The omitted citation was Rayburn, 772 F.2d at 1169 (quoting Bagni, Discrimination in the Name of the Lord: A Critical Evaluation of Discrimination by Religious Organizations. 79 Columbia L. Rev. 1514, 1545 (1979).]
The case of Perri v. Diocese of La Crosse, 1995 Wisc. App. LEXIS 1482, 198 Wis. 2d 389, 542 N.W.2d 238 (Ct. App. 1995), an unpublished opinion, lends support to the respondent's argument about what should and should not be considered. In Perri, the court stated:
The ministerial or ecclesiastical test we adopted in Jocz focuses on the nature of the position involved, not on the reason for the termination or nonrenewal, which was our approach in Black [v. St. Bernadette Congregation of Appleton, 121 Wis.2d 560, 360 N.W.2d 550 (Ct. App. 19840)] and Sacred Heart [Sch. Bd. v. LIRC, 157 Wis.2d 638, 460 N.W.2d 430 (Ct. App. 1990)]. "Emphasis on the [nature of the position] rather than the reasons for [the] rejection underscores our constitutional concern for the unfettered right of the church to resolve certain questions... In these sensitive areas, the state may no more require a minimum basis in doctrinal reasoning than it may supervise doctrinal content." Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164, 1169 (4th Cir. 1985), cert. denied, 478 U.S. 1020, 92 L. Ed. 2d 739, 106 S. Ct. 3333 (1986). While it is the court's duty to determine whether the position is ministerial or ecclesiastical, once the court has done so, it may not inquire whether the reason for the action has some grounding in theological belief. Id.
Although the Perri decision itself has limited authoritative value because it is an unpublished opinion, Perri cites language from Rayburn at 772 F.2d at 1169 -- that once a court has determined whether a position is ministerial it may not inquire about the reason for the action -- which seems to contradict the ALJ's conclusion that a full inquiry into the constitutional question ought to involve more than a simple determination of whether the position at issue is "ministerial."
Nevertheless, the commission believes the ALJ has reached the right decision. While the respondent argues that the requirements of "Wisconsin law" must be followed, "Wisconsin law", as set forth in Jocz and Perri is based on Rayburn and McClure, decisions by the Fourth and Fifth Circuits, respectively. Furthermore, the commission notes that since the Rayburn and McClure decisions a number of courts have in fact considered the employer's stated reason for its employment decision as part of the test to determine the First Amendment constitutional issue. See, e.g., Nigrelli v. Catholic Bishop of Chicago, 1991 U.S. Dist. LEXIS 3083 (N.D.Ill. March 14, 1991)("This court would not need to determine what the school board defines as adherence to the Catholic faith, in order to evaluate plaintiff's claim. The defendant's reasons for termination are not religious-based....There is also no doubt that in order to determine if the plaintiff was sexually harassed, the court need not inquire into the doctrines and religious goals of the Catholic Church nor of the school."); Grotke v. The Canisius High School of Buffalo, New York, 1992 U.S. Dist. LEXIS 12299 (W.D. NY. April 11, 1992)(Action under the ADEA in which the defendant intended to present evidence that it was forced to dismiss plaintiff because of budgetary constraints. Court stated, "[i]f true, this is a legitimate nondiscriminatory reason for discharge, inquiry into which will not present '...a significant risk that the First Amendment will be infringed.' " (citation omitted.); Martinelli v. Bridgeport Roman Catholic Diocesan Corporation, 196 F.3d 409, 431 (2d Cir. 1999)(Although " 'First Amendment values are plainly jeopardized when...litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice,' [internal citation omitted] neither the district court nor we have made any decision for or against any religious doctrine or practice. The Diocese points to no disputed religious issue which the jury or the judge in this case was asked to resolve."); Bollard v. California Province of the Society of Jesus, 196 F.3d 940, 947 (9th Cir. 1999)(Where the church provides no doctrinal nor protected-choice based rationale for its alleged actions, and indeed expressly disapproves of the alleged actions, a balancing of interests [between church and state] strongly favors application of [Title VII]); Longo v Regis Jesuit High School Corp., 2006 U.S. Dist. LEXIS 4142 (Jan. 2006)(Summary judgment denied in an ADA action by theology teacher against defendant following nonrenewal of contract. "None of the stated reasons for plaintiff's nonrenewal implicate church governance or doctrine, or relate to ecclesiastical discussion of church policy...because defendant intends to show that plaintiff was not renewed for legitimate, nondiscriminatory reasons other than his alleged disability, the inquiry will not present a significant risk that the First Amendment will be infringed....this Court cannot find that application of the ADA to defendant's employment decision with respect to plaintiff would necessitate an impermissible entanglement with religious doctrine prohibited by the First Amendment.")
There are also courts that have held to the contrary. See, e.g., Alicea-Hernandez v. Catholic Bishop of Chicago, 320 F.3d 698, 703 (7th Cir. 2003)(The ministerial exception precludes any inquiry whatsoever into the reasons behind a church's ministerial employment decision. The church need not, for example, proffer any religious justification for its decision, for the Free Exercise Clause protects the act of a decision rather than a motivation behind it); Fassl v. Our Lady of Perpetual Help Roman Catholic Church, 2005 U.S. Dist. LEXIS 22546 (E.D. Pa 2005)(To determine whether an employee should be considered a "minister" for purposes of applying [the ministerial exception], it is not proper for the court to consider whether the religious entity's motivation for its decision was religious or secular in nature, citing Alicea-Hernandez).
However, in the commission's opinion, certainly where the religious association's reason for its action do not implicate adjudication of a religious issue or require excessive entanglement with religion, it cannot fairly be argued that adjudication of a complaint against the religious association would result in a violation of the Free Exercise or Establishment Clauses of the First Amendment. Laura L. Coon expresses this very position in her Note, Employment Discrimination by Religious Institutions: Limiting the Sanctuary of the Constitutional Ministers Exception. 54 Vand. L. Rev. 481 (March 2001). Ms. Coon argues, "[T]he standard for determining whether a court should adjudicate a particular employment discrimination case involving a religious organization should focus on whether the court would have to examine religious doctrine or practice in order to resolve the particular claim. Such a standard is necessary in order to ensure that the constitutional ministerial exception only applies if the defendant has a legitimate First Amendment interest in exemption from the requirements of Title VII. If no question of religious doctrine or practice is implicated by adjudication of the plaintiff's employment discrimination claim, the defendant fails to satisfy the basic Free Exercise Clause requirement of a significant burden on religious exercise. In addition, a religious institution cannot plausibly argue that the Establishment Clause is violated when a court adjudicates a dispute involving purely secular conduct and motivation, because the state would not be entangling itself in religious matters." Id. at 485-486. See also, Thou Shalt Not Sue the Church: Denying Court Access to Ministerial Employees, 74 Ind. L.J. 269 (Winter, 1998) by Shawna Meyer Eikenberry, who argues that the Constitution may not necessitate a ministerial exception to Title VII and other anti-discrimination laws in cases in which the religious organization offers no religious justification for discriminatory employment action.
In any case, the ALJ further decided that even if one were to focus only on the question of whether Ms. Ostlund's position serves a ministerial or ecclesiastical function, one would conclude that it does not, as that term is used in Jocz.
The respondent asserted in its petition for review of the ALJ's decision that the ALJ's findings of fact are incomplete, apparently alluding to examples of various documentary and testimonial evidence submitted by it but not noted in the ALJ's decision in an effort to persuade the commission that Ostlund's position was ministerial. The commission has carefully considered this evidence but is not persuaded by it. At the risk of repeating a portion of the ALJ's memorandum statement, the commission believes the following best sums up this issue:
Measured by the amount of time Ms. Ostlund spent in non-religious versus religious activities, or by the number of religious versus non-religious functions contained in her job description and the evaluations of her performance of those functions, Ms. Ostlund's job was not primarily ministerial. In practical terms, the idea that, as a teacher Ms. Ostlund should try to infuse religion into her secular school subjects, and should strive to create a religious "atmosphere" in her class, meant that, while she performed her primary duty of teaching the typical, secular school curriculum, she occasionally made references to moral or religious lessons, or to religious symbols or rituals. This did not make her job ministerial. Not one example in case law has been cited for holding that a teacher employed by a religious association who taught something other than exclusively religious subjects had a ministerial position, preventing adjudication of a complaint under an employment discrimination law (other than for discrimination on the basis of religion). On the other hand, a number of court decisions considering this issue have found that the position was not ministerial and/or that there was no unconstitutional entanglement with the free exercise clause. Geary, supra; Grotke, supra; Guinan, supra; Nigrelli v. Catholic Bishop of Chicago, No. 84-C-5564, 1991 WL 36712 (N.D.Ill. March 14, 1991); DeMarco v. Holy Cross High School, 4 F.3d 166 (2nd Cir. 1993); EEOC v. Fremont Christian School, 781 F.2d 1362 (9th Cir. 1986). The following observation of the court in Guinan, supra at 853, appears to be accurate:
...the application of the ministerial exception to non-ministers has been reserved generally for those positions that are, at the very least, close to being exclusively religious based, such as a chaplain or a pastor's assistant.
(Emphasis in original.)
Also, the commission notes that the Guinan case has similarities to the instant case. Although a fifth grade teacher, the plaintiff, Ruth Ann Guinan, taught some religious courses in a Catholic school along with her secular classes, organized the Mass once a month and she perceived one of her principle duties to be "an example of Christianity."
For all of the above-stated reasons, the commission has affirmed the decision of the administrative law judge.
Attorney Dawn Marie Harris
Attorney James G. Birnbaum
Appealed to Circuit Court. Affirmed January 29, 2007. Appealed to the Court of Appeals. Certified to the Supreme Court, October 18, 2007 [Certification]. Certification refused, without opinion, December 19, 2007. Circuit Court decision affirmed, Coulee Catholic Schools v. LIRC and Ostlund , 2008 WI App 68, 312 Wis.2d 331, 752 N.W.2d 342. Petition for Supreme Court review granted, September 17, 2008. Reversed, Coulee Catholic Schools v. LIRC and Ostlund, 2009 WI 88, __ Wis. 2d __, __ N.W.2d __ (2009).
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(1)( Back ) Given the context of this language, the word "teaching" here can only mean teaching the faith. A more generalized meaning would not make sense.
(2)( Back ) The Respondent argues that the whole idea of establishing a separate school system was to infuse it with the Catholic faith, and religiosity indeed may be the essential feature distinguishing a Catholic education from a public school education, nevertheless the system that the diocese created is a system of education that for the most part mirrors a public school education in providing instruction in generally recognized core subjects appropriate to the ages of the children such that the children's advancement through different levels of the parochial system matches that of the public system.