Christopher Orr v. Christian Brothers High School ( 2021 )

FILED
NOT FOR PUBLICATION
NOV 23 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER ORR, No. 21-15109
Plaintiff-Appellant, D.C. No.
2:20-cv-00177-JAM-CKD
v.
CHRISTIAN BROTHERS HIGH MEMORANDUM*
SCHOOL, INC., a California corporation;
LORCAN BARNES, an individual,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted November 16, 2021
San Francisco, California
Before: THOMAS, Chief Judge, McKEOWN, Circuit Judge, and RESTANI,**
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.
Christopher Orr appeals the district court’s summary judgment ruling
dismissing his racial harassment, race discrimination, retaliation, and wrongful
termination claims against Lorcan Barnes and Christian Brothers High School, Inc.
under Title VII of the Civil Rights Act of 1964, Section 1981 of the Civil Rights
Act of 1866, the California Fair Employment and Housing Act, and California
common law. We have jurisdiction pursuant to 28 U.S.C. § 1291. Because the
parties are familiar with the history of this case, we need not recount it here. We
review orders granting motions for summary judgment de novo. A.G. v. Paradise
Valley Unified Sch. Dist. No. 69, 815 F.3d 1195, 1202 (9th Cir. 2016). We affirm.
I
The district court correctly concluded that Orr qualified as a minister for the
purposes of the ministerial exception. The Supreme Court has broadly defined
what employment positions are eligible for application of the exception. In
determining whether employees at religious schools are ministers, the Supreme
Court has explained that the core consideration is their “role in conveying the
Church’s message and carrying out its mission.” Our Lady of Guadalupe Sch. v.
Morrissey-Berru, 140 S. Ct. 2049, 2063 (2020) (citing Hosanna-Tabor
Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 192 (2012)).
“[E]ducating young people in their faith, inculcating its teachings, and training
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them to live their faith are responsibilities that lie at the very core of the mission of
a private religious school.” Id., at 2064. Thus, in Hosanna-Taylor and
Morrissey-Berru, the Supreme Court held that many teachers at religious schools
qualified as “ministers” for the purposes of the exception, even though they were
not considered formal ministers.
Here, Orr played an important role in the religious education and formation
of the students at Christian Brothers. Orr participated in religious services and
activities, aiding the school in developing a faith-based community and inculcating
faith-based teachings. He had supervisory authority over aspects of religious
instruction and programming. He also received religious education as part of his
role. In the context of the ministerial exception, there is no principled distinction
to be drawn between teachers and principals. Thus, under the Supreme Court’s
formulation of the ministerial exception, Orr qualified for its application to him.
II
Given that Orr qualified for application of the ministerial exception, and the
factual allegations underlying Orr’s harassment claims, the district court properly
concluded that his employment claims were barred by the exception.
Orr asserted claims under Title VII of the Civil Rights Act of 1964, Section
1981 of the Civil Rights Act of 1866, the California Fair Employment and Housing
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Act, and California common law. The “ministerial exception” to application of
employment laws to religious institutions arose from the First Amendment’s
protection of the right of churches and other religious institutions to decide
“matters of church government as well as those of faith and doctrine” without
government intrusion. Morrissey-Berru, 140 S. Ct. at 2055 (citation omitted). The
ministerial exception “insulates a religious organization’s employment decisions
regarding its ministers from judicial scrutiny under Title VII.” Werft v. Desert
Southwest Annual Conference of United Methodist Church, 377 F.3d 1099,
1100–01 (9th Cir. 2004). Thus, Orr’s employment claims are precluded by the
ministerial exception.
There are certain employment claims that are not necessarily subject to the
ministerial exception. For example, in Bollard v. California Province of the
Society of Jesus, 196 F.3d 940, 947 (1999), we held that a sexual harassment claim
unrelated to a religious organization’s employment decisions was not subject to the
ministerial exception. See also Elvig v. Calvin Presbyterian Church, 375 F.3d 951,
959–66 (9th Cir. 2004) (holding that sexual harassment and retaliatory harassment
claims survived the ministerial exception).
In this case, Orr has asserted claims of racial harassment that created a
hostile work environment. Applying the Bollard/Elvig framework, such a claim
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could survive the ministerial exception. However, unlike the circumstances in
Bollard and Elvig, the allegations here are so intertwined with the employment
decisions that the claims cannot be separated. See Elvig, 3675 F.3d at 960
(explaining that courts may not scrutinize employment actions, which are protected
from Title VII liability).
III
The district court properly concluded that Christian Brothers did not waive
the California Fair Employment & Housing Act’s (“FEHA”) statutory exemption
for non-profit religious corporations. Christian Brothers’ employee handbook
“never explicitly references FEHA” and “makes no promise that [it] will be bound
by FEHA.” Mathews v. Happy Valley Conference Center, Inc., 43 Cal. App. 5th
236, 258 (2019). Thus, there was no waiver of the religious entity statutory
exemption, which applies to Orr’s state statutory claims.
IV
In sum, Orr’s employment position qualifies for application of the
ministerial exception under Supreme Court precedent. The exception precludes his
employment claims. Under the factual circumstances presented by this case, the
Bollard/Elvig exception for hostile work environment, harassment, and retaliation
5
does not apply. The state statutory claims are precluded by the statutory exemption
for non-profit religious corporations.
AFFIRMED.
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