3rd Circuit Hears Oral Arguments In Title VII Reasonable Accommodation Case

Yesterday, the U.S. 3rd Circuit Court of Appeals heard oral arguments (audio of full arguments) in Groff v. DeJoy.  In the case, a Pennsylvania federal district court (full text of district court opinion) dismissed Title VII claims brought by an Evangelical Christian postal worker who resigned after receiving warning letters and suspensions for refusing to work on Sundays. The district court rejected claims of religious discrimination and held that plaintiff had been offered shift swapping that met the "reasonable accommodation" requirement of Title VII.  The Third Circuit has not previously decided an issue on which the Circuits are split-- whether an employer must wholly eliminate a conflict between work and religion in order for an accommodation to be reasonable under Title VII. The district court concluded that complete elimination is not required.

Court Upholds Testing Requirement For Employees Granted Religious Exemption From Vaccination

In Federoff v. Geisinger Clinic, (MD PA, No. 23, 2021), a Pennsylvania federal district court refused to issue a preliminary injunction in a suit by 100 clinic employees who had been granted religious exemptions from the COVID vaccine mandate so long as they submit to tests twice per week. The employees sue seeking to eliminate the testing requirement or, alternatively, to require vaccinated employees as well to submit to testing. The court, in rejecting plaintiffs' constitutional and statutory claims, said in part:

First, they assert constitutional claims against a private entity without so much as a paragraph describing how Geisinger could be considered a state actor....

Second, while the Geisinger Employees are in the right area code in alleging that Geisinger violated their rights under federal and state antidiscrimination law ... their allegations fail to touch on these statutes’ most basic requirements. To make out a prima facie case of religious discrimination, the Geisinger Employees must tell the Court what their religious belief is. They have not done so....

[Also] the antidiscrimination statutes require that employees first file their complaint with either the Pennsylvania Human Relations Commission or the Equal Employment Opportunity Commission. The Geisinger Employees have not done so..... 

[T]he Employees also fail to show that they would suffer irreparable harm...

Ministerial Exception Doctrine Requires Dismissal Of Priest's Interference With Contract Claim

In Tracy v. O'Bell, (PA Super., Nov. 5, 2021), a Pennsylvania state appellate court held that the ministerial exception doctrine requires dismissal of a tortious interference with contract suit by Father Tracy, a Catholic priest, against three influential lay members of the Catholic parish which employed Tracy.  Tracy alleges that these members made false and defamatory statements to parish members and to the bishop in order to have him removed from his position after he discovered unexplained amounts of parish cash in a file cabinet under defendants' control. The court said in part:

[T]he First Amendment provides special protection to communications regarding the selection and retention of religious ministers.... [O]ur result does not insulate lay people from liability from defamatory statements against clergy. Nor do we deprive clergy of the ability to seek to redress all civil wrongs committed against them by lay people. We have no occasion to address those questions. Appellant’s complaint is very specific—he alleges that Appellees, through their communications with the local bishop and others, sought and successfully procured Appellant’s removal from ministry. Our holding is correspondingly narrow—Appellant’s allegations are inextricably intertwined with his removal from ministry, and therefore the trial court properly sustained Appellees’ preliminary objection based on the ministerial exception. 

Appellate Court Says Injunction Against Church Picketer Was Too Broad

In Tenth Presbyterian Church v. Snyder, (PA Super, Oct. 18, 2021), a Pennsylvania state appellate court held that the trial court was justified in issuing a preliminary injunction against Phillip Snyder, an excommunicated member of the church, who picketed the church every Sunday. However the appellate court held that the preliminary injunction's requirement that Snyder remain at least 5,000 feet from the church property was not narrowly enough tailored. The appellate court pointed out that Snyder had engaged in aggressive and agitated behavior that frightened Church members, and that he carried a concealed firearm. Nevertheless, it concluded:

[T]he trial court couched its preliminary injunction in the broadest terms to protect the interest of the Church and its members, disregarding Snyder’s constitutional right to protest the Church and its leadership. A five-thousand-foot restriction places Snyder well beyond the point at which his constitutional right to protest is utterly extinguished.  Put succinctly, the five-thousand-foot restriction is not “couched in the narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate and the essential needs of public order.”

Nuns Again Lose Challenge To Atlantic Sunrise Pipeline

 In Adorers of the Blood of Christ v. Transcontinental Gas Pipeline Co., (ED PA, Sept. 30, 2021), a Pennsylvania federal district court dismissed a claim for damages under RFRA brought by an Order of Catholic nuns whose land was condemned for construction of the Atlantic Sunrise Pipeline. They alleged that the taking violated their religious exercise because of their belief in the need to protect and preserve creation. In 2018, the U.S. 3rd Circuit Court of Appeals held that their suit seeking an injunction against the pipeline should be dismissed because their challenge should have first been brought before the Federal Energy Regulatory Commission (FERC). (See prior posting.) In this week's decision, the court said in part:

simply seeking money damages as opposed to injunctive relief does not cure the jurisdictional defect in this matter.

Court Says Objections To Mask Requirement Were Not Sincerely Held Religious Beliefs

 In Geerlings v. Tredyffrin/ Easttown School District, (ED PA, Sept. 27, 2021), a Pennsylvania federal district court refused to issue a preliminary injunction sought by parents of four students who claim that the students are entitled to religious exemptions from a school district's COVID-19 mask requirement. The court held that none of the plaintiffs demonstrated a "sincere religious belief". In each case the court concluded either that the asserted beliefs were not sincerely held or were not religious in nature.  The court described the asserted beliefs of each plaintiff:

Ms. Marvin believes people are made in the image of God and it therefore dishonors God to cover our faces....

Ms. Geerlings believes the body is a temple and must not be harmed, and in her view, masks violate the prohibition on harming the body because they are unhealthy....

Mr. Governanti came to believe that he must not harm his daughter, which, in his view, means he must not allow his daughter to wear a mask....

Mr. McLellan believes God intervened in his life to save him from certain trauma, and that masks are a mockery of the gift of life because they cover what makes us human and show a lack of gratitude to the creator.

Bishop's Suit for Indemnification Dismissed On Ecclesiastical Abstention Doctrine

In Kawimbe v. The African Methodist Episcopal Church, Inc., (ND GA, Aug. 27, 2028), a Georgia federal district court dismissed a suit by the Bishop of a church district covering part of South Africa.  The bishop's suit sought indemnification from the Church (a Pennsylvania non-profit corporation) for his successful defense before a church tribunal of charges bought against him by a minister in South Africa. The court held that the suit is not precluded by the ministerial exception doctrine because "the Church’s decision to deny Kawimbe indemnification does not implicate its right to select its ministers." The court concluded however that the suit should be dismissed under the ecclesiastical abstention doctrine, saying in part:

Under Pennsylvania law, if a representative of a non-profit corporation succeeds on the merits in an action or proceeding brought against him “by reason of” his representative status, the non-profit corporation must indemnify him...

To determine whether Kawimbe is or was a representative of the Church, the Court would be required to scrutinize “the composition of [the Church and AMEC’s] hierarchy,” including the nature of Kawimbe’s role as a bishop, which are matters of “core ecclesiastical concern.”...

[T]o determine whether the internal proceeding was brought “by reason of” Kawimbe’s role as a representative of the Church, the Court would have to consider the responsibilities and powers given to Kawimbe in his role as bishop and whether the accusations against him involved those responsibilities and powers. This inquiry would necessarily entangle the Court in matters of church governance. 

Protective Order Did Not Violate Ex-Husband's Free Exercise Rights

 In Kaur v. Singh, (PA Super., Aug. 2, 2021), a Pennsylvania appellate court upheld a Protection From Abuse Order that excludes plaintiff's former husband from attending the Nazareth Temple on Sundays when his former wife is present. The court said in part:

[T]he Final PFA Order did not substantially burden Appellant’s right to practice his religion....The Order did not ban Appellant from practicing his religion, nor compel him to perform actions against his religion. Appellant can attend services at several other temples in the area on Sunday, attend services at Nazareth Temple every day but Sunday, and attend services at Nazareth Temple on Sunday if Ms. Kaur is not present. As the trial court explained, “[t]he record established that all of the Sikh temples in the area have essentially the same services”....

Additionally ... [s]ince Appellant’s purpose of attending the services at Nazareth Temple is to harass Ms. Kaur as opposed to practicing his religion, the Order arguably does not impact Appellant’s ability to practice his religion at all.

Pennsylvania Supreme Court: Abuse Victim's Suit Against Diocese Barred By Limitations Statute

In Rice v. Diocese of Altoona-Johnstown, (PA Sup. Ct., July 21, 2021), the Pennsylvania Supreme Court in a 5-2 decision held that the statute of limitations bars a suit against the Diocese of Altoona-Johnstown and its bishops for their role in covering up and facilitating a series of sexual assaults by plaintiff's childhood priest. Suit was filed 35 years after the assaults. Plaintiff sued after a Pennsylvania grand jury report detailed clergy abuse. The court held that the discovery rule did not toll the statute:

Because her claims for damages against the Diocese are based on [her priest's] alleged conduct, she was on inquiry notice regarding other potentially liable actors, including the Diocese, as a matter of law.

The court also rejected a claim that fraudulent concealment tolled the statute:

Under our jurisprudence, before a plaintiff may invoke the principles of fraudulent concealment, the plaintiff must use reasonable diligence to investigate her claims.

Chief Justice Baer filed a concurring opinion. Justice Wecht, joined by Justice Todd, filed a dissenting opinion, saying in part:

The Majority’s conclusion that Rice failed to exercise reasonable diligence in investigating the Diocese’s role in her attack is based on nothing more than the fact that Rice knew that she was assaulted on church property by a priest employed by the Diocese.... This analysis dramatically oversimplifies the reasonable diligence inquiry.

AP reports on the decision. [Thanks to Tom Rutledge for the lead.]

Pennsylvania Man Sentenced For Online Threats To Jewish Community

The U.S. Attorney's Office for the Middle District of Pennsylvania announced yesterday that a 32 year old Pennsylvania man has been sentenced to 18-months in prison after he pleaded guilty to one count of interstate transmission of threats to injure another person. According to the press release:

[Corbin]  Kauffman posted a digitally-created image of his own arm and hand aiming an AR-15 rifle at a congregation of praying Jewish men, gathered in a synagogue.  The threatening image came in the wake of the October 27, 2018 mass-shooting at Tree of Life synagogue in Pittsburgh, Pennsylvania.....  On the same day ..., Kauffman also shared a video of the Tree of Life shooting, as well as another post in support of the shooter [and] ... also posted multiple references to “hate crimes” and a photograph of vandalism he committed by defacing a display case at the Chabad Lubavitch Jewish Center in Ocean City, Maryland, with white supremacist and anti-Semitic stickers.

Court Continues 30-Year Old Church Factional Dispute

In Trustees of the General Assembly of the Lord Jesus Christ of the Apostolic Faith, Inc. v. Patterson, (ED PA, March 19, 2021), a Pennsylvania federal district court, in an 85-page opinion, granted a preliminary injunction to prevent the county sheriff from carrying out a Writ of Possession and Eviction Notice against plaintiff Church and Church Corporation which holds title to Church property. As explained by the court:

The instant action is one in a long line of other cases ... over the past three decades, in state court and federal court alike. The heart of each case is the same, though the procedural postures may differ. They all seek to resolve, once and for all, a question that has been posed since 1991, after the death of the late Bishop McDowell Shelton and the subsequent schism in the Church: Who gets to control the Church and Church Corporation and their assets?

The Writ of Possession at issue grew out of a 2006 Arbitration Award which was upheld in 2017. The court concluded, however, that the case giving rise to the arbitration award was between individual leaders of the two factions seeking control. Since the Church and the Church Corporation were not parties to that action, it was not binding on them. Thus a judgment is being enforced against them when they never had the opportunity to litigate the matter.

Suit Challenges Disqualification of Ministers Ordained Online As Marriage Officiants

Suit was filed yesterday in a Pennsylvania federal district court seeking to declare unconstitutional the position taken by the Bucks County, Pennsylvania clerk of courts that ministers who were ordained online may not solemnize marriages under Pennsylvania law. Apparently the county takes the position that those ordained online are not clergy of a "regularly established church or congregation", as required by 23 Pa. Cons. Stat. Ann. § 1503. The complaint (full text) in Universal Life Church Monastery Storehouse v. Bobrin, (ED PA, filed 2/16/2021), alleges that this interpretation violates the Free Exercise, Establishment and Equal Protection Clauses, saying in part:

... Defendant has used the powers of her office to discourage ULC Monastery ministers from exercising rights afforded to ministers of other religions. Defendant’s apparent policy of discrimination unconstitutionally prefers certain religions or religious denominations over others and burdens ULC Monastery’s and its ministers’ free exercise of religion. To the extent Defendant is correct that 23 Pa. Cons. Stat. Ann. § 1503 bars ULC Monastery ministers from solemnizing marriages while granting that benefit to ministers of other religious denominations, the statute is unconstitutional.

Universal Life Church issued a press release announcing the filing of the lawsuit.

Supreme Court Denies Review In Clinic Buffer Zone Case

The U.S. Supreme Court today denied review in Bruni v. City of Pittsburgh, Pennsylvania, (Docket No. 19-1184, certiorari denied 1/11/2021). (Order List [scroll to pg. 25]). In the case, the U.S. 3rd Circuit Court of Appeals upheld a Pittsburgh ordinance that creates a 15-foot buffer zone outside any health care facility, including a Planned Parenthood clinic. Congregating, patrolling, picketing and demonstrating in such areas are banned. (See prior posting.) Justice Thomas added a statement to his vote to deny review, saying that in an appropriate case the Court should re-examine whether intermediate scrutiny is the correct test in buffer zone cases. ADF issued a press release on the denial of certiorari.

Ministerial Exception Applies To Title IX Hostile Work Environment Claims

In Koenke v. Saint Joseph's University, (ED PA, Jan. 8, 2021), a woman employed by a Catholic university sued under Title IX claiming sexual orientation discrimination.  The court held that the Supreme Court's Bostock decision should be read to apply to sexual orientation discrimination under Title IX as well as under Title VII. All the parties agreed that plaintiff's position as Assistant Director for Music and Worship was a "ministerial" position for purposes of the ministerial exception. However plaintiff claimed that the ministerial exception does not apply to non-tangible employment discrimination claims such as hostile work environment.  The court disagreed, saying in part:

[H]ostile work environment claims, particularly those brought pursuant to Title VII or Title IX, clearly fall within the scope of cases banned by the ministerial exception.... The Supreme Court has not cabined the ministerial exception to tangible or intangible employment actions, and it is not for this Court to create such an exception to binding precedent.

Court Refuses To Dismiss Indictment In Tree of Life Synagogue Case

In United States v. Bowers, (WD PA, Oct. 15, 2020), a Pennsylvania federal district court refused to dismiss an indictment under the federal Hate Crimes Prevention Act and the Church Arson Act brought against defendant charged in the 2018 attack on Pittsburgh's Tree of Life Synagogue. (Full text of Superseding Indictment.) The court rejected both the facial and the as-applied challenge to the Hate Crimes Act. The court said in part:

Each federal court to have considered the constitutionality of § 249(a)(1) has found it to be a valid exercise of Congressional power under the Thirteenth Amendment....

[T]he congressional intent behind §249(a)(1) makes clear that Congress intended to prohibit violence on the basis of real or perceived religions that “were regarded as races at the time of the adoption of the [Reconstruction] amendments.”... [T]herefore ... §249(a)(1) includes protection for Jewish people in that they were considered a distinct race when the Thirteenth Amendment was-applied.

Upholding the constitutionality of the Church Arson Act against a facial attack, the court said in part:

Congress had a rational basis to conclude that the conduct regulated by § 247 substantially affects interstate commerce.

Responding to defendant's as-applied challenge, the court said in part:

The Defendant’s as-applied challenge requires consideration of a developed factual record and the application of the statute to those facts. Thus, it is premature to determine the as-applied issue at this time.

Pennsylvania Supreme Court Hears Arguments In Important Clergy Abuse Case

Pittsburgh Post-Gazette reports on oral arguments before the Pennsylvania Supreme Court yesterday in an important case on Catholic Church liability for priest sexual abuse occurring many years ago:

At issue is the claim by plaintiff Renee Rice of Altoona that the Diocese of Altoona-Johnstown conspired to cover up abuse by priests including that of her own alleged assailant — the Rev. Charles Bodziak — in the 1970s and 1980s. She sued the diocese for alleged fraud and concealment, saying that it was not until a 2016 statewide grand jury report that she learned of “a massive, systemic conspiracy of coverup to allow … children to be abused repeatedly,” attorney Alan Perer said.

But in repeated questioning, some of the justices echoed the argument of the diocese’s own attorney — that a plaintiff has an obligation within the statute of limitations to investigate the source of her injury and those who may have been responsible for it.

Plaintiff argues that it should be up to a jury to decide if she should have investigated sooner.

Harrisburg Catholic Diocese Files For Bankruptcy Reorganization

Yesterday, the Catholic Diocese of Harrisburg (PA) filed for bankruptcy reorganization in federal bankruptcy court. In announcing the move, Bishop Robert Gainer said in part:

Over the past few years, our Diocese has been forced to confront our horrific past regarding clergy sexual abuse. Today, we are facing some difficult financial realities. Despite making every attempt to scale back operations and reduce overhead, we are currently unable to meet our financial obligations.

... Our current financial situation, coupled with changes in the law both here and in New Jersey, where we are already named in one lawsuit and where we anticipate more to follow, left us with no other path forward to ensure the future of our Diocese. Despite the success of the Survivor Compensation Program, which helped 111 survivors of clergy child sexual abuse, or 96% of those who participated in the Program, we already are in receipt of half a dozen new lawsuits, any one of which could severely cripple the Diocese.

As Bishop, I must ensure the Diocese’s core mission is upheld, which is to remain focused on Christ’s mandate to preach, teach, sanctify, and to serve those in need. We must work to bring the Chapter 11 process to a conclusion, as soon as is reasonably possible and in a way that allows us to be present to the community, as we have been for the past 152 years.

Links to all the pleadings and other documents in the case are available here.  Reporting on the filling, AP says that the diocese joins at least 20 others across the country that have filed for bankruptcy. The diocese says it has assets of less than $10 million with liabilities between $50 and $100 million.

3rd Circuit: Employee's Flu Vaccine Objections Were Not Religious

In Brown v. Children's Hospital of Philadelphia, (3rd Cir., Feb. 14, 2020), the U.S. 3rd Circuit Court of Appeals affirmed the dismissal of a religious discrimination claim brought by a hospital employee who was fired for refusing to obtain a flu vaccination.  The court held that Naija Brown's objections were not "religious". She practiced an "African Holistic Heath" lifestyle. She claimed that while she did not have a pastor to validate her beliefs, she filed an "advance vaccine directive" prepared by Natural Solutions Foundation. The court concluded that her opposition to the vaccine were medical, not religious. PennLive reports on the decision.

Pennsylvania Archdiocese Can Be Sued In New Jersey Courts For Priest's Abuse In New Jersey

Doe I v. Archdiocese of Philadelphia, (NJ Super. Ct., Jan. 8, 2020) is a case in which plaintiff sued the Archdiocese of Philadelphia (PA) in a New Jersey court alleging that in the 1970's he was sexually abused by a now-deceased priest who was assigned to a Pennsylvania parish.  The abuse, however, took place in New Jersey.  The suit claims that the Archdiocese was negligent in hiring, supervising and investigating complaints against the priest. Apparently the suit was brought in New Jersey because the state had extended its statute of limitations in child sex abuse cases, while Pennsylvania's statute of limitations would bar the lawsuit.  The New Jersey trial court rejected the Archdiocese's claim that the suit should be dismissed either for lack of jurisdiction or on forum non conveniens grounds. As to jurisdiction, the court said in part:

Here, the alleged conduct by the defendants’ agent ..., while in New Jersey ... caused serious injury – in the form of sexual abuse – to plaintiff. Once the abuse began, Brugger purposely transported plaintiff from Pennsylvania to New Jersey on two additional occasions to continue the abuse....

[P]laintiff is now, and was at all relevant times, a resident of Pennsylvania. Thus, plaintiff’s choice of forum in New Jersey is granted substantially less deference.... Additionally, the majority of potential witnesses are domiciled in Pennsylvania.... The Archdiocese’s principal office is located in ... Pennsylvania.... [However] the Archdiocese previously owned two properties in ... Atlantic County, New Jersey – the very county where the instant litigation pends....The New Jersey property ownership took place during the times relevant to this litigation, although no alleged abuse by Brugger occurred at either location....

Under this set of facts, it would not be a violation of defendants’ due process rights to subject them to the long-arm jurisdiction of the Courts of New Jersey, given their contacts with this State.....

Denying defendants' forum non conveniens defense, the court said in part:

the alternate forum, Pennsylvania, is inadequate as there remains no remedy there for the plaintiff due to its strict statute of limitations.

3rd Circuit Affirms Dismissal of Title VII Religious Discrimination Suit

In Darby v. Temple University, (3d Cir., Dec. 4, 2019), the U.S. Third Circuit Court of Appeals affirmed the dismissal of plaintiff's claim under Title VII that he was fired by Temple University because of his religion.  The court said in part:

[Plaintiff] states that he wore a cross on a chain around his neck, that he read the bible on breaks, that he spoke openly about attending church services, and that he was employed at Temple for a lengthy period of time. But none of the evidence he produced is sufficient to reasonably infer that his coworkers knew his Baptist identity. More important, none of it relates directly to the person, Thomas Johnston, who terminated his employment. He does not proffer any evidence to show that Johnston knew of his religious affiliation.

Penn Live reports on the decision.