CASE # 2585

Plaintiff alleged that she was terminated from her employment as a medical telemetry technologist with a Catholic medical center, because of her Wiccan religious beliefs and activities, including reading Wiccan literature while at work. She alleged claims of religious discrimination and retaliation in violation of Title VII and the Iowa Civil Rights Act (ICRA). The district court granted summary judgment dismissing plaintiff’s Title VII religious discrimination and retaliation claims, finding that the medical center qualified as a religious institution exempt from religious discrimination claims pursuant to 42 U.S.C. § 2000e-1(a). There was no requirement that the employer be engaged in “religious” activities to invoke the exemption, nor was there a requirement that the employee be engaged in “religious” duties for the exemption to apply. Similarly, the employer was not required to demonstrate any “causal relationship” between a specific religious policy and plaintiff’s termination from her “secular” position as a telemetry technician to invoke the exemption. The medical center did not waive the exemption (1) by holding itself out as an equal opportunity employer; or (2) by failing to assert the exemption in the administrative proceedings before the Iowa Civil Rights Commission (ICRC). The “religious organization” exemption applied not only to plaintiff’s religious discrimination claim, but extended to plaintiff’s Title VII retaliation claim. The court declined to exercise supplemental jurisdiction over plaintiff’s remaining state-law claims of religious discrimination and retaliation in violation of the ICRA, because the interpretation of the ICRA exemption for “bona fide religious institutions” contained in Iowa Code § 216.6(6)(b) was a matter of first impression, best left to the state courts.— Saeemodarae v. Mercy Health Services-Iowa Corp., 456 F. Supp. 2d 1021 (N.D. Iowa 2006), No. C 05-4136-MWB. Dated October 6, 2006. Opinion by J. Mark W. Bennett.

Note: Unless stated otherwise, what follows is a digest, not a word for word reproduction, of the court’s opinion.

Plaintiff alleged that she was terminated from her employment as a medical telemetry technologist with Mercy Health Services – Iowa Corp,, doing business as Mercy Medical Center, because she was a practicing Wiccan. She alleged claims of religious discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and the Iowa Civil Rights Act (ICRA), Iowa Code Ch. 216.

The district court granted Mercy summary judgment dismissing plaintiff’s Title VII religious discrimination and retaliation claims, finding that Mercy was a religious institution exempt from religious discrimination claims pursuant to 42 U.S.C. § 2000e-1(a). Pursuant to 28 U.S.C. § 1367(c)(1) and (3), the court declined to exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a) over plaintiff’s remaining state-law claims of religious discrimination and retaliation in violation of the ICRA, because the interpretation of the ICRA exemption for “bona fide religious institutions” contained in Iowa Code § 216.6(6)(b) was a matter of first impression, best left to the state courts.

The question of whether the Title VII “religious organization” exemption applies in a particular case requires the court to “look at all the facts to decide if the [defendant] is a religious corporation or educational institution,” and in making this inquiry, “[i]t is appropriate to consider and weigh the religious and secular characteristics of the institution.” Hall v. Baptist Memorial Health Care Corp., 215 F.3d 618, 624 (6th Cir. 2000), Case # 803.

The court summarized the facts as follows:

Mercy Medical Center – Sioux City (the Hospital), where plaintiff Jackie Saeemodarae was employed, is owned and operated by defendant Mercy Heath Services – Iowa Corp. (Mercy). The Hospital is one of many hospitals founded by the Sisters of Mercy, a Roman Catholic religious order, founded in Ireland, and dedicated to serving the poor. As the Sisters of Mercy spread throughout Europe and settled in the United States, the Order established educational institutions, hospitals and social service ministries. Among the institutions founded by the Sisters of Mercy was the first Mercy Hospital, which was founded in the United States on approximately January 1, 1847, in Pittsburgh, Pennsylvania. Since that time, the Sisters of Mercy have come to sponsor or co-sponsor approximately 140 health-related facilities throughout the United States, including hospitals, long term care facilities, rehabilitation centers, and family care and outreach centers. There are presently six Mercy-sponsored and co-sponsored health systems in the United States, including Trinity Health Corporation, as well as a number of independent hospitals. Trinity Health Corporation is the fourth largest Catholic Healthcare System in the United States.

The Sisters of Mercy first established a hospital in Sioux City, Iowa in 1890, at the request of civic leaders who sought to establish a new hospital that was not associated with city government. The hospital was established when Mother Mary Agatha Murphy purchased a house and converted it into a hospital. That hospital was named St. Joseph Mercy Hospital. The Sisters of Mercy purchased St. Vincent’s Hospital in Sioux City, Iowa, from the Benedictine Sisters in 1977, and merged the two hospitals under the name Marian Health Center. In 1999, Marian Health Center’s name was formally changed to Mercy Medical CenterSioux City.

Mercy Medical CenterSioux City (the Hospital) is one of the hospitals owned and operated by defendant Mercy Health Services – Iowa Corp., doing business as Mercy Medical Center (Mercy). Mercy is, in turn, a Delaware, non-stock corporation. Mercy is a non-profit corporation under Section 501(c)(3) of the Internal Revenue Code, 26 U.S.C. § 501(c)(3). Mercy owns and operates hospitals and other health services entities in the state of Iowa, including Mercy Medical CenterSioux City (the Hospital). Mercy is a wholly controlled subsidiary of Trinity Health – Michigan, and Trinity Health – Michigan is the sole corporate member of Mercy. Trinity Health – Michigan is a Michigan non-profit corporation that seeks to act in ways that promote the spiritual teachings and principles of the Roman Catholic Church. Trinity Health – Michigan is, in its turn, a wholly controlled subsidiary of Trinity Health Corporation, an Indiana non-profit corporation.

Trinity Health Corporation and Mercy are sponsored by Catholic Health Ministries. Catholic Health Ministries is a public juridic person of the Roman Catholic Church, and its activities are carried out in a manner consistent with the guidelines and directives of Catholic Health Ministries arid the Roman Catholic Church. The Roman Catholic Church recognizes Catholic Health Ministries as an entity that acts in the name of the Church with respect to Church sponsored work.

In the event of dissolution, all of Mercy’s assets must be distributed to Trinity Health – Michigan, provided that upon dissolution Trinity Health – Michigan is an existing, benevolent, charitable, scientific, religious, or educational institution, and is qualified as a tax exempt organization under Internal Revenue Code section 501(c)(3). If Trinity Health – Michigan, is not so qualified, the assets of Mercy must be distributed to an organization that Trinity Health – Michigan designates, provided that organization meets all of the criteria set forth above.

Mercy’s mission is to continue the healing ministry of the Catholic Church and to promote the well being of the people it serves by living the values of compassion, respect, concern for the poor, excellence, and stewardship. Mercy fulfills its mission, and thus advances the healing ministries of the Catholic Church, by engaging in activities that permit Mercy to prevent disease and promote public health; care for the sick, injured and disabled; conduct medically related research; and otherwise further charitable, scientific, and educational endeavors and support and provide services and programs for the health, well being, and benefit of all people. To further its mission, Mercy owns, operates, and manages hospitals, health care and related supporting or ancillary facilities, office buildings, clinics, outpatient facilities, intermediate care facilities, nursing homes, and other facilities that promote or support the aforementioned health services activities. Under its Bylaws, Mercy must conduct its activities in a manner consistent with The Guiding Principles for Catholic Health Ministries and its Apostolic Works, the teachings of the Roman Catholic Church, and other directives promulgated by Catholic Health Ministries. It must also act in a manner that promotes the values and principles inherent in the medical-moral teachings of the Church, including the Ethical and Religious Directives for Catholic Health Care Services, as approved by the National Conference of Catholic Bishops.

During orientation, new employees of the Hospital are informed of Mercy’s Catholic history, its Catholic identity, and its Catholic mission. The Hospital’s employee policy manual informs employees of the Hospital’s Catholic background and of its Catholic mission. A chaplain from the medical center’s Pastoral Care Department leads morning and afternoon prayers and devotions on a daily basis. The prayers and devotions are broadcast over the Hospital’s loudspeakers. All employees are invited to participate. The Hospital has a chapel on its premises. A Catholic mass, including scripture readings from the Bible, is held in the chapel at noon on a daily basis. The Hospital also holds services at its chapel on Catholic Holy Days of Obligation, including traditional Stations of the Cross during Lent. Bibles are made available to patients and family members, both in the chapel and in the patient rooms. During Advent, the Hospital displays two nativity scenes depicting Christ’s birth. One of the nativity scenes is live. The Hospital displays other religious symbols throughout its facilities. All patient rooms have a cross on the wall. Crosses are displayed throughout the Hospital’s facilities. There is a statue of Jesus Christ at the main entrance to the Hospital. At the patient entrance to the Hospital, a religious painting is displayed. Artworks depicting Christ or other religious scenes are also displayed throughout the Hospital.

Beginning in 2002, the Hospital began an initiative that resulted in promoting the “Renewed Culture” of Mercy. Mercy chose “F.I.S.H.” as a symbol of its Renewed Culture. The symbol associated with F.I.S.H. was used by early Christians to share their faith while avoiding persecution. As an acronym, F.I.S.H. stands for “Faith-Inspired Service and Healing.” Mercy’s Faith-Inspired Service and Healing initiative is explained to all new employees during orientation. New employees are taught that each of these four characteristics, Faith, Inspired, Service and Healing, is essential to Mercy fulfilling its mission. During orientation, new employees are provided a bookmark and lapel pin both of which display the F.I.S.H. symbol. The F.I.S.H. symbol is displayed throughout the Hospital, on letterhead, on the website, on the intranet, on computer screen savers, and on murals and walls. The Hospital annually honors an employee who illustrates exceptional performance that represents and demonstrates the employee’s commitment to the Hospital’s values and the Hospital’s culture of Faith Inspired Service and Healing. The award is named after Sister Catherine McAuley, and nominees are evaluated in areas including compassion, stewardship, respect, concern for those who are poor, excellence, faith, inspiration, service, and healing. In May of 2006, Sister Marlys Becker, a Chaplain at Mercy, was honored as the most recent recipient of the award.

The Pastoral Care Department includes four full-time chaplains, one part-time chaplain, and three on-call chaplains. Volunteers also provide Chaplain services, including Deacon candidates from the Sioux City and Sioux Falls Catholic Dioceses. Consistent with Trinity Health guidelines, Mercy has a Director of Mission Services and Ethics who provides leadership for Mercy’s mission services and who promotes the mission and philosophy of Trinity Health and Mercy Health Network. The person who holds this position is required to be Roman Catholic. The Director of Mission Services and Ethics also serves as the Director of the Pastoral Care Department.

Plaintiff did not dispute any of the facts stated above.

The parties agreed that Mercy has 2,100 employees in the Siouxland area. Mercy recruited its employees from many sources, but while plaintiff contended that none of those sources were church or religion based, Mercy contended that some of the referral sources may be church or religion based. The parties did agree, however, that Mercy had an Equal Employment Opportunity/Workforce Diversity Policy. Although the parties disputed the precise language of the policy, the dispute over the precise language of the policy seemed to concern matters of accuracy, rather than the import of the language.. Mercy submitted that the language was as follows:

It is the policy of Mercy to provide equal employment opportunities in all aspects of employer/staff member relations and not discriminate for any reason prohibited by law. Mercy is further committed to going beyond the legal requirements of equal employment opportunity to take action to achieve diversity in our working environment.

Mercy did not require its employees to disclose their religious affiliations, with one exception: Pursuant to a mandate in the Ethical and Religious Directives for Catholic Health Care Services, the Director of Mission and Ethics was required to disclose his or her religious affiliation, because the position required the employee serving in that capacity to have a Roman Catholic religious affirmation.

Mercy admitted that it did not require all of its employees to attend specific religious instruction, seminars, or workshops, but argued that certain employees were required to attend religious instructions, seminars, and workshops in the course of performing their jobs. Only the person in the Pastoral Care Chaplain position at Mercy was required to conduct religious activities as an essential function of the job. According to plaintiff, 10 of the 15 members of Mercy’s Board of Directors were Catholic; Mercy admitted that two-thirds of the board members were “of the Roman Catholic religious affiliation.”

Plaintiff contended, and Mercy did not dispute, that plaintiff filed a complaint with the Iowa Civil Rights Commission (ICRC) alleging religious discrimination by Mercy, and several months later, filed a second complaint with the ICRC alleging retaliation. Plaintiff contended that the ICRC cross-filed both of plaintiff’s administrative complaints with the federal Equal Employment Opportunity Commission (EEOC); Mercy contended that there was no support for this contention. Mercy did not dispute that the ICRC conducted an investigation of plaintiff’s administrative complaints and issued “probable cause” findings that there was probable cause to believe that religious discrimination and retaliation had taken place. Mercy did not raise the “religious organization” exemptions in the administrative proceedings.

Mercy was a “religious organization” entitled to an exemption from Title VII religious discrimination claims. 42 U.S.C. § 2000e-1(a) exempts religious organizations from Title VII’s prohibition against discrimination in employment on the basis of religion by providing:

This subchapter [i.e., Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.] 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.

Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 336-340, 107 S. Ct. 2862, 97 L. Ed. 2d 273 (1987), concluded that this provision passed constitutional muster, over objections that it violated the Establishment Clause and the Equal Protection Clause of the United States Constitution. See also Scharon v. St. Luke’s Episcopal Presbyterian Hospitals, 929 F.2d 360 (8th Cir. 1991) (applying Title VII to sex discrimination claims by the chaplain of a hospital with a religious affiliation would require “excessive entanglement with religion”). The “religious organization” exemption was made “[i]n recognition of the constitutionally-protected interest of religious organizations in making religiously-motivated employment decisions.” Hall v. Baptist Mem. Health Care Corp., 215 F.3d 618, 623 (6th Cir. 2000), Case # 803.

Under § 2000e-1(a), as amended in 1972, it is not necessary that the activities of the employer be “religious” activities for the exemption to apply. See Amos, 483 U.S. at 332 n.9; see also id. at 331 & 340 (holding that application of the § 2000e-1(a) exemption to “secular non-profit activities of religious organizations” does not violate the Establishment Clause of the First Amendment); Lown v. Salvation Army, Inc., 393 F. Supp. 2d 223, 247 (S.D.N.Y. 2005), Case # 2051 (as amended in 1972, the § 2000e-1(a) exemption applies “to any activities of religious organizations, regardless of whether those activities are religious or secular in nature”). On the other hand, the provision does not “confer upon religious organizations the right to make those same [employment] decisions on the basis of race, sex, or national origin.” Rayburn v. General Conference of Seventh Day Adventists, 772 F.2d 1164, 1166 (4th Cir. 1985), cert. denied, 478 U.S. 1020, 106 S. Ct. 3333, 92 L. Ed. 2d 739 (1986); accord Petruska v. Gannon Univ., ___ F.3d ___ , ___ , 2006 WL 2548343, *4 (3d Cir. Sept. 6, 2006), Case # 2552; Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 658 (6th Cir. 2000), Case # 764.

In determining whether an institution or entity is entitled to assert the exemption, the court must “look at all the facts,” and in making this inquiry, “[i]t is appropriate to consider and weigh the religious and secular characteristics of the institution.” Hall, 215 F.3d at 624, Case # 803.

In Hall, the court treated the “religious school” exemption in 42 U.S.C. § 2000e-2(e)(2) – permitting religious educational institutions “to hire and employ employees of a particular religion if such school . . . 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 other educational institution is directed toward the propagation of a particular religion” – as a more specific exemption than the “religious organization” exemption in § 2000e-1(a). See id., Case # 803. Thus, if anything, Hall stated more specific factors, for purposes of the § 2000e-2(e)(2) exemption, than are required for application of the § 2000e-1(a) exemption. In Hall, the court identified pertinent factors for determining whether the exemptions should apply as including an examination of the “religious nature” of the purported “religious organization,” as demonstrated by such things as whether it was supported and controlled by a religious corporation; whether and to what extent its purpose was making the interrelated religious/service mission of the pertinent religious denomination a reality; and whether the institution was founded by sectarian entities. Id. at 624-25. The court also looked at the “atmosphere” of the entity, including whether that “atmosphere” was “permeated with religious overtones”; where and how it recruited its students or employees; whether prospective students were informed of the religious mission of the entity; whether incoming students were informed of the religious mission at orientation; whether materials and facilities were decorated with religious images; whether religious studies were required; whether regular religious ceremonies and practices were observed; and whether the entity hosted religious programs. Id. at 625. The court held that the fact that the institution trained its students in secular professions, in that case, health care, did not transform the institution into one that was secular. Id., Case # 803.

An earlier case, Killinger v. Samford University, 113 F.3d 196 (11th Cir. 1997), addressed the qualification of an ostensibly religious university to assert the “religious organization” exemption in § 2000e-1(a), rather than the more specific “religious school” exemption in § 2000e-2(e)(2). In finding that the university was a “religious organization” within the meaning of § 2000e-1(a), the court rejected the plaintiff’s contention that the university was not sufficiently “sectarian,” because “rigid sectarianism” is not required to invoke the exemption, nor had prior decisions required that all employees (or students) of the institution belong to the sponsoring sect. Id. at 198-99, noting that, in EEOC v. Mississippi College, 626 F.2d 477, 479 (5th Cir. 1980), 95% of the faculty and 88% of a Baptist college were Baptist. The Killinger court then noted numerous factors that were pertinent to its conclusion that the university qualified for the “religious organization” exemption: The college was founded as a “theological” institution by the Alabama Baptist State Convention, and while the Convention no longer had the authority to elect the school’s trustees, all of the trustees were and, with only one exception, always had been Baptist; seven percent of the institution’s annual budget came from the Convention, and that sum was the largest single source of funding; the university reported its financial status to the Convention and another Baptist institution; the school was a member of the Association of Baptist Colleges and Schools; all faculty were required to subscribe to the 1963 Baptist Statement of Faith and Message, and both faculty contracts and the faculty handbook affirmed this commitment; the school’s charter designated its chief purpose to be the promotion of the Christian religion; all students were required to attend chapel; and the IRS had granted the school religious exemptions. Killinger 113 F.3d at 199. The court never suggested, however, that any or all of these factors were required for an institution to assert the exemption. Moreover, in Killinger, the court rejected the plaintiff’s contention that the religious institution is required to establish a causal relationship between a specific religious policy and the termination of the employee; the university’s policy included its general purpose, principles, and tendencies as a religious institution, and there was no requirement that there be a strict policy of religious discrimination in employment decisions before the institution could assert the exemption. Id. at 199-200. See also Wirth v. College of the Ozarks, 26 F. Supp. 2d 1185, 1188 (W.D. Mo. 1998), Case # 359 (finding that a college founded by the Presbyterian Church Synod was a “religious corporation” exempt from claims of religious discrimination, because the college was incorporated as a not-for-profit corporation, its charter mission was to provide a Christian education, the college was a member of the Coalition for Christian Colleges and Universities, a national organization of evangelical Christian institutions, and a member of the Association of Presbyterian Colleges and Universities; the fact that the college was non-denominational did not undermine its exempt status, because the exemption applied notwithstanding the particular beliefs that the religious corporation sought to foster).

Here, both the “nature” of Mercy and the “atmosphere” at Mercy were unequivocally “religious.” See Hall, 215 F.3d at 624-25, Case # 803. Mercy’s “nature” was undisputedly religious, because it was founded by sectarian entities, the Sisters of Mercy; it was supported and controlled by a Catholic institution, Trinity Health – Michigan, a Michigan non-profit corporation that sought to act in ways that promoted the spiritual teachings and principles of the Roman Catholic Church; and its purpose was making the interrelated religious/service mission of the Catholic Church a reality. It was undisputed that Mercy’s mission was to continue the healing ministry of the Catholic Church and to promote the well being of the people it served by living the values of compassion, respect, concern for the poor, excellence, and stewardship. See id. (identifying similar factors); Killinger, 113 F.3d at 199 (also looking at whether the purported “religious organization” was founded, controlled, and funded by sectarian institutions).

Mercy’s “atmosphere” was also undisputedly “religious,” because as in Hall, the “atmosphere” was “permeated with religious overtones,” as demonstrated by religious decorations and iconography throughout the Hospital; handbooks and orientation materials for employees that informed them of Mercy’s religious mission and religious foundation; the F.I.S.H. initiative, which reaffirmed the religious values of the institution; the regular practice of religious ceremonies, such as prayers and devotions broadcast on the hospital speaker system; and the well-developed pastoral care program with a staff of on-site chaplains. See id., Case # 803. (identifying similar factors contributing to the religious “atmosphere” of the institution); Killinger, 113 F.3d at 199 (noting that faculty contacts and handbooks and student orientation materials informed faculty and students of the religious mission and purpose of the institution, that religious education was required, and that religious ceremonies were observed).

Plaintiff contended, however, that members of Mercy’s governing board were not required to be Catholic and, in fact, only ten of the fifteen members of the board were Catholic, that Mercy recruited its employees from the population at large, using many sources, none of which could be characterized as “Catholic,” and that Mercy did not require its employees to take religious instruction or require a particular religious affiliation for any employee other than the Director of Mission and Ethics, who was also the Director of the Pastoral Care Department.

First, Mercy disputed plaintiff’s contention that none of the sources from which it recruited its employees could be characterized as “Catholic.” Second, leaving aside whether Mercy disputed plaintiff’s contentions, nothing plaintiff cited was more than an isolated factor in what was an otherwise overwhelmingly religious context. Third, as to the “mixed membership” of the board and the employee pool, and the fact that only one position was expressly required to be occupied by a Catholic, “strict” or “rigid” sectarianism simply is not required. See Killinger, 113 F.3d at 198-99. Moreover, Mercy clearly articulated to its employees and actively pursued a policy that included its general purpose, principles, and tendencies as a religious institution. There was no requirement that Mercy employ a strict policy of religious discrimination in employment decisions to assert the exemption. Killinger, 113 F.3d at 199-200.

Nor did plaintiff’s contention that Mercy’s purpose to provide health care was “secular” change the outcome, because it is not necessary that the activities of the organization be “religious” activities for either the organization or the activities to be exempt. See Amos, 483 U.S. at 332 n.9; see also id. at 331 & 340 (applying the § 2000e-1(a) exemption to “secular non-profit activities of religious organizations” does not violate the Establishment Clause of the First Amendment); Hall, 215 F.3d at 625, Case # 803 (fact that the institution trained its students in a secular profession, health care, did not transform the institution into one that was “secular”); Lown, 393 F. Supp. 2d at 247, Case # 2051 (as amended in 1972, the § 2000e-1(a) exemption applies “to any activities of religious organizations, regardless of whether those activities are religious or secular in nature”).

Mercy did not waive the exemption (1) by holding itself out as an equal opportunity employer; or (2) by failing to assert the exemption in proceedings before the ICRC. Plaintiff asserted that Mercy waived the exemption in two ways: (1) by holding itself out as an equal opportunity employer; and (2) by failing to assert the exemption in proceedings before the ICRC. The first argument failed in Hall, because the court found that “the statutory exemptions from religious discrimination claims under Title VII cannot be waived by either party.” Hall, 215 F.3d at 625, Case # 803, citing Little v. Wuerl, 929 F.2d 944, 951 (3rd Cir. 1991); Siegel v. Truett-McConnell College, Inc., 13 F. Supp. 2d 1335, 1345 (N.D. Ga. 1994), aff’d, 73 F.3d 1108 (11th Cir. 1995) (table op.). As the court explained in Hall, 215 F.3d at 625, Case # 803:

The exemptions reflect a decision by Congress that religious organizations have a constitutional right to be free from government intervention. Id. “Once Congress stated that ‘[t]his title shall not apply’ to religiously-motivated employment decisions by religious organizations,” neither party could expand the statute’s scope. Siegel, 13 F. Supp. 2d at 1345 (quoting Little, 929 F.2d at 951). Accordingly, the court in Ward v. Hengle, 124 Ohio App.3d 396, 400, 706 N.E.2d 392 (1997), Case # 7, held that the trial court need not even determine whether a church waived its Title VII exemption from religious discrimination claims based on a statement in its employment handbook that it would not discriminate against its personnel on the basis of religion. See also Siegel, 13 F. Supp. 2d at 1344 (government funds are most likely available to all institutions of higher learning whether or not they have a religious affiliation).

The inability of either party to waive the “religious organization” exemption applied here to both plaintiff’s assertion of waiver based on Mercy’s equal employment opportunity policy and her assertion of waiver based on Mercy’s failure to raise the exemption before the ICRC.

Moreover, while Mercy did have an Equal Employment Opportunity/Workforce Diversity Policy, that policy contained no undertaking not to discriminate against its personnel on the basis of religion. Compare Siegel, 13 F. Supp. 2d at 1344 (the religious organization’s employment handbook contained such an undertaking). Rather, Mercy’s policy only stated that Mercy would not discriminate “for any reason prohibited by law,” and religious discrimination in employment by a religious organization is not “prohibited by law.” Thus, Mercy’s equal employment opportunity policy did not waive an exemption for religious discrimination claims.

The “religious organization” exemption applied to plaintiff’s religious discrimination claim.The statute exempts religious entities . . . from [Title VII’s] nondiscrimination mandate to the extent that an employment decision is based on an individual’s religious preferences.” Petruska, ___ F.3d at ___, 2006 WL 2548343 at *4, Case # 2552. More specifically, “[t]he decision to employ individuals ‘of a particular religion’ under § 2000e-1(a) and § 2000e-2(e)(2) has been interpreted to include the decision to terminate an employee whose conduct or religious beliefs are inconsistent with those of its employer.” Hall, 215 F.3d at 624, Case # 803, citing as examples Little v. Wuerl, 929 F.2d 944, 951 (3rd Cir. 1991), in which the court concluded that the Title VII exemption included the decision of a parochial school to terminate a tenured Protestant teacher who failed to validate her second marriage by first seeking an annulment of her previous marriage through the proper canonical procedures of the Catholic church, and Killinger v. Samford Univ., 113 F.3d 196, 198 (11th Cir. 1997), in which the court concluded that the Title VII exemption included the decision of a Baptist university to remove a Baptist faculty member from his teaching position because his religious beliefs differed from those of the dean.

In Killinger, the court concluded that the § 2000e-1(a) exemption “allows religious institutions to employ only persons whose beliefs are consistent with the employer’s when the work is connected with carrying out the institution’s activities.” Killinger, 113 F.3d at 200. However, as mentioned above, it is not necessary that the activities of the employer be “religious” activities. See Amos, 483 U.S. at 332 n.9 (noting that, “[p]rior to [1972], § 702 exempted only the religious activities of religious employers from the statutory proscription against religious discrimination in employment,” but “[t]he 1972 amendment extend[ed] the exemption to all activities of religious organizations”); see also id. at 331 & 340 (applying the § 2000e-1(a) exemption to “secular non-profit activities of religious organizations” does not violate the Establishment Clause of the First Amendment); Lown, 393 F. Supp. 2d at 247, Case # 2051 (as amended in 1972, the § 2000e-1(a) exemption applies “to any activities of religious organizations, regardless of whether those activities are religious or secular in nature”). Nor is it necessary that the employee be engaged in “religious” duties. Killinger, 113 F.3d at 199-200 (the institution is not required to demonstrate any “causal relationship” between a specific religious policy and the employee’s termination from her “secular” position to invoke the exemption); Siegel, 13 F. Supp. 2d at 1339 (“whether an employee’s duties within the non-profit organization are secular or not, the religious exemption can be used as a basis for termination”) (quoting Dodge v. Salvation Army, 1989WL53857, *2 (S.D. Miss. 1989)).

The conduct by Mercy that plaintiff contended constituted religious discrimination – discriminating against, and ultimately firing, plaintiff because of her Wiccan religious beliefs and activities motivated by those religious beliefs, including reading Wiccan literature while at work – appeared to fall squarely within the scope of the exemption. Such conduct was precisely basing employment decisions on plaintiff individual religious preferences, see Petruska, ___ F.3d at ___, 2006 WL 2548343 at *4, Case # 2552, and terminating her employment because her conduct or religious beliefs were inconsistent with those of her employer. Hall, 215 F.3d at 624, Case # 803.

Indeed, plaintiff did not contend otherwise, at least as to her religious discrimination claims. Plaintiff did contend, however, that her position and job duties were “secular.” But even assuming that she was correct, the fact that her duties were “secular” did not require a different result. Just as there is no requirement that the employer be engaged in “religious” activities to invoke the exemption, there is no requirement that the employee be engaged in “religious” duties for the exemption to apply to the employee’s claims. See Siegel, 13 F. Supp. 2d at 1339 (relying on Amos to hold that an employee’s “secular” duties do not make the “religious organization” exemption inapplicable). Similarly, Mercy was not required to demonstrate any “causal relationship” between a specific religious policy and plaintiff’s termination from her “secular” position as a telemetry technician to invoke the exemption. Killinger, 113 F.3d at 199-200.

The “religious organization” exemption applied to plaintiff’s retaliation claim. In Lown v. Salvation Army, Inc., 393 F. Supp. 2d 223, 254 (S.D.N.Y. 2005), Case # 2051, the court disposed of the Title VII retaliation claim of employees of a “religious organization” succinctly as follows:

Plaintiffs’ Title VII retaliation claim must be dismissed because the broad language of Section 702 provides that “[t]his subchapter shall not apply . . . to a religious . . . institution . . . with respect to the employment of. individuals of a particular religion. . . .” 42 U.S.C. § 2000e-1(a). Title VII’s anti-retaliation provision, 42 U. S.C. § 2000e-3(a), is contained in the same subchapter as Section 702. Accordingly, it does not apply here. See Hall, 215 F.3d at 625, Case # 803 (Section 702 “reflect[s] a decision by Congress that religious organizations have a constitutional right to be free from governmental intervention.”).

As a matter of “plain language,” the exemption in § 2000e-1(a) for “religious organizations” from “[t]his subchapter,” necessarily includes an exemption from the anti-retaliation provision in 42 U.S.C. § 2000e-3(a), which is in the same subchapter. Moreover, it makes little sense to permit retaliation claims, because to do so would erode the intended effect of the exemptions, which is to recognize “the constitutionally-protected interest of religious organizations in making religiously-motivated employment decisions,” Hall, 215 F.3d at 623, Case # 803, at least where the underlying claim that the employee was allegedly retaliated against for asserting is a religious discrimination claim. Therefore, Mercy’s § 2000e-1(a) “religious organization” exemption extended to plaintiff’s retaliation claim, based on retaliation for asserting religious discrimination, as well as her underlying religious discrimination claim.

The ICRA’s “bona fide religious institution” exemption. Plaintiff had also asserted religious discrimination and retaliation claims pursuant to the Iowa Civil Rights Act (ICRA), Iowa Code Ch. 216. Mercy asserted that it was also entitled to summary judgment on those claims, because, as a matter of law, it was entitled to assert the exemption from employment discrimination claims allowed to “bona fide religious institutions.”

The ICRA defined various “unfair or discriminatory” employment practices, including discrimination in employment “because of the age, race, creed, color, sex, national origin, religion, or disability” of the employee or applicant. Iowa Code § 216.6(1)(a). However, like Title VII, Iowa Code § 216.6 of the ICRA also provided exemptions for religious entities from claims of religious discrimination, as follows:

6. This section shall not apply to:

. . . . .

d. Any bona fide religious institution or its educational facility, association, corporation, or society with respect to any qualifications for employment based on religion when such qualifications are related to a bona fide religious purpose. A religious qualification for instructional personnel or an administrative officer, serving in a supervisory capacity of a bona fide religious educational facility or religious institution, shall be presumed to be a bona fide occupational qualification.

Iowa Code § 216.6(6)(d).

No court had ever interpreted this provision. Plaintiff argued that this exemption employed different language than the Title VII exemption and should be interpreted differently. She maintained that a fair reading of the Iowa exemption was that it applies only if the required religious qualification of employees has a bona fide religious purpose, which applies to employees such as instructional or supervisory personnel. In contrast, she contended that her job as a telemetry technician could not reasonably be held to require any religious qualification. While Mercy conceded that there were differences in the language of the state and federal exemptions, it contended that the language was not so materially different that the state exemption should be interpreted differently.

However, the district court decided to decline to exercise supplemental jurisdiction over plaintiff’s state-law religious discrimination and retaliation claims, as it determined that Mercy was entitled to summary judgment on the federal claims over which the court had original jurisdiction. The court found that comity and fairness strongly suggested that the court should decline to consider whether Mercy was entitled to assert the ICRA “bona fide religious institution” exemption or whether that exemption, if Mercy was entitled to raise it, exempted Mercy from plaintiff’s religious discrimination and retaliation claims. First, the language of the ICRA exemption was different, perhaps in material ways, from the Title VII exemption. Although the Iowa Supreme Court had repeatedly noted that, “[b]ecause the ICRA is in part modeled after Title VII, we have traditionally looked to federal law for guidance in interpreting it,” McElroy v. State, 703 N.W.2d 385, 391 (Iowa 2005), where, as here, the provisions of the state and federal statutes have potentially materially different language, courts should be reluctant to assume that the exemption provision of the ICRA was “modeled after” the comparable exemption provision of Title VII, and courts should be decidedly reluctant to look to the federal law interpreting the federal provision for guidance in interpreting the state provision. Second, except where other factors weigh strongly in favor of exercising supplemental jurisdiction, the court believed that interpretation of a state statute as a matter of first impression should be left to the state courts. Indeed, 28 U.S.C. § 1367(c)(1) provides that the district courts may decline to exercise supplemental jurisdiction over a claim under § 1367(a), if “the claim raises novel or complex issues of State law.” See Fielder v. Credit Acceptance Corp., 188 F.3d 1031, 1038 (8th Cir. 1999)(“[N]ovel, complex, and important issues of state law on which the [state] appellate courts have given us little or no prior guidance . . . are precisely the types of issues as to which federal courts should hesitate to exercise § 1367 supplemental jurisdiction.”).

See the court’s opinion for other factors which it said dictated that it should decline to exercise supplemental jurisdiction over the remaining state-law claims.

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