Emily Herx v. Diocese of Fort Wayne-South Be , 772 F.3d 1085 ( 2014 )


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  •                                In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 14-3057
    EMILY HERX,
    Plaintiff-Appellee,
    v.
    DIOCESE OF FORT WAYNE–SOUTH BEND,
    INC. and ST. VINCENT DE PAUL SCHOOL,
    Defendants-Appellants.
    Appeal from the United States District Court
    for the Northern District of Indiana, Fort Wayne Division.
    No. 1:12-cv-00122 RLM — Robert L. Miller, Jr., Judge.
    SUBMITTED OCTOBER 17, 2014 — DECIDED DECEMBER 1, 2014
    Before CUDAHY, WILLIAMS, and SYKES, Circuit Judges.
    SYKES, Circuit Judge. A Catholic school in Fort Wayne,
    Indiana, discharged a language-arts teacher because she
    underwent in vitro fertilization in violation of the moral
    teaching of the Catholic Church. She sued the school and the
    local diocese alleging that they unlawfully discriminated
    against her because of her sex and disability. The case comes to
    us from an order denying the defendants’ motion for summary
    2                                                    No. 14-3057
    judgment. Because that decision is nonfinal, the plaintiff has
    moved to dismiss for lack of appellate jurisdiction. For the
    reasons that follow, we grant the motion.
    I. Background
    In August 2003 Emily Herx began work as a junior-high
    language-arts teacher at St. Vincent de Paul School in Fort
    Wayne, Indiana. Her teaching contract was subject to annual
    renewal. In 2008 Herx and her husband learned that she has a
    medical condition that causes infertility. She began a course of
    fertility treatments, starting with artificial insemination. That
    procedure was unsuccessful, and in March 2010 she underwent
    in vitro fertilization. Herx told the school’s principal about her
    treatment and was allowed to take time off for it. Herx’s
    contract was renewed again for the 2010–2011 school year.
    In April 2011, just as Herx was about to undergo a second
    round of in vitro fertilization, Monsignor John Kuzmich, the
    pastor of St. Vincent de Paul Catholic Church, met with Herx
    and advised her that in vitro fertilization is incompatible with
    the Catholic Church’s moral teaching. Soon after that meeting,
    the Diocese of Fort Wayne–South Bend notified Herx that
    because she underwent in vitro fertilization in violation of the
    Church’s moral doctrine, her teaching contract would not be
    renewed for the 2011–2012 school year.
    Herx sued the Diocese and St. Vincent School (collectively,
    “the Diocese”) alleging claims under Title VII of the Civil
    Rights Act, as amended by the Pregnancy Discrimination Act,
    see 42 U.S.C. § 2000e-2; id. § 2000e(k), and the Americans with
    No. 14-3057                                                      3
    Disabilities Act (“ADA”), see 
    42 U.S.C. §§ 12101
     et seq. She
    contends that the defendants discriminated against her on the
    basis of sex and disability by refusing to renew her contract
    because she underwent in vitro fertilization.
    The Diocese moved for summary judgment on both claims.
    The district court granted the motion with respect to the ADA
    claim; that ruling is not at issue on this appeal. On the Title VII
    claim, the Diocese invoked two statutory exemptions available
    to religious organizations. The first provides as follows:
    This subchapter shall not apply to … a religious
    corporation, association, educational institution,
    or society with respect to the employment of
    individuals of a particular religion to perform
    work connected with the carrying on by such
    corporation, association, educational institution,
    or society of its activities.
    42 U.S.C. § 2000e-1(a). The second is specific to religiously
    affiliated educational institutions and states as follows:
    [I]t shall not be an unlawful employment prac-
    tice for a school, college, university, or other
    educational institution or institution of learning
    to hire and employ employees of a particular
    religion if such school, college, university, or
    other educational institution or institution of
    learning is, in whole or in substantial part,
    owned, supported, controlled, or managed by a
    particular religion or by a particular religious
    corporation, association, or society, or if the
    curriculum of such school, college, university, or
    4                                                     No. 14-3057
    other educational institution or institution of
    learning is directed toward the propagation of a
    particular religion.
    Id. § 2000e-2(e)(2).
    Invoking the exemptions in the context of this case raises a
    question of first impression in this circuit: Are the religious-
    employer exemptions in Title VII applicable only to claims of
    religious discrimination or do they apply more broadly to other
    employment-discrimination claims? Relying on caselaw from
    other circuits, the district court held that the religious-
    employer exemptions apply only to claims alleging religious
    discrimination and do not bar Title VII claims against religious
    organizations alleging discrimination on the basis of race,
    color, sex, or national origin. See e.g., Kennedy v. St. Joseph’s
    Ministries, Inc., 
    657 F.3d 189
    , 192 (4th Cir. 2011); Boyd v. Harding
    Acad. of Memphis, Inc., 
    88 F.3d 410
    , 413 (6th Cir. 1996); EEOC v.
    Pac. Press Publ’g Ass’n, 
    676 F.2d 1272
    , 1279 (9th Cir. 1982).
    The Diocese argued in the alternative that if the statutory
    exemptions do not apply, then Title VII is unconstitutional as
    applied because the jury would be asked to engage in an
    impermissible inquiry into the religious teachings of the
    Catholic Church. The judge was sensitive to this problem. He
    acknowledged that “[t]he Diocese is understandably concerned
    about the possibility of a … jury conducting its own secular
    analysis of Roman Catholic doctrine on in vitro fertilization.”
    He said “[t]hat shouldn’t happen” in this case, and he assured
    the parties that he would instruct the jury not to consider
    “whether [the Diocese’s] actions were wise, reasonable, or
    fair,” but only whether Herx had proved that the Diocese took
    No. 14-3057                                                    5
    an adverse employment action against her because of her sex.
    FEDERAL CIVIL JURY INSTRUCTIONS OF THE SEVENTH CIRCUIT 3.07
    (2010).
    The Diocese also argued that the ministerial exception
    rooted in the religion clauses of the First Amendment barred
    Herx’s claim. See Hosanna–Tabor Evangelical Lutheran Church &
    Sch. v. EEOC, 
    132 S. Ct. 694
     (2012). The judge rejected this
    argument as well, holding that because Herx was a lay
    language-arts teacher with no role in religious education at
    St. Vincent, the ministerial exception did not apply.
    Finally, the judge held that a reasonable jury could find the
    Diocese liable on Herx’s sex-discrimination claim. The Diocese
    said it would discharge any employee—male or female—who
    was found to have violated the Church’s teaching against in
    vitro fertilization. In other words, the Diocese requires all
    employees to abide by the moral standards set by the Church
    and enforces those standards without regard to sex. The judge
    concluded that “a jury wouldn’t be compelled to accept that
    avowed gender-neutrality.” This was so, the judge held,
    “[e]ven in the face of … evidence [of gender neutrality] from
    the Diocese,” because “a jury that resolved every factual
    dispute, and drew every reasonable inference, in Mrs. Herx’s
    favor could infer that Mrs. Herx’s contract would have been
    renewed had she been male and everything else remained the
    same.”
    For these reasons, the judge denied the Diocese’s motion for
    summary judgment on the sex-discrimination claim and set a
    trial date of December 16, 2014.
    6                                                   No. 14-3057
    The Diocese did not ask the court to certify the summary-
    judgment order for immediate appeal under 
    28 U.S.C. § 1292
    (b), as it might have done. See Kennedy, 
    657 F.3d at 191
    (approving the district court’s § 1292(b) certification in a
    similar case raising a legal question about the scope of
    Title VII’s religious-employer exemptions). Instead, the Diocese
    brought this appeal under the auspices of the collateral-order
    doctrine.
    II. Discussion
    The legal and factual merits of this case are not before us.
    Because the appeal is interlocutory, Herx has moved to dismiss
    for lack of appellate jurisdiction, arguing that the collateral-
    order doctrine does not apply. We ordered a response from the
    Diocese and suspended merits briefing pending disposition of
    the motion. The response is now in, as is a reply brief from
    Herx, so the motion is ready for decision.
    The federal courts of appeals ordinarily have jurisdiction to
    review only “final decisions of the district courts.” 
    28 U.S.C. § 1291
    . But the collateral-order doctrine confers finality—and
    thus immediate appealability—on a small category of interloc-
    utory orders “too important to be denied review and too
    independent of the cause itself to require that appellate
    consideration be deferred until the whole case is adjudicated.”
    Cohen v. Beneficial Indus. Loan Corp., 
    337 U.S. 541
    , 546 (1949).
    Included in this “small category” are “decisions that are
    conclusive, that resolve important questions separate from the
    merits, and that are effectively unreviewable on appeal from
    No. 14-3057                                                     7
    the final judgment in the underlying action.” Swint v. Chambers
    Cnty. Comm’n, 
    514 U.S. 35
    , 42 (1995).
    These three conditions for collateral-order review—(1) a
    conclusive decision; (2) on an important issue that is conceptu-
    ally separate from the merits; and (3) that is effectively
    unreviewable on an appeal from a final judgment—are
    considered “stringent.” Digital Equip. Corp. v. Desktop Direct,
    Inc., 
    511 U.S. 863
    , 868 (1994). And they must be kept so lest the
    collateral-order doctrine “overpower the substantial finality
    interests § 1291 is meant to further.” Will v. Hallock, 
    546 U.S. 345
    , 350 (2006). These interests include “judicial effi-
    ciency … and the ‘sensible policy of avoid[ing] the obstruction
    to just claims that would come from permitting the harassment
    and cost of a succession of separate appeals from the various
    rulings to which a litigation may give rise.’” 
    Id.
     (quoting
    Firestone Tire & Rubber Co. v. Risjord, 
    449 U.S. 368
    , 374 (1981)).
    The Supreme Court’s most recent forays into the collateral-
    order doctrine are replete with references to the “narrow” and
    “modest” scope of the doctrine. See, e.g., Mohawk Indus., Inc. v.
    Carpenter, 
    558 U.S. 100
    , 106–07 (2009); Will, 
    546 U.S. at 350
    (“[W]e have not mentioned applying the collateral order
    doctrine recently without emphasizing its modest scope.”);
    Digital Equip., 
    511 U.S. at 868
     (“[T]he ‘narrow’ exception should
    stay that way and never be allowed to swallow the general rule
    that a party is entitled to a single appeal, to be deferred until
    final judgment has been entered … .” (citation omitted)). As if
    to drive the point home, the Court has issued this blunt
    reminder to those who seek to expand the scope of collateral-
    order review: “[W]e have meant what we have said; although
    8                                                    No. 14-3057
    the Court has been asked many times to expand the ‘small
    class’ of collaterally appealable orders, we have instead kept it
    narrow and selective in its membership.” Will, 
    546 U.S. at 350
    .
    To determine whether the requirements for a collateral-
    order appeal are met, we “do not engage in an individualized
    jurisdictional inquiry.” Mohawk Indus., 
    558 U.S. at 107
     (internal
    quotation marks omitted). Instead, the “focus is on the entire
    category to which a claim belongs.” 
    Id.
     (internal quotation
    marks omitted).
    The recognized categories of collaterally appealable orders
    include orders rejecting a public official’s claim of absolute or
    qualified immunity, Nixon v. Fitzgerald, 
    457 U.S. 731
    , 742 (1982)
    (absolute immunity); Mitchell v. Forsyth, 
    472 U.S. 511
    , 530 (1985)
    (qualified immunity), as well as orders rejecting a State’s claim
    of Eleventh Amendment immunity, P.R. Aqueduct & Sewer
    Auth. v. Metcalf & Eddy, Inc., 
    506 U.S. 139
    , 144–45 (1993). An
    order rejecting a foreign government’s claim of sovereign
    immunity also meets the criteria for collateral-order appeal. See
    Abelesz v. Magyar Nemzeti Bank, 
    692 F.3d 661
    , 667 (7th Cir.
    2012). So does an order denying a criminal defendant’s claim
    of double jeopardy. See Abney v. United States, 
    431 U.S. 651
    , 660
    (1977).
    Importantly, these classes of cases involve claims of
    “immunity from the travails of a trial and not just from an
    adverse judgment.” McCarthy v. Fuller, 
    714 F.3d 971
    , 975 (7th
    Cir. 2013). “If the defense of immunity is erroneously denied
    and the defendant has to undergo the trial before the error is
    corrected he has been irrevocably deprived of one of the
    No. 14-3057                                                         9
    benefits—freedom from having to undergo a trial—that his
    immunity was intended to give him.” 
    Id.
    Arguments to extend collateral-order review beyond these
    few, well-established categories usually fail at the third step in
    the analysis, which asks whether the challenged order is
    effectively unreviewable on an appeal from a final judgment.
    The Supreme Court has explained that at this step the “crucial
    question … is not whether [the asserted] interest is important
    in the abstract; it is whether deferring review until final
    judgment so imperils the interest as to justify the cost of
    allowing immediate appeal of the entire class of relevant
    orders.” Mohawk Indus., 
    558 U.S. at 108
    . The mere fact that “a
    ruling ‘may burden litigants in ways that are only imperfectly
    reparable by appellate reversal of a final district court judg-
    ment … has never sufficed.’” 
    Id. at 107
     (quoting Digital Equip.,
    
    511 U.S. at 872
    )). Rather, “the decisive consideration is whether
    delaying review until the entry of a final judgment ‘would
    imperil a substantial public interest’ or ‘some particular value
    of a high order.’” 
    Id.
     (quoting Will, 
    546 U.S. at
    352–53)).
    A common characteristic in cases in which collateral-order
    review has been permitted is that “[i]n each case, some
    particular value of a high order was marshaled in support of
    the interest in avoiding trial,” not just an interest in avoiding an
    adverse judgment. Will, 
    546 U.S. at 352
     (emphasis added). The
    interests that meet this high bar include “honoring the separa-
    tion of powers, preserving the efficiency of government and
    the initiative of officials, respecting a State’s dignitary interests,
    and mitigating the government’s advantage over the individ-
    ual.” 
    Id.
     at 352–53.
    10                                                   No. 14-3057
    The district court’s order does not implicate an interest of
    this kind. This suit involves private parties—not public officials
    or a unit of government—so delaying appellate review until
    final judgment does not “imperil a substantial public interest”
    grounded in the separation of powers, the dignity interests of
    a State, the efficient operation of the government, or any other
    public interest. And although the statutory and constitutional
    rights asserted in defense of this suit are undoubtedly impor-
    tant, the Diocese has not established that the Title VII exemp-
    tions or the First Amendment more generally provides an
    immunity from trial, as opposed to an ordinary defense to
    liability.
    Indeed, most of the Diocese’s brief in opposition to the
    dismissal motion consists of an argument attacking the district
    court’s summary-judgment ruling on the merits. On the
    jurisdictional issue—the only relevant question at this stage—
    only a few sentences are addressed to the criteria for collateral-
    order review. The Diocese’s primary argument relies on a
    passage from our opinion in Korte v. Sebelius, 
    735 F.3d 654
     (7th
    Cir. 2013), which construed the Religious Freedom Restoration
    Act (“RFRA”). In Korte the government argued for a narrow
    construction of RFRA by analogizing to the Title VII exemp-
    tions for religious employers. 
    Id.
     at 676–79. We rejected that
    argument, pointing out that the Title VII exemptions and
    RFRA are different in important respects. We described the
    Title VII exemptions as “legislative applications of the church-
    autonomy doctrine” and explained that this principle—where
    it applies—“operates as a complete immunity, or very nearly
    so.” 
    Id. at 678
    . We also explained that the Title VII exemptions
    are “categorical, not contingent,” whereas RFRA requires a
    No. 14-3057                                                   11
    balancing of competing interests. 
    Id.
     In other words, where
    applicable, the religious-employer exemptions in Title VII
    provide a complete defense to liability without regard to
    interest balancing; in contrast, the rights protected by RFRA
    can be overcome by “a sufficiently strong governmental
    interest.” 
    Id. at 679
    .
    The Diocese reads our “complete immunity” and “cate-
    gorical” language to mean that the Title VII exemptions confer
    on religious organizations an immunity from trial on an
    employment-discrimination claim. That’s much more than this
    passage in Korte can bear. We’ve noted on another occasion
    that “[w]ords like ‘immunity,’ sometimes conjoined with
    ‘absolute,’ are often used interchangeably with ‘privilege,’ …
    without meaning to resolve issues of [immediate] appeal-
    ability.” Segni v. Commercial Office of Spain, 
    816 F.2d 344
    , 346
    (7th Cir. 1987) (quoting DAN B. DOBBS ET AL., PROSSER AND
    KEETON ON THE LAW OF TORTS § 114, at 815 (5th ed. 1984)).
    “[T]he description of a defense as an ‘immunity’ rather than a
    privilege or affirmative defense … does not resolve the issue
    whether the denial of the immunity is a collateral order.” Id.
    Without more, the passage the Diocese invokes from Korte
    is not enough to confer collateral-order status on a district
    court’s decision rejecting a defense based on Title VII’s exemp-
    tions for religious organizations. The Diocese cites no authority
    for the proposition that the exemptions provide an immunity
    from the burdens of trial rather than an ordinary defense to
    liability. To our knowledge, there is none.
    The Diocese also argues that collateral-order review is
    necessary to avert a serious encroachment on its First
    12                                                         No. 14-3057
    Amendment religious-liberty interests. This argument relies on
    McCarthy v. Fuller, 
    714 F.3d 971
     (7th Cir. 2013). There we held
    that the conditions for a collateral-order appeal were satisfied
    when a district judge ordered that a religious question—
    whether the defendant Patricia Fuller was a nun in good
    standing in the Catholic Church—be submitted to a jury for
    decision. 
    Id.
     at 973–74. The Holy See, the governing body of the
    Catholic Church, had issued a ruling on Fuller’s status, and we
    explained that secular courts must accept that ruling as
    authoritative. 
    Id. at 974
    . We pointed out that if the jury were to
    conclude that Fuller was a member of a Catholic religious
    order, the jury would “be rejecting the contrary ruling of the
    religious body (the Holy See) authorized by the Church to
    decide such matters.” 
    Id.
     For this reason, we held that the
    district court’s decision was “closely akin to a denial of official
    immunity” and allowed a collateral-order appeal in order to
    vindicate the important religious-liberty principle that “[a]
    secular court may not take sides on issues of religious
    doctrine.” 
    Id. at 975
    .
    The circumstances here are not comparable. The district
    court has not ordered a religious question submitted to the jury
    for decision. To the contrary, the judge promised to instruct the
    jury not to weigh or evaluate the Church’s doctrine regarding
    in vitro fertilization.1 The judge would do well to be quite
    explicit in these instructions. The pattern jury instructions can
    be adapted to the particular facts of a given case, and in light
    1
    The Diocese does not seek collateral-order review of the district court’s
    ruling regarding the ministerial exception.
    No. 14-3057                                                              13
    of the sensitive context here, this case is an appropriate one for
    customized instructions.
    We express no opinion on the merits of the district court’s
    summary-judgment decision. We hold only that the Diocese
    has not made a persuasive case for expanding the scope of the
    collateral-order doctrine to cover the interlocutory decision
    rendered here. We do not question the importance of the
    interests the Diocese has asserted. But those interests will not
    be irreparably harmed by enforcement of the final-judgment
    rule. See McCarthy, 714 F.3d at 975 (explaining that “to be
    appealable as a collateral order the order must (unless re-
    versed) wreak irreparable harm on the appellant”). Because the
    district court’s decision is not effectively unreviewable on an
    appeal from a final judgment, the collateral-order doctrine
    does not apply. We grant Herx’s motion and DISMISS the
    appeal for lack of jurisdiction.2
    2
    The Diocese also filed a “Motion for Order Notifying District Court of Stay
    of District Court Proceedings Pending Appellate Court’s Consideration of
    Defendants-Appellants’ Appeal.” Our jurisdictional dismissal of the appeal
    moots this motion.