Demkovich v. Archdiocese of Chicago, The et al

Filing 36

MEMORANDUM Opinion and Order signed by the Honorable Edmond E. Chang on 9/30/2018: For the reasons stated in the Opinion, the Defendants' motion 18 21 to dismiss is granted in part and denied in part. At the next status hearing, the Court will discuss the discovery plan going forward. The parties are also strongly encouraged to engage in settlement negotiations before launching into discovery.Emailed notice(eec)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SANDOR DEMKOVICH,
Plaintiff,
v.
ST. ANDREW THE APOSTLE PARISH,
CALUMET CITY; and,
THE ARCHDIOCESE OF CHICAGO,
Defendants.

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No. 1:16-cv-11576
Judge Edmond E. Chang

MEMORANDUM OPINION AND ORDER
Plaintiff Sandor Demkovich brings this suit against St. Andrew the Apostle
Parish in Calumet City, Illinois, and the Archdiocese of Chicago. He alleges
employment discrimination based on: (1) sex, sexual orientation, and marital status
under Title VII, 42 U.S.C. § 2000e et seq.; the Illinois Human Rights Act, 775 ILCS
5/2-101 et seq.; and the Cook County Human Rights Ordinance, Cook County, Ill.,
Code of Ordinances § 42-30 et seq.; and (2) disability under the Americans with
Disabilities Act, 42 U.S.C. § 12112 et seq., and the Illinois Human Rights Act,
755 ILCS 5/1-102 et seq.1 R. 16, Am. Compl. ¶ 1.2 In the original complaint,
Demkovich alleged that Reverend Jacek Dada, pastor of St. Andrew Parish, fired

1This

Court has subject matter jurisdiction over Demkovich’s federal claims under
28 U.S.C. § 1331 and 42 U.S.C. § 2000e-5(f)(3), and supplemental jurisdiction over the state
law claims under 28 U.S.C. § 1367(a). The defense argument on the “ministerial exception”
is an affirmative defense, not an argument for lack of subject matter jurisdiction. See
Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171, 195 n.4
(2012).
2Citations to the record are noted as “R.” followed by the docket number and the page
or paragraph number.

Demkovich because he entered into a same-sex marriage and because of his
disabilities (diabetes and a metabolic syndrome). R. 1, Compl. ¶¶ 41, 51, 63, 77, 89.
In September 2017, the Court dismissed the complaint (though without
prejudice) on the grounds that the discrimination and wrongful-termination claims
were barred by the First Amendment’s “ministerial exception.” R. 15, Opinion (Sept.
29, 2017). Demkovich then filed an amended complaint, alleging much of the same
discriminatory conduct, but modifying his claims to challenge the hostile work
environment, rather than the firing itself. Am Compl. at 9-15. In contrast to the
original complaint, which sought relief arising from the firing,3 he now seeks damages
caused by the emotional distress, mental anguish, and physical ailments he allegedly
suffered from the hostile work environment. Id. The Amended Complaint thus does
not seek relief for any adverse tangible employment action, but rather for the
damages caused by the alleged discriminatory insults and remarks. The Archdiocese
(for convenience’s sake, this Opinion will collectively refer to the two Defendants that
way) now moves to dismiss the Amended Complaint, again arguing that the
ministerial exception bars the claims. R. 21, Defs.’ Supp. Mot. Dismiss. For the
reasons discussed below, the Court first holds that the ministerial exception does not
categorically bar hostile work environment claims that do not seek relief for a
tangible employment action. Instead, those types of claims (like the one presented
here) must be evaluated on a case-by-case basis for excessive intrusion on the
religious institution’s First Amendment rights. Based on that analysis, the

3He

originally sought reinstatement, back pay, front pay, fringe benefits,
compensatory damages, and punitive damages, all arising from the firing. Compl. at 7-14.

2

Archdiocese’s motion is granted on the claims based on sex, sexual orientation, and
marital status, but denied on the disability claims.
I. Background
For the purposes of this motion, the Court accepts as true the allegations in
the Amended Complaint. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Demkovich
worked as the “Music Director, Choir Director and Organist” for the Archdiocese of
Chicago and St. Andrew Parish in Calumet City from September 2012 until his firing
in September 2014. Am. Compl. ¶¶ 8-9. Demkovich’s immediate supervisor was
Reverend Jacek Dada, who was St. Andrew’s pastor. Id. ¶¶ 10-11.
Reverend Dada knew that Demkovich was gay and that he was engaged to
another man. Am. Compl. ¶ 13. During Demkovich’s two years of employment at St.
Andrew, Dada made remarks that reflected animus based on Demkovich’s sex and
sexual orientation, including calling Demkovich and his partner “bitches.” Id. ¶¶ 1516.4 In July 2013, Dada asked Demkovich when he planned to marry his partner, and
Demkovich responded that the wedding would be sometime in 2014. ¶ 17. Demkovich
alleges that the abusive and harassing behavior became increasingly hostile as the
wedding date approached. Id. ¶ 18. Dada repeatedly confronted and harassed other
St. Andrew’s staff members, parish members, and cantor and choir members, both in
person and on the phone, demanding information about Demkovich’s upcoming

4The

Amended Complaint also lists instances of abusive and harassing behavior
committed by Reverend Dada and other St. Andrew’s staff members based on female staff
members’ sex, and African-American and Mexican-American community members’ national
origin or race. Am. Compl. ¶ 14. Those allegations do not directly bear on Demkovich’s specific
claims.

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wedding ceremony. Id. ¶¶ 19, 23. Dada also recruited other St. Andrew’s staff
members to help him gather information about the wedding. Id. ¶ 20. The individuals
that were harassed or contacted about Demkovich’s wedding told Demkovich what
Dada was doing and reported that Dada’s behavior was distressing and causing them
anxiety. Id. ¶ 24. Dada allegedly referred to Demkovich’s wedding as a “fag wedding.”
Id. ¶ 22.
Demkovich married his partner in September 2014. Am. Compl. ¶ 27. In the
forty-eight hours before the wedding, a St. Andrew’s employee told Demkovich that
Reverend Dada intended to ask for Demkovich’s resignation because of the marriage.
Id. ¶ 25. Another employee told Demkovich that Reverend Dada had informed his
staff that he had already fired Demkovich. Id. ¶ 26. After the wedding, Dada
demanded that another staff member sign a statement swearing she attended
Demkovich’s wedding, and when she declined to sign it, Dada told her that he had
already fired Demkovich. Id. ¶¶ 28-30. Four days after the wedding, Reverend Dada
asked Demkovich to resign because of the marriage. Am. Compl. ¶¶ 31-32. When
Demkovich refused to resign, Dada fired him and said, “Your union is against the
teachings of the Catholic church.” Id. ¶ 33.
On the disability-discrimination claims, Demkovich alleges that he was
frequently harassed because of his diabetes and a metabolic syndrome. Am. Compl.
¶¶ 34-35. Reverend Dada made harassing remarks about Demkovich’s weight, often
urging him to walk Dada’s dog to lose weight, and telling Demkovich that he needed
to lose weight because Dada did not want to preach at his funeral. Id. ¶¶ 35-36. Dada

4

also repeatedly complained about the cost of keeping Demkovich on the parish’s
health and dental insurance plans because of his weight and diabetes. Id. ¶ 37. In
2012, when Demkovich declined a dinner invitation from Dada because he did not
have his insulin with him, Dada asked if Demkovich was diabetic and told him that
he needed to “get his weight under control” to help eliminate his need for insulin. Id.
¶ 38.
As discussed earlier, the original complaint sought relief for Demkovich’s
firing. Compl. ¶¶ 41, 51, 63, 77, 89. The Court granted the Archdiocese’s motion to
dismiss, agreeing that the ministerial exception barred Demkovich’s claims, but
allowed Demkovich to amend his complaint. R. 15, Opinion at 2, 15 (citing Fed. R.
Civ. P. 15(a)). Demkovich then filed this Amended Complaint, this time alleging
claims of discrimination based on a hostile work environment. Am. Compl. ¶¶ 51, 62,
73, 86, 99. The Archdiocese moves to dismiss, again invoking the ministerial
exception. Defs.’ Suppl. Mot. Dismiss.
II. Legal Standard
A complaint must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This short and plain
statement must “give the defendant fair notice of what the ... claim is and the grounds
upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). The Seventh Circuit has explained
that this rule “reflects a liberal notice pleading regime, which is intended to ‘focus
litigation on the merits of a claim’ rather than on technicalities that might keep

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plaintiffs out of court.” Brooks v. Ross, 578 F.3d 574, 580 (7th Cir. 2009) (quoting
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)).
“A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to
state a claim upon which relief may be granted.” Hallinan v. Fraternal Order of Police
of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). “[A] complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
at 570). These allegations “must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555. Factual allegationsas opposed to
mere legal conclusionsare entitled to the assumption of truth. Iqbal, 556 U.S. at
678-79.
As explained in the prior Opinion, the ministerial exception is actually an
affirmative defense, see Hosanna-Tabor Evangelical Lutheran Church & Sch. v.
E.E.O.C., 565 U.S. 171, 195 n.4 (2012), and is neither an exception to subject matter
jurisdiction nor an issue of the adequacy of the claim. R. 15, Opinion at 4. The Court
has already held that Demkovich is a “minister” for purposes of the exception. Id. at
7, 11. He does not now dispute his status as a minister, but rather contends that the
exception does not apply to his hostile work environment claims, which seek relief
only for harassment that did not result in a tangible employment action. See R. 23,
Pl.’s Resp. Br. at 2.

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III. Analysis
A. Scope of the Ministerial Exception
In light of Demkovich’s concession (for purposes of this dismissal motion) that
he is a “minister” under the ministerial exception, the primary question is whether
the ministerial exception bars claims for a hostile work environment—rather than for
refusals-to-hire or for firings—under Title VII and the ADA. Put even more precisely,
Demkovich is not seeking damages arising out of a tangible employment action (like
the firing). Instead, he seeks damages for the hostile work environment created by
the alleged discriminatory remarks and insults of Reverend Dada. The Supreme
Court’s most thorough (and recent) case on the ministerial exception does not directly
answer whether the exception applies to a hostile-environment claim that is limited
to the harassment itself, rather than a tangible employment action. Instead, the case
involved a claim for wrongful termination. Hosanna-Tabor, 565 U.S. at 188, 196
(applying ministerial exception to a disability-discrimination claim for wrongful
termination). Having said that, Hosanna-Tabor might contain a clue about the
exception’s applicability to harassment claims. In describing the purpose of the
ministerial exception, the Supreme Court explained that the exception “ensures that
the authority to select and control who will minister to the faithful—a matter strictly
ecclesiastical—is the church’s alone.” Id. at 194-95 (emphasis added) (cleaned up).5
That description of the exception’s purpose focuses on the church’s exclusive

5This

opinion uses (cleaned up) to indicate that internal quotation marks, alterations,
and citations have been omitted from quotations. See Jack Metzler, Cleaning Up Quotations,
18 JOURNAL OF APPELLATE PRACTICE AND PROCESS 143 (2017).

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authority to choose who will be its ministers. Under that reasoning, hiring and firing
decisions cannot be challenged by ministers. But scrutinizing only whether a church
has harassed one of its ministers, without inquiring into any tangible employment
action, does not necessarily undermine the purpose of the exception, at least as
described in Hosanna-Tabor. Still, Hosanna-Tabor presented the Supreme Court
only with the question of a minister’s firing, so that case cannot be taken as directly
deciding the issue. It is time to examine appellate court authority for an answer.
1. Seventh Circuit
The Archdiocese contends that in Alicea-Hernandez v. Catholic Bishop of
Chicago, 320 F.3d 698, 703 (7th Cir. 2003), the Seventh Circuit held that any claim
brought by a minister against a church is barred by the ministerial exception. Def.’s
Suppl. Mot. Dismiss at 2, 7. That is an overbroad reading of the opinion.6 It is true
that, on first glance and taken out of context, there is a sentence in the opinion that
could be read in that sweeping way: “The ‘ministerial exception’ applies without
regard to the type of claims being brought.” Alicea-Hernandez, 320 F.3d at 703. But
the context of this sentence makes all the difference. First, it is not at all clear that
the employee in the case even presented a hostile-environment claim at all, let alone
a hostile-environment claim independent of a tangible employment action. The

6Although

Alicea-Hernandez does not apply as broadly as the Archdiocese contends, it
is worth noting that Demkovich offers a meritless basis for distinguishing it. Specifically,
Demkovich argues that Alicea-Herndandez does not apply because it characterized the
ministerial exception as a problem with subject matter jurisdiction, rather than an
affirmative defense. Pl.’s Resp. Br. at 10. True, the opinion used the wrong label for the
exception, but that label had no effect on the opinion’s reasoning and its application of the
exception. The remainder of Alicea-Hernandez remains intact.

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complaint was brought pro se, and as quoted by the Seventh Circuit, the employee
alleged:
I was subjected to prolonged humiliation and emotional stress of working
under unequal and unfair conditions of employment; was excluded from
management meetings, training and information required for me to perform
my duties; was ordered evicted from the premises and replaced by a male
Hispanic with less competence and experience in Hispanic communication.
320 F.3d at 702 (emphasis added).7 Alicea-Hernandez’s complaint thus sought
damages for various tangible employment actions, including conditions that
prevented her from performing her job, rather than damages arising from racist or
sexist remarks.8 So the Seventh Circuit was not presented with the sort of claim
advanced by Demkovich: a hostile-environment claim that does not complain of a
tangible employment action.9
There is another reason to reject the idea that Alicea-Hernandez was
addressing intangible hostile-environment claims when the opinion stated that the
ministerial exception “applies without regard to the type of claims being brought.”

7See

also id. at 700 (“She bases these claims on allegations of poor office conditions,
the Church’s attempts to prevent her from rectifying those conditions, exclusion from
management meetings and communications, denial of resources necessary for her to perform
her job, and constructive discharge and subsequent replacement by a less qualified male who
received a higher salary and a more significant title for the same position.”).
8It is true that the district court opinion stated that the employee complained she was
“harassed,” 2002 WL 598517, at *1 (N.D. Ill. Apr. 18, 2002), but there is no further description
of the complaint’s allegations of the misconduct in the opinion, because the district court
concluded that she was complaining about the Church’s policies (the Seventh Circuit later
disagreed with that characterization of the complaint, 320 F.3d at 702).
9To be sure, another court and at least one scholar have read Alicea-Hernandez just
as broadly as the Archdiocese does here. See, e.g., Skrzypczak v. Roman Catholic Diocese of
Tulsa, 611 F.3d 1238, 1245 (10th Cir. 2010); Rosalie Berger Levinson, Gender Equality vs.
Religious Autonomy: Suing Religious Employers for Sexual Harassment After HosannaTabor, 11 STAN. J. CIV. RTS. & CIV. LIBERTIES 89, 95 (2015). But this Court disagrees, as
detailed in the text.

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320 F.3d at 703. That statement was made specifically in response to the employee’s
argument that the applicability of the ministerial exception depends on “the nature
of her claims and whether the discrimination in question was exclusively secular.” Id.
The opinion goes on to respond, “Here she is mistaken. The ‘ministerial exception’
applies without regard to the type of claims being brought.” Id. The crucial point
comes next: to explain the rejection of the argument, the Seventh Circuit relied on
and quoted from a Fourth Circuit decision, E.E.O.C. v. Roman Catholic Diocese of
Raleigh, N.C., 213 F.3d 795, 802 (4th Cir. 2000). Its reliance on that case
demonstrates that the Seventh Circuit was only rejecting the employee’s argument
that courts must examine whether the employer is advancing a secular or a religious
motive for the employment decision. Specifically, Alicea-Hernandez quoted, in
pertinent part:
The exception precludes any inquiry whatsoever into the reasons behind a
church’s ministerial employment decision. The church need not, for example,
proffer any religious justification for its decision, for the Free Exercise Clause
protects the act of a decision rather than the motivation behind it.
Alicea-Hernandez, 320 F.3d at 703 (cleaned up) (quoting Roman Catholic Diocese, 213
F.3d at 802). The Fourth Circuit decision too did not address whether the ministerial
exception applies to non-tangible hostile-environment claims. See Roman Catholic
Diocese, 213 F.3d at 798, 802. So when the Seventh Circuit stated, immediately
following the quote of the Fourth Circuit decision, that to “rule otherwise would
enmesh the court in endless inquiries as to whether each discriminatory act was
based in Church doctrine or simply secular animus,” 320 F.3d at 703, the meaning of
the prior pronouncement is clear: the ministerial exception applies “without regard

10

to the type of claims” means that the exception applies even if the employee claims
that the discrimination was motivated by a secular reason, rather than a religious
doctrine. That holding accurately predicted Hosanna-Tabor, 565 U.S. at 188-89 (a
church cannot be made “to accept or retain an unwanted minister,” no matter the
reason), but the holding does not go so far as to address a discrimination claim that
does not target whether a minister is selected or retained.
2. Claims that Do Not Challenge a Tangible Employment Action
So the question of whether the ministerial exception applies to claims that do
not challenge a tangible employment action remains open in this Circuit. To figure
out whether the exception applies to those sorts of claims, it would help to examine
the two extremes of discrimination claims brought by employees against their
religious employers, because the principles and rationale for the two extremes will
provide guidance on the right answer. On one end of the spectrum, as noted earlier,
the Supreme Court has made clear that the selection or retention of a minister is
completely off-limits to the courts. Hosanna-Tabor, 565 U.S. at 194-96. The choice of
who will minister to the congregation is absolutely protected by the First
Amendment. Id. at 194-95. But the Supreme Court did not decide, as also discussed
earlier, whether the exception applies outside a challenge to a minister’s selection or
retention. Id. at 196 (“The case before us is an employment discrimination suit
brought on behalf of a minister, challenging her church’s decision to fire her. Today
we hold only that the ministerial exception bars such a suit. We express no view on

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whether the exception bars other types of suits, including actions by employees
alleging breach of contract or tortious conduct by their religious employers.”).
Inching away now from the extreme of selection and retention of ministers,
other tangible employment actions taken against ministers should also be covered by
the ministerial exception. Although the Supreme Court has not weighed in on that
issue, other federal courts have adopted that principle. See, e.g., Young v. N. Illinois
Conference of United Methodist Church, 21 F.3d 184, 184, 187 (7th Cir. 1994)
(minister’s claims for denial of promotion, as well as termination, was barred); see
also Gellington v. Christian Methodist Episcopal Church, Inc., 203 F.3d 1299, 1301,
1304 (11th Cir. 2000) (minister’s retaliation and constructive discharge claims, based
on reassignment to a church 800 miles away with a substantially reduced salary,
were barred by ministerial exception); E.E.O.C. v. Catholic Univ. of Am., 83 F.3d 455,
457 (D.C. Cir. 1996) (minister’s claim for denial of tenure at the Catholic University
of America was barred); Rayburn v. Gen. Conf. of Seventh-Day Adventists, 772 F.2d
1164, 1164-65, 1171 (4th Cir. 1985) (minister’s claim for denial of pastoral position
was barred); McClure v. Salvation Army, 460 F.2d 553, 559 (5th Cir. 1972) (claims for
“the determination of a minister’s salary, his place of assignment, and the duty he is
to perform in the furtherance of the religious mission of the church” were barred).
The extension of the ministerial exception to claims that challenge tangible
employment actions is consistent with the exception’s underlying rationale. Those
claims, although not directly challenging a selection or retention of a minister, still
intrude on a church’s internal governance of its minister’s employment duties. See

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Alicea-Hernandez, 320 F.3d at 703 (“[A]n investigation and review of such matters of
church administration and government as a minister’s salary, his place of assignment
and his duty, which involve a person at the heart of any religious organization, could
only produce by its coercive effect the very opposite of that separation of church and
State contemplated by the First Amendment.”) (quoting McClure, 460 F.2d at 560).
Tangible employment actions are, by definition, directly related to the church’s
authority as the employer of the minister. See Burlington Indus. v. Ellerth, 524 U.S.
742, 761-62 (1998) (defining tangible employment actions as “a significant change in
employment status, such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a significant change in
benefits”) (emphasis added). As Ellerth explained, “[t]angible employment actions are
the means by which the supervisor brings the official power of the enterprise to bear
on subordinates. A tangible employment decision requires an official act of the
enterprise, a company act.” Id. at 762. So when a tangible employment action is
challenged by a minister, the minister is asking a court to directly regulate the
minister’s employment status, which steps directly on the church’s governance of the
minister as a minister. The ministerial exception applies to claims that challenge a
tangible employment action.
On the other end of the spectrum, no First Amendment problem arises when a
lay employee (that is, a non-minister) of a religious employer brings an employment
claim that is unrelated to any religious belief or doctrine. See, e.g., DeMarco v. Holy
Cross High Sch., 4 F.3d 166, 171-72 (2d Cir. 1993) (lay teacher’s Age Discrimination

13

in Employment Act (ADEA) claim for failure to renew his contract could proceed
because the claim did not implicate the religious employer’s beliefs or purpose);
E.E.O.C. v. Mississippi Coll., 626 F.2d 477, 479-80, 485-86 (5th Cir. 1980) (sex and
race discrimination claims brought by lay employee against religious-college
employer were not barred by the First Amendment because they did not implicate
any religious beliefs); Morgan v. Cent. Baptist Church of Oak Ridge, 2013 WL
12043468, at *19-20 (E.D. Tenn. Dec. 5, 2013) (allowing lay employee’s sexual
harassment and hostile work environment claims to proceed); Longo v. Regis Jesuit
High Sch. Corp., 2006 WL 197336, at *5-7 (D. Colo. Jan. 25, 2006) (holding that the
non-minister’s ADA claims were not barred by the Establishment Clause because the
employment decision did not arise from application of religious doctrine); Smith v.
Raleigh Dist. of N. Carolina Conference of United Methodist Church, 63 F. Supp. 2d
694, 712, 714, 717 (E.D.N.C. 1999) (allowing lay employee’s sexual harassment and
hostile work environment claims to proceed, as “plaintiffs’ claims present[ed] secular,
rather than ecclesiastical disputes” that could be resolved “by reference to neutral
principles of law” and did not require the court to choose “among competing religious
visions”); Guinan v. Roman Catholic Archdiocese of Indianapolis, 42 F. Supp. 2d 849,
850, 853 (S.D. Ind. 1998) (allowing lay teacher’s ADEA claim for failing to renew her
contract because the claim did not burden the church-employer’s religious rights).
But when the religious employer offers a religious justification for the challenged
conduct, then—generally speaking—the First Amendment protects against the claim,
so long as the employer proves that the religious motive is the actual motive. See, e.g.,

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DeMarco, 4 F.3d at 170-71; Bryce v. Episcopal Church in the Diocese of Colo., 289 F.3d
648, 657-59 (10th Cir. 2002) (neither ministerial employee nor her lay partner could
sustain sexual harassment claims against church for remarks made about gays,
because the remarks were made as part of ecclesiastical discussions on church policy
toward gays). Unlike the ministerial exception, however, whether the employer acted
on a religious-based motive is examined for challenges brought by non-minister
employees.
The final point is that there are limits to an employer’s invocation of a religious
motive for challenged conduct as to non-minister employees. In some situations, even
when a religious institution proves that there is a religious motive for the violation of
a generally applicable law, a balancing of interests might remove the conduct from
First Amendment protection (such as commission of a crime). See, e.g., Tomic v.
Catholic Diocese of Peoria, 442 F.3d 1036, 1039-40 (7th Cir. 2006) (noting that the
“internal-affairs exception [to employment laws] is limited,” for instance, “[a] church
could not subject its clergy to corporal punishment or require them to commit
criminal acts”); Dole v. Shenandoah Baptist Church, 899 F.2d 1399, 1392 (4th Cir.
1990) (rejecting religious school’s argument that the Fair Labor Standards Act
(FLSA) violated a religious belief, because the burden on religion would be limited
and no entanglement would arise from enforcing the FLSA); see also Employment
Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872, 877-78 (1990) (individuals
must abide a valid or neutral law of general applicability even if it proscribes or
requires conduct that is contrary to his religious practice as long as the law does not

15

violate other constitutional protections). So it is possible that a court may require
that, in a case brought by a non-minister, a religious employer comply with a valid or
neutral law of general applicability that may burden its religion in certain
circumstances.
B. Hostile Work Environment Claims
Where, then, should a minister’s challenge to a hostile work environment, with
no challenge to a tangible employment action, fall on this spectrum? In the hostileenvironment case under Title VII, the employee must allege that: “(1) [the employee]
was subject to unwelcome harassment; (2) the harassment was based on … national
origin or religion (or another reason forbidden by Title VII); (3) the harassment was
severe or pervasive so as to alter the conditions of employment and create a hostile
or abusive working environment; and (4) there is basis for employer liability.” Huri
v. Office of the Chief Judge of the Circuit Court of Cook Cty., 804 F.3d 826, 833-34 (7th
Cir. 2015). Although an employer is strictly liable for harassment that results in a
tangible employment action, Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 760-61
(1998), when no tangible action is taken, or when an employee is barred from raising
claims as to those tangible actions (as by the ministerial exception), then the
employer can raise an affirmative defense, Elvig v. Calvin Presbyterian Church, 375
F.3d 951, 962 (9th Cir. 2004) (collecting cases). The affirmative defense comprises two
elements: “(a) that the employer exercised reasonable care to prevent and correct
promptly any sexually harassing behavior, and (b) that the plaintiff employee

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unreasonably failed to take advantage of any preventive or corrective opportunities
provided by the employer or to avoid harm otherwise.” Ellerth, 524 U.S. at 765.
Only two courts of appeals have addressed whether hostile work environment
claims brought by a minister are barred by the ministerial exception.10 The courts
have come to opposite conclusions. The Tenth Circuit addressed a minister’s claims
under Title VII for gender discrimination, disparate impact based on gender, and—
importantly—hostile work environment, among other claims. Skrzypczak v. Roman
Catholic Diocese of Tulsa, 611 F.3d 1238, 1240-41 (10th Cir. 2010) (emphasis added).
Skrzypczak held that “a hostile work environment claim brought by a minister …
implicate[s] a church’s spiritual functions, … involv[ing] gross substantive and
procedural entanglement with the Church’s core functions, its polity, and its
autonomy.” Id. at 1245 (cleaned up). But the Tenth Circuit relied in large part on the
same overbroad interpretation of Alicea-Hernandez as the Archdiocese proposed in
this case. As explained earlier in this Opinion, Alicea-Hernandez did not address
hostile-environment claims that do not challenge a tangible employment action.

10The

parties both cite several district and state court decisions that also come to
opposite conclusions about whether the ministerial exception bars sexual harassment claims.
Compare Def.’s Supp. Mot. Dismiss at 6-7 (citing Preece v. Covenant Presbyterian Church,
2015 WL 1826231, *7 (D. Neb. Apr. 22, 2015) (plaintiff’s sexual harassment claim is factually
entwined with plaintiff’s other employment claims and is thus barred); Ogugua v.
Archdiocese of Omaha, 2008 WL 4717121 (D. Neb. Oct. 22, 2008); Gomez v. Evangelical
Luther. Church in Am., 2008 WL 3202925 (M.D. N.C. Aug. 7, 2008)) with Pl.’s Resp. Br. at 7
n.2 (citing Nigrelli v. Catholic Bishop, 1991 WL 36712 at *4 (N.D. Ill. 1991) (holding that “in
order to determine if the plaintiff was sexually harassed, the court need not inquire into the
doctrines and religious goals of the Catholic Church … .”); Dolquist v. Heartland Presbytery,
342 F. Supp. 2d 996, 1002 (D. Kan. 2004) (holding the ministerial exception did not bar sexual
harassment claim, but this decision was decided before Skrzypczak, 611 F.3d 1238, which
holds the opposite and is controlling in the Tenth Circuit); Black v. Snyder, 471 N.W.2d 715,
721 (Minn. Ct. App. 1991) (holding the same). But those opinions are not binding so the Court
will engage in its own analysis.

17

On the other side of the split are two Ninth Circuit cases. In both cases,
ministerial employees alleged that they suffered sexual harassment in violation of
Title VII. Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 956 (9th Cir. 2004);
Bollard v. California Province of the Soc’y of Jesus, 196 F.3d 940, 944 (9th Cir. 1999).
In Elvig, an associate pastor alleged that, among other things, the pastor sexually
harassed her. 375 F.3d at 953-54. When the associate pastor made a formal complaint
to the church, no action was taken to stop the harassment, and the pastor relieved
her of certain duties, verbally abused her, and engaged in intimidating behavior. Id.
In Bollard, the plaintiff was a novice of the Jesuit order, and he alleged sexual
harassment (among other things) based on the conduct of his superiors, who “sent
him pornographic material, made unwelcome sexual advances, and engaged him in
inappropriate and unwelcome sexual discussions.” 196 F.3d at 944. The novice
reported the harassment to his superiors, but no corrective action was taken. Id.
In both cases, the Ninth Circuit engaged in an analysis under the Free Exercise
Clause and the Establishment Clause of the First Amendment.11 What the analyses
show is that when a minister brings a claim that does not challenge a tangible
employment action, then whether the First Amendment bars the claim depends on a
case-by-case analysis on the nature of the claim, the extent of the intrusion on
religious doctrine, and the extent of the entanglement with church governance
required by the particular litigation. If the nature of the claim would require that a

11In

Elvig, the court did not explicitly differentiate between the Free Exercise Clause
and the Establishment Clause in its analysis. It employed considerations from each, however,
and explicitly relied on Bollard, which, as discussed in the text, analyzed the novice’s sexual
harassment claim under each Clause.

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court take a stance on a disputed religious doctrine, then that weighs in favor of First
Amendment protection for the church. As Elvig reasoned, the Free Exercise Clause
prevents courts from “deciding among competing interpretations of church doctrine,
or other matters of an essentially ecclesiastical nature, … [meaning] a church must
retain unfettered freedom in its choice of ministers because ministers represent the
church to the people. Indeed, the ministerial relationship lies so close to the heart of
the church that it would offend the Free Exercise Clause simply to require the church
to articulate a religious justification for its personnel decisions.” Elvig, 375 F.3d at
956 (cleaned up).
If, on the other hand, no religious justification is offered at all (for a nontangible employment action), then there would be little or no risk of violating the Free
Exercise Clause. Indeed, in Bollard, the religious order allegedly stated that it
actually wanted the novice to remain a member of the order, and the order disavowed
harassment (as opposed to endorsing it). 196 F.3d at 947. In Elvig, the church denied
that the harassment occurred at all. 375 F.3d at 963. In the Ninth Circuit’s view, the
lawsuits thus presented only a narrow secular inquiry. Elvig, 375 F.3d at 963-64;
Bollard, 196 F.3d at 947-48. The Free Exercise Clause did not bar either sexual
harassment suit.
Moving on to the Establishment Clause, the Ninth Circuit again concluded
that no excessive entanglement would arise from the lawsuits. Courts employ a threepart test to determine whether a statute violates the Establishment Clause: “First,
the statute must have a secular legislative purpose; second, its principal or primary

19

effect must be one that neither advances nor inhibits religion; finally, the statute
must not foster an excessive government entanglement with religion.” Lemon v.
Kurtzman, 403 U.S. 602, 612-13 (1971) (cleaned up). Because Title VII has a secular
purpose and its principal effect neither advances nor inhibits religion, the only
element at issue is whether applying Title VII to a minister’s claim of sexual
harassment (without challenging a tangible employment action) would foster an
impermissible government entanglement with religion. Bollard, 196 F.3d at 948
(citing E.E.O.C. v. Pac. Press Pub. Ass’n, 676 F.2d 1272, 1280-81 (9th Cir. 1982)). If a
harassment claim does not challenge the retention of a minister, then (generally
speaking) no substantive entanglement problem would arise.12 Bollard, 196 F.3d at
949. Courts still must remain wary of potential procedural entanglement, because it
may be “the very process of inquiry” by the court that may “impinge on rights
guaranteed by the Religion Clauses.” Id. (quoting N.L.R.B. v. Catholic Bishop of
Chicago, 440 U.S. 490, 502 (1979)). Litigation-procedure entanglement could arise
from the length of the proceeding; the involvement of state agencies, the EEOC, and
federal courts; the application of tools of discovery to church personnel and records;
the remedies that would be imposed; and most importantly, “the potential for

12It

is not clear that the Supreme Court would divide the entanglement inquiry into
“substantive” and “procedural” entanglement. But whatever the label, the considerations are
the same. See, e.g., Agostini v. Felton, 521 U.S. 203, 232 (1997) (“To assess entanglement, we
have looked to the character and purposes of the institutions that are benefited, the nature
of the aid that the State provides, and the resulting relationship between the government
and religious authority.”) (cleaned up); N.L.R.B. v. Catholic Bishop of Chicago, 440 U.S. at
502 (“It is not only the conclusions [about religious motivations behind certain decisions] that
may be reached by the Board which may impinge on rights guaranteed by the Religion
Clauses, but also the very process of the inquiry leading to findings and conclusions.”).

20

protracted government surveillance of church activities.” Bollard, 196 F.3d at 949
(cleaned up). The Ninth Circuit ultimately concluded that neither case presented
excessive entanglement in light of the secular focus of the claims and the absence of
any attempt to obtain any directly employment-related remedy like lost pay. Id. at
949-50; Elvig, 375 F.3d at 963, 966-68.
The upshot of these cases, as well as the many cases in which non-minister
employees successfully bring claims so long as there is no excessive entanglement, is
that federal courts have been able to evaluate, on a case-by-case basis, when an
employee’s particular case would pose too much of an intrusion into the religious
employer’s Free Exercise and Establishment Clause rights. If a minister’s hostileenvironment claim does not challenge a tangible employment action and does not
pose excessive entanglement with the religious employer, then the ministerial
exception should not apply. In that setting, the hostile-environment claim “is no
greater than that attendant on any other civil suit a private litigant might pursue
against a church.” Bollard, 196 F.3d at 950; Elvig, 375 F.3d at 968. To be sure, the
fact that a minister, rather than a lay employee, is bringing the claim is relevant to
deciding whether the lawsuit poses too great a danger of excessive entanglement. But
there is no categorical bar to that narrow category of claims brought by ministers.
C. Sex, Sexual Orientation, and Marital Status
Although the ministerial exception does not bar Demkovich’s hostileenvironment claims (to repeat, he does not challenge a tangible employment action),
the Court concludes that litigation over Reverend Dada’s alleged harassment based

21

on Demkovich’s sex, sexual orientation, and marital status would excessively
entangle the government in religion. To start, the Archdiocese offers a religious
justification for the alleged derogatory remarks and other harassment: they “reflect
the pastor’s opposition, in accord with Catholic doctrine, to same sex marriage.” Def.’s
Reply Br. at 5. Whether Catholicism in fact dictates opposition to same-sex marriage
is not subject to court scrutiny. “[O]nce the court has satisfied itself that the
authorized religious body has resolved the issue, the court may not question the
resolution.” McCarthy v. Fuller, 714 F.3d 971, 976 (7th Cir. 2013); see also Serbian E.
Orthodox Diocese for U.S. of Am. & Canada v. Milivojevich, 426 U.S. 696, 718 (1976)
(a court cannot evaluate conflicting testimony in the face of an official Church
doctrine); Grussgott v. Milwaukee Jewish Day Sch., Inc., 882 F.3d 655, 660 (7th Cir.
2018) (a court must defer to a religious organization’s designation of what constitutes
religious activity “where there is no sign of subterfuge”). The Catholic Church’s
official opposition to gay marriage is commonly known (nor does Demkovich question
it), and there is no reason to question the sincerity of the Archdiocese’s belief that the
opposition is dictated by Church doctrine. This official opposition weighs as an
excessive-entanglement concern in this case, because the harassing statements and
conduct are motivated by an official Church position (or at least the Archdiocese
would defend the case on those grounds). Of course, regulating how the official
opposition is expressed is not as directly intrusive as outright punishing the Church
for holding that position (which a federal court cannot do). But it comes close, and
must weigh in favor of barring the claim under the Religion Clauses. See Bryce, 289

22

F.3d at 653, 659 (holding that church employee and her same-sex partner could not
bring sexual harassment claims based on allegedly anti-gay statements made by
reverend in letters and at church meetings because the church autonomy doctrine,
rooted in the Free Exercise Clause and Establishment Clause, gives the church the
right “to engage freely in ecclesiastical discussions”); compare Bollard, 196 F.3d at
947 (holding “the Free Exercise rationales supporting an exception to Title VII are
missing. The [defendant religious employer] do[es] not offer a religious justification
for the harassment Bollard alleges … .”); see also Korte v. Sebelius, 735 F.3d 654, 679
(7th Cir. 2013) (“[T]he Free Exercise Clause protects not just belief and profession
but also religiously motivated conduct.”).
The hostile-environment claims based on Demkovich’s sex, sexual orientation,
and marital status also pose other risks of impermissible entanglement with religion.
First, Demkovich’s status as a minister weighs in favor of more protection of the
Church under the First Amendment. Remember that the Church has absolute say in
who will be its ministers. See Hosanna-Tabor, 565 U.S. at 188-89. The Archdiocese
might very well assert that it has a heightened interest in opposing same-sex
marriage amongst those who fulfill ministerial roles. Either the Court would have to
accept that proposition as true (thus intensifying the intrusion in regulating how the
opposition is conveyed to the Church’s ministers) or the parties would have to engage
in intrusive discovery on the sincerity of that belief. Indeed, even if the proposition
would be accepted as true, the Church itself would have a litigation interest in
proving to the jury why there is a heightened interest in opposing same-sex marriage

23

amongst its ministers. That would put the Church in a position of having to
affirmatively introduce evidence of its religious justification, so the litigation’s
intrusion would not be just a matter of responding to Demkovich’s discovery requests.
The Church might even wish to offer the views of its congregants on this issue,
especially if Demkovich offered evidence from congregants that they would not be
offended by a gay music director.
Second, it is easy to foresee how the opposition to same-sex marriage would be
litigated in other ways throughout the case. For example, in order to prove that
Reverend Dada made the derogatory remarks, Demkovich’s attorney naturally would
ask Dada about the motive to make the alleged remarks. Dada might even be put in
a position to reveal whether he agrees with the official Church position, and even the
degree with which he agrees (or disagrees) with it. No doubt too Demkovich’s attorney
would want to elicit concessions from Dada that if the remarks were proven to be
made, then that would contravene the Church’s guidance on how to (or how not to)
express the official opposition to same-sex marriage.
Third, discovery over these claims would likely take a prolonged period. The
issues described above would themselves consume plenty of time (and possibly
subpoenas to congregants and expert testimony), and the Amended Complaint refers
to other staff members and congregants. The allegations span a time period of more
than one year, at least from July 2013 to September 2014. Am. Compl. ¶¶ 17, 31. So
discovery would not be concentrated on a short time period. This factor too points in
the direction of concluding that the entanglement with religion will be excessive.

24

Lastly, because the hostile-environment claim does not challenge a tangible
employment action, the Archdiocese could seek to prove an affirmative defense,
namely, that the Archdiocese took reasonable care to prevent or to correct harassment
and that Demkovich failed to take advantage of the Archdiocese’s preventive or
corrective efforts. Ellerth, 524 U.S. at 765. That too will require an examination of
the Church’s employment practices, including on preventing sexual-orientation
discrimination in particular. Again, Demkovich naturally would try to undermine the
genuineness and efficacy of prevention-and-correction efforts on that particular kind
of discrimination, raising the specter of intruding on the Archdiocese’s religiousbased opposition to same-sex marriage. All in all, there are too many circumstances—
in this particular case for this particular set of claims—that would result in excessive
entanglement with, and intrusion on, the Church’s religious doctrine to allow the
claims based on sex, sexual orientation, and marital status to move forward. Those
claims are dismissed.
D. Disability
Moving on to the disability claim, the Court first notes that the Seventh Circuit
has not yet expressly decided that the ADA ever permits a hostile work environment
claim. Instead, the Seventh Circuit has assumed—in both published and unpublished
decisions—that there is such a claim under the ADA. See, e.g., Shott v. Rush Univ.
Med. Ctr., 652 Fed.Appx. 455, 458 (7th Cir. 2016); Lloyd v. Swifty Transp., Inc., 552
F.3d 594, 603 (7th Cir. 2009); Mannie v. Potter, 394 F.3d 977, 982 (7th Cir. 2005).13

13Many

circuits have affirmatively recognized hostile work environment claims under
the ADA, and the circuits that have not explicitly recognized such claims have assumed they

25

In light of the similarity between Title VII and the ADA in protection against
discriminatory workplace conditions, this Court too assumes that the ADA does
provide for hostile work environment claims. When analyzing hostile work
environment claims under the ADA, the Seventh Circuit has “assumed that the
standards for proving such a claim would mirror those established for claims of
hostile work environment under Title VII.” Mannie, 394 F.3d at 982 (citations
omitted).
Here, the Archdiocese offers no religious explanation for the alleged disability
discrimination. The Archdiocese justifies the comments as “reflect[ing] the pastor’s
subjective views and/or evaluation of Plaintiff’s fitness for his position as a minister.”
Def.’s Reply Br. at 5. But this is not a religious justification based on any Church
doctrine or belief, at least as proffered so far by the defense. So the disability claim
does not pose the same dangers to religious entanglement as the sex, sexual
orientation, and marital-status claims. Nothing in discovery should impose on
religious doctrine on this claim. Rather, the inquiry will make secular judgments on
the nature and severity of the harassment (and whether it even happened), as well
as what, if anything, the Archdiocese did to prevent or correct it.14 The Religion
Clauses do not bar Demkovich from pursing the hostile-environment claims based on
disability.

are a viable theory of recovery when analyzing and rejecting those claims that do not survive
summary judgment on other grounds. Mashni v. Bd. of Educ. of City of Chicago, 2017 WL
3838039, at *9 (N.D. Ill. Sept. 1, 2017) (collecting cases).
14If, during discovery, the Archdiocese believes Demkovich is intruding into protected
religious territory, then the Archdiocese may raise the issue with this Court.

26

Finally, the Court rejects the Archdiocese’s argument that the Amended
Complaint fails to adequately state a claim for relief. Fed. R. Civ. P. 12(b)(6).
Demkovich alleges that his supervisor, Dada, harassed him based on his disability in
violation of the ADA and Illinois Human Rights Act. Am. Compl. ¶¶ 35-39, 41, 43, 82,
95. The Archdiocese contends that “the alleged conduct was not severe or pervasive,
was not physically threatening, and … is not alleged to have altered the terms and
conditions of Plaintiff’s employment,” so the claim must fail. Def.’s Suppl. Mot.
Dismiss at 15. But it is important to remember this case is at the pleading stage, so
Demkovich need not plead more facts than necessary to give the Archdiocese “fair
notice of [his] claims and the grounds upon which those claims rest, and the details
in [his] … Amended Complaint present a story that holds together.” Huri, 804 F.3d
at 834 (cleaned up).15 Demkovich alleged multiple instances of harassing statements
made to him by Dada about his medical condition and his disability, and the Amended
Complaint alleges the effect on Demokovich as well: the alleged discrimination made
him feel “discriminated against,” made him feel “humiliated and belittled,” “severely
damaged [his] … personal and professional reputation” and caused his “physical and
mental health [to] suffer[].” See Am. Compl. ¶¶ 43-44, 46-47; id. ¶ 35 (Dada repeatedly
encouraged Demkovich to walk Dada’s dog to get some exercise to lose weight); id.

15It

is true that many courts, at the summary judgment stage, have dismissed hostile
work environment claims based on a similar degree of evidence as alleged in the Amended
Complaint here. In every case cited by the Archdiocese in support of its argument that
Demkovich does not state a claim for a hostile work environment based on his disability, the
court dismissed the case at the summary judgment stage. Def.’s Supp. Mot. Dismiss at 13,
15; Def.’s Reply Br. at 11-12, 12 n.3. At that stage, the Archdiocese may file a summary
judgment motion, if discovery so justifies it.

27

¶ 36 (Dada would “tell Demkovich that he needed to lose weight because [Dada] didn’t
want to have to preach at Demkovich’s funeral”); id. ¶ 37 (Dada told Demkovich
several times that Demkovich’s weight and diabetes made it cost prohibitive for the
parish to include him on its health and dental insurance plans); id. ¶ 38 (on one
instance in 2012, Dada told Demkovich he needed “to ‘get his weight under control’
to help eliminate Demkovich’s need for insulin”); id. ¶ 39 (other parish employees
were overweight or suffered from chronic health issues, but Demkovich alone suffered
frequent and routine harassment because of it). At this pleading stage, Demkovich’s
allegations about the harassment are sufficient to state a hostile-environment claim.
See Huri, 804 F.3d at 834 (holding “it is premature at the pleadings stage to conclude
just how abusive [the plaintiff’s] work environment was,” and reversing the district
court’s dismissal of the plaintiff’s hostile work environment claims because the
alleged conduct, including “screaming, prayer circles, social shunning, [and] implicit
criticism”—“could plausibly be abusive.”); see also Valdivia v. Twp. High Sch. Dist.
214, 2017 WL 2114965, at *3 (N.D. Ill. May 15, 2017) (collecting in-district cases in
which the courts denied motions to dismiss hostile work environment claims based
on allegations of repeated and ongoing verbal harassment). So the hostileenvironment claims are adequately pled.

28

IV. Conclusion
For the reasons discussed, the Defendants’ motion to dismiss is granted as to
the claims based on sex, sexual orientation, and marital status, but denied as to the
claims based on disability.
ENTERED:
s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: September 30, 2018

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