SUMMERS v. WHITIS et al

Filing 54

ENTRY ON CROSS MOTIONS FOR SUMMARY JUDGMENT - In the end, Summers should have put her personal feelings aside and heeded the command of her employer. She was certainly free to disagree with the Seventh Circuit's decision, but that did not excuse her from complying with it. When Summers refused to process a marriage application for a same-sex couple, Defendants were within their rights to terminate her employment as a deputy clerk for insubordination. Therefore, Defendants' Motion for Summary Judgment (Filing No. 43 ) is GRANTED and Summers' Motion for Summary Judgment (Filing No. 38 ) is DENIED. See Entry for details. Signed by Judge Richard L. Young on 12/15/2016. (MAT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
LINDA G. SUMMERS,

)
)
Plaintiff,
)
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vs.
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SALLY WHITIS, in her official capacity as )
the Harrison County Clerk, and
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HARRISON COUNTY, INDIANA,
)
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Defendants.
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4:15-cv-00093-RLY-DML

ENTRY ON CROSS MOTIONS FOR SUMMARY JUDGMENT
Plaintiff, Linda G. Summers, formerly worked as a deputy clerk at the Harrison
County Clerk’s Office. As part of that job, she was required to process marriage licenses.
A few months after the Seventh Circuit affirmed this court’s decision to enjoin the state
of Indiana from enforcing its ban on same-sex marriage, a same-sex couple came to the
Clerk’s Office in hopes of securing a marriage license. Summers told her boss, Sally
Whitis, that she could not process the application. Whitis replied that she was required to
do so as part of her job duties, but Summers still refused. Whitis consequently processed
the application herself. The next day, Summers submitted a religious accommodation
request and Whitis terminated her employment for insubordination.
Summers filed this action pursuant to Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., alleging religious discrimination in the decision to discharge her.
All parties now move for summary judgment. The court holds that Summers’ religious
convictions did not excuse her from performing the ministerial duties associated with
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processing a marriage license, and therefore GRANTS Defendants’ motion and DENIES
Summers’ motion.
I. Background
A. The Harrison County Clerk’s Office and Summers’ Job Duties
A Harrison County resident intending to marry is required to obtain a marriage
license from either the Harrison County Clerk’s Office or the Clerk’s Office for the
county in which his/her partner resides. Ind. Code §§ 31-11-4-3, 31-11-4-1. The Clerk’s
Office is responsible for recording marriage applications, including the licenses and
certificates of marriage 1, in a book for public record. Ind. Code § 31-11-4-4(b). It is also
responsible for collecting a $10.00 fee for the issuance of a marriage license, and
remitting that fee to the state treasurer. Ind. Code § 33-32-5-1(a).
Sally Whitis is, and was at all relevant times, the elected Clerk of Harrison
County, Indiana. (Filing No. 45-1, Deposition of Sally Whitis 5:23-25, 10:1-7). As
Clerk, Whitis ran the Circuit Court Clerk’s Office, the Superior Court Clerk’s Office, and
the Election Office. (Id. 14:19-25). In that role, she is and was responsible for
supervising ten employees, including Summers. (Id. 15:7-10).
Summers worked in the Superior Court Clerk’s Office as a deputy clerk. (Id.
21:18-25, 22:19-23). She had various duties in that position, including processing

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A marriage license legally authorizes an individual who can solemnize marriages (e.g., a
member of the clergy, judge, or mayor) to perform a valid marriage ceremony for a particular
couple within sixty days. Ind. Code §§ 31-11-4-10, 31-11-4-14, 31-11-6-1. In contrast, a
marriage certificate is completed after the ceremony takes place; it certifies that the couple was
actually married after first obtaining a license. Ind. Code. § 31-11-4-15.

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marriage licenses. (Id. 22:19-23:10). In order to process a marriage license, Summers
had to pull up the application (which was completed online by the couple prior to coming
to the Clerk’s Office), verify that the application was complete, and then print the license.
(Filing No. 45-2, Deposition of Linda Summers 39:16-40:1). In her deposition, Summers
agreed that, when it came to processing marriage licenses, her duties essentially boiled
down to “input[ing] the information and giv[ing] the forms out.” (Id. 114:11-13). She
did not solemnize marriages, nor did she personally sign the marriage license or
certificate. (Id. 114:5-10).
B. The Clerk’s Office’s Adjustment to Indiana’s Recognition of Same-Sex
Marriages
On September 4, 2014, the Seventh Circuit Court of Appeals held that Indiana’s
refusal to allow same-sex couples to marry violated the Equal Protection Clause of the
Fourteenth Amendment. Baskin v. Bogan, 766 F.3d 648, 672 (7th Cir. 2014). Shortly
thereafter, on October 6, the Supreme Court denied Indiana’s petition for writ of
certiorari, making the Seventh Circuit’s ruling final. Bogan v. Baskin, 135 S. Ct. 316
(2014).
On that same day, the Office of the Indiana Attorney General issued a
memorandum to all elected Clerks, stating, in relevant part:
Today the U.S. Supreme Court announced that it had denied the state’s
request to hear an appeal of the decision made last month by the 7th Circuit
Court of Appeals. That denial of the state’s request means that the 7th Circuit
will issue a “mandate” very soon that will implement the injunction issued
by Chief Judge Young in June. As soon as that mandate is issued—and it
could be as early as today—county clerks will be prohibited from denying
marriage licenses to same sex couples so long as all other marriage license
requirements are met. It would be advisable to start making necessary
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preparations to process marriage license applications and issue licenses
accordingly.
(Filing No. 45-3, Attorney General Memorandum).
On October 22, Whitis sent an e-mail to all Clerk’s Office employees, including
Summers, stating:
While I was on vacation, the Supreme Court has ordered Indiana to proceed
with gay marriages.
Therefore, it is our duty in the Clerk’s Office to process those applications.
The process in Incite 2 has been modified to accommodate these filings.
Even though it may be against your personal beliefs, we are required by state
law to process their applications. We are only doing the paperwork and not
performing their ceremony.
I expect everyone to please comply. Thanks.
(Filing No. 45-4, Whitis E-Mail).
C. Summers’ Refusal to Process a Marriage License for a Same-Sex Couple
On December 8, 2014, a same-sex couple came to the Superior Court Clerk’s
Office and requested a marriage license from Summers. (Summers Dep. 59:24-25).
Summers noticed that one of the individuals was a woman, but “didn’t pay too much
attention” to the other person. (Id. 60:2-17). She went to her computer, opened the Incite
system, and pulled up the couple’s application. (Id. 60:17-18). She then realized that the
individuals requesting the marriage license were of the same sex. (Id. 60:18).
Summers hesitated, unsure what to do. (Id. 64:4-5). After a moment, she decided
that she could not process the application and motioned for Whitis to come and assist.

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Incite is the computer system used to process marriage licenses. (Whitis Dep. 28:1-4).

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(Id. 64:8-10). With regard to the conversation Summers and Whitis then had, Summers
testified as follows:
Summers: I told her this is a same-same-sex marriage license, and I can’t do
it.
Counsel: And what was her response?
Summers: She said, “You are not marrying them; you’re just providing with
them with the license.” And I said, “I don’t feel that way.” And I said, “I
can’t do it.” And she says, you’re required to do it, you have to do it–some
of that order. And I said, “I’m sorry. I can’t do it.” And she—that’s when
she jerked the paper out of my hand–I had the divorce paper in my hand–and
she took it and sat down at her desk and took the couple.
(Id. 65:6-16). Whitis then processed the marriage license herself. (Whitis Dep. 33:1516). Once the couple left the office, Whitis told Summers that such a refusal “could not
happen again, because it was her job to do those.” (Id. 33:19-21).
D. Whitis’ Decision to Terminate Summers
Later that afternoon, Whitis reviewed the Harrison County Personnel Policies
Handbook (the “Handbook”). (Id. 37:17-19). The Handbook–which Summers
acknowledges she received–includes a list of “Group Three Offenses,” and notes that
these offenses are punishable by termination of employment. (Filing No. 45-6,
Handbook at 64-65; Summers Dep. 89:4-11). “Group Three Offenses” include
“[i]nsubordination by refusing to perform assigned work or to comply with written or
verbal instructions of supervisors.” (Handbook at 64).
After reviewing the Handbook, Whitis made the decision to terminate Summers
for insubordination. (Whitis Dep. 37:17-19, 43:15-19). She then consulted with the
County Attorney and the County Auditor on how to proceed with the termination process.
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(Id. 43:20-25; Filing No. 45-7, Affidavit of Harrison County Attorney Christopher L.
Byrd ¶¶ 4, 7; Filing No. 45-8, Affidavit of Sally Whitis ¶ 4). Whitis conferred with these
individuals to ensure she was following the policy of Harrison County in terminating
Summers and that her termination letter was handled properly. (Whitis Dep. 46:23-47:9).
In her deposition, Whitis testified that Summers’ religious beliefs did not play any part in
the decision to terminate her. (Id. 44:1-3).
E. Summers’ Religious Accommodation Request and Termination
On the evening of December 8, Summers drafted a handwritten letter to Whitis
asking for a religious accommodation. (Summers Dep. 69:4-9, 80:9-81:1). She typed it
on a computer in the Clerk’s Office the next morning, on December 9. (Id. 80:14-81:5).
In the letter, Summers stated, “I am respectfully asking that you, my employer,
accommodate my sincerely held religious belief by not requiring me to perform the task
of processing marriage license for same sex couples [sic].” (Filing No. 45-9, Religious
Accommodation Request). She placed the letter on Whitis’ desk. (Summers Dep. 82:1216). At no point in time prior to delivering that letter to Whitis on December 9 did
Summers request a religious accommodation. (Id. 133:7-16).
Whitis read the letter when she arrived at the Clerk’s Office later that morning.
(Whitis Dep. 32:9-19; Summers Dep. 84:5-13). She subsequently gave Summers a letter
notifying her that her employment with the Clerk’s Office was terminated “due to
insubordination, as is defined in the Handbook on page 64.” (Summers Dep. 86:18-22;
Filing No. 45-10, Termination Letter). Summers was insubordinate because “she refused

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to do a task that she was asked to do,” namely, process a marriage license. (Whitis Dep.
37:20-38:2).
F. Summers’ Religion
Summers identifies as a Christian. (Summers Dep. 126:24-25). She maintains
that she could not process marriage licenses for same-sex couples because it was “against
God’s law” to do so, and God’s law is “above legal law.” (Id. 132:4-7, 145:24). Based
upon her interpretation of select chapters in the Christian Bible (specifically Leviticus 18,
Romans 1, Genesis 1 and 2, and 1 Corinthians 2), Summers believes that “it’s not God’s
law to have them marry.” (Id. 127:19-20, 132:2-3). She asserts that after reading the
Bible, listening to her pastor’s sermons, and praying, she “felt led” to refuse to process
marriage licenses for same-sex couples. (Id. 128:4-11).
In her deposition, Whitis testified that (a) she did not treat Summers any
differently because of her religious beliefs, (Whitis Dep. 44:4-6), and (b) she did not
apply any policies differently to Summers because of her religious beliefs. (Id. 44:7-9).
II. Legal Standard
Summary judgment is appropriate when “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). When considering Summers’ motion, the court considers the facts in the light
most favorable to Defendants; when considering Defendants’ motion, the facts are
considered in the light most favorable to Summers. First State Bank v. Ohio Cas. Ins.
Co., 555 F.3d 564, 567 (7th Cir. 2009).

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III. Discussion
Title VII makes it unlawful for an employer “to discharge any individual . . .
because of such individual’s . . . religion.” 42 U.S.C. § 2000e-2(a)(1). This protection
was designed to ensure that employees would not be forced into a “spot where they must
choose between their religious convictions and their job.” EEOC v. Abercrombie & Fitch
Stores, Inc., 731 F.3d 1106, 1120 (10th Cir. 2013), rev’d, 135 S. Ct. 2028 (2015).
Until recently, a plaintiff attempting to establish a prima facie case of religious
discrimination based on an employer’s failure to provide reasonable accommodation had
to show: (1) “the observance or practice conflicting with an employment requirement is
religious in nature”; (2) “she called the religious observance or practice to her employer’s
attention”; and (3) “the religious observance or practice was the basis for her discharge or
other discriminatory treatment.” EEOC v. Ilona of Hung., 108 F.3d 1569, 1575 (7th Cir.
1997). Once the plaintiff had established a prima facie case of discrimination, the burden
shifted to the employer to (1) rebut one or more elements of the claim, (2) show that it
offered a reasonable accommodation, or (3) show that an accommodation of the
employee’s religious needs would result in undue hardship. Id. at 1575-76.
Both parties offer this framework in their briefing, but the Supreme Court revised
the elements for this claim in EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028
(2015). In that case, the Court rejected Abercrombie & Fitch’s argument “that an
applicant cannot show disparate treatment without first showing that an employer has
‘actual knowledge’ of the applicant’s need for an accommodation.” Id. at 2032. Instead,
the Court held that “[a] request for accommodation, or the employer’s certainty that the
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[religious] practice exists . . . is not a necessary condition of liability.” Id. at 2033.
Therefore, an employee “need only show that his need for an accommodation was a
motivating factor in the employer’s decision.” Id. at 2032.
The Supreme Court’s decision effectively reduces the prima facie case to two
elements. A plaintiff must now show: (1) her religious belief or practice conflicted with
an employment requirement, and (2) her need for an accommodation of that religious
belief or practice was a motivating factor in the employer’s adverse employment
decision. Schwingel v. Elite Prot. & Sec., Ltd., No. 11 C 8712, 2015 U.S. Dist. LEXIS
161858, at *16 (N.D. Ill. Dec. 2, 2015); EEOC v. JetStream Ground Servs., 134 F. Supp.
3d 1298, 1318 (D. Colo. 2015).
Summers maintains that summary judgment in her favor is warranted because the
undisputed evidence shows that she has established a prima facie case and Defendants
are unable to prove that accommodating her religious beliefs would have resulted in
undue hardship. Defendants contend just the opposite. They dispute the existence of
both elements and also maintain that offering an accommodation would have created an
undue hardship. The court finds that Summers cannot satisfy the first element of her
claim, and therefore does not address the balance of the parties’ arguments.
A. First Element of the Prima Facie Case
An employer is only required to accommodate an employee “when a neutral rule
of general applicability conflicts with the religious practices of a particular employee.”
TWA v. Hardison, 432 U.S. 63, 87 (1977) (Marshall, J., dissenting). See Ansonia Bd. of
Educ. v. Philbrook, 479 U.S. 60, 76 (1986) (Stevens, J., concurring in part and dissenting
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in part) (“First, the court must ask whether the employee’s job obligations are in conflict
with his religious obligations.”). If the employee fails to show a bona fide conflict, “it
makes no sense to speak of a duty to accommodate.” Id.
Assessing whether a genuine conflict exists requires an objective analysis. In
other words, the fact that an employee subjectively perceives a conflict between her
religious beliefs and her job duties is not, in and of itself, conclusive. See Bush v. Regis
Corp., 257 F. App’x 219, 221 (11th Cir. 2007) (“Bush argues that the Sunday shift
prevented her from doing field service with her family, which constituted a bona fide
religious belief. The record, however, indicates that field service was not required to be
performed on Sundays; rather, that was the day Bush and her family wished to perform
field service.”); Tiano v. Dillard Dep’t Stores, 139 F.3d 679, 683 (9th Cir. 1998) (holding
that the employee’s religious belief–that she “had a calling from God” to take a
pilgrimage to Medjugorje, Yugoslavia in October–was not in conflict with Dillard’s “noleave policy” for October through December because “the timing of the trip was a
personal preference and not part of her calling”).
If this element was purely subjective, there would simply be no reason to have it
as part of the prima facie case. Thus, the court must be able to conduct a limited,
objective inquiry into the purported conflict.
B. Whether Summers’ Religious Beliefs Conflict with an Employment
Requirement
Here, the court finds no objective conflict between Summers’ duties as a deputy
clerk and her religious opposition to same-sex marriage. When it came to marriage

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licenses, Summers’ job merely required her to process the licenses by entering data and
handing out information. Specifically, she had to pull up the application, verify that
certain information was correct, collect a statutory fee, print a form, and record the
license in a book for public record. At bottom, she was simply tasked with certifying–on
behalf of the state of Indiana, not on her own behalf– that the couple was qualified to
marry under Indiana law. The duties were purely administrative.
To be clear, Summers did not perform marriage ceremonies or personally sign
marriage licenses or certificates. She was not required to attend ceremonies, say
congratulations, offer a blessing, or pray with couples. Her employer did not make her
express religious approval or condone any particular marriage. Summers remained free
to practice her Christian faith and attend church services. She was even free to maintain
her belief that marriage is a union between one man and one woman. Thus, she was not
forced to “choose between [her] religious convictions and [her] job.” Abercrombie &
Fitch Stores, 731 F.3d at 1120.
The court’s conclusion is supported by Miller v. Davis, 123 F. Supp. 3d 924 (E.D.
Ky. 2015), vacated by Nos. 15-5880, 15-5978, 2016 U.S. App. LEXIS 13048 (6th Cir.
July 13, 2016) (dismissing appeal as moot due to new law that resolved the dispute). In
Miller, the U.S. District Court for the Eastern District of Kentucky preliminarily enjoined
Rowan County Clerk Kim Davis from enforcing her policy of not issuing marriage
licenses to any couple. Id. at 944. As part of her opposition to the motion for injunctive
relief, Davis asserted that requiring her to issue marriage licenses to same-sex couples in
spite of her sincerely-held religious beliefs (a) violated her First Amendment right to free
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speech and (b) constituted a religious test in violation of Article VI, § 3 of the U.S.
Constitution. The district court disagreed with both arguments, concluding,
[I]ssuing a marriage license to a same-sex couple merely signifies that the
couple has met the legal requirements to marry. It is not a sign of moral or
religious approval. The State is not requiring Davis to express a particular
religious belief as a condition of public employment, nor is it forcing her to
surrender her free exercise rights in order to perform her duties.
Id. at 943. See id. at 941 (“The form does not require the county clerk to condone or
endorse same-sex marriage on religious or moral grounds. It simply asks the county
clerk to certify that the information provided is accurate and that the couple is qualified to
marry under Kentucky law.”).
While the opinion in Miller was vacated by the Sixth Circuit and the district court
was addressing constitutional claims (i.e., not a Title VII claim), the court finds the
reasoning persuasive because the material facts in that case are identical to those of this
case. Specifically, the court agrees that processing a marriage license “is not a sign of
moral or religious approval.” Id. at 943. Moreover, by simply issuing a license, a deputy
clerk like Summers does not “condone or endorse same-sex marriage.” Id. at 941.
The court’s decision herein also finds support in Garman v. United States Postal
Serv., 509 F. Supp. 507 (N.D. Ind. 1981). In Garman, a United States Postal Service
employee filed suit against his employer after he was ordered to complete certain duties
that allegedly ran afoul of his religious beliefs. Id. at 508. The Postal Service had
ordered all window clerks to begin “perform[ing] various ministerial tasks connected
with the Selective Service registration.” Id. Specifically, employees were required to
distribute registration forms, review completed forms, and forward completed forms to a
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processing center. Id. The plaintiff opposed military service because of his religious
beliefs, and was recognized as a conscientious objector by the Selective Service more
than ten years prior to the suit. Id. at 510. Because of those religious convictions, he
maintained that forcing him to process Selective Service registration forms for others
violated his First Amendment rights.
In denying the plaintiff’s motion for a preliminary injunction, the Garman court
concluded that this requirement on window clerks was “neutral in its purpose of
providing assistance of a technical nature for Selective Service registration and [wa]s not
designed to control, nor d[id] it have the effect of controlling, political or religious belief
or expression.” Id. After finding that “the act of registration with the Selective Service is
not an interference with the free exercise of one’s religion,” the court concluded that the
plaintiff would not prevail on the merits of his claim that requiring him to process
registration forms violated the First Amendment. Id. at 511.
While Garman presents different legal claims, the facts of that case are very
similar to those of the instant case because both the Garman plaintiff and Summers
alleged that requiring them to process certain forms violated their religious beliefs. The
same rationale applies to both cases. Whitis’ order to process the marriage license was
“neutral” in that the ministerial duties associated with processing a license only
“provid[e] assistance of a technical nature” to couples. Id. Thus, requiring Summers to

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process marriage licenses for same-sex couples did not interfere with her religious
freedom. 3
To be clear, the court does not question the sincerity of Summers’ beliefs. She
maintains that “it’s not God’s law to have [same-sex couples] marry,” (Summers Dep.
132:2-3), and has pointed to select verses from the Bible in support. That is fine; she has
every right to believe that. However, that belief, no matter how sincerely espoused, does
not objectively conflict with the purely administrative duty to process marriage licenses.
Summers’ desire to avoid handling forms related to activities of which she personally
disapproves is not protected by federal law. Title VII is not a license for employees to
perform only those duties that meet their private approval.
Therefore, the court holds Summers has failed to establish that her religious
practices were in conflict with her duties as a deputy clerk. This is fatal to her claim
under Title VII. Summary judgment for Defendants is required.
C. Finding in the Alternative
For purposes of appeal, the court offers a finding in the alternative. Assuming,
arguendo, that Summers has established a religious conflict, that conflict was with
federal law, not an employment requirement. While Whitis may have instructed
Summers to process same-sex marriage licenses, that directive was merely an effort to
comply with the Seventh Circuit’s mandate, which expressly forbid the state of Indiana
from enforcing its same-sex marriage ban. In other words, the requirement that Summers

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The court also notes that while Defendants relied upon both Miller and Garman in their
briefing, Summers made no attempt to distinguish either case.

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process same-sex marriage licenses was one imposed by a federal court and merely
implemented by Defendants. Therefore, Summers’ dispute was not with her employer,
but with the Seventh Circuit. See Seaworth v. Pearson, 203 F.3d 1056, 1057 (8th Cir.)
(per curiam), cert. denied, 531 U.S. 895 (2000) (where applicant refused to provide his
Social Security Number to employer because it violated his religion, employer did not
unlawfully discriminate in failing to hire because “the IRS, not defendants, imposed the
requirement that Seaworth provide an SSN. Thus, Seaworth’s beliefs do not conflict with
an employment requirement”). See also Bey v. Oakton Cmty. Coll., No. 14 C 06655,
2015 U.S. Dist. LEXIS 131877, at *22 (N.D. Ill. Sep. 30, 2015) (“Courts have regularly
held that failing to hire . . . a candidate who refuses to provide his SSN on religious
grounds is not discriminatory because the requirement of providing a SSN is the
government’s, not the employer’s . . . .”) (collecting cases).
IV. Conclusion
In the end, Summers should have put her personal feelings aside and heeded the
command of her employer. She was certainly free to disagree with the Seventh Circuit’s
decision, but that did not excuse her from complying with it. When Summers refused to
process a marriage application for a same-sex couple, Defendants were within their rights
to terminate her employment as a deputy clerk for insubordination.

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Therefore, Defendants’ Motion for Summary Judgment (Filing No. 43) is
GRANTED and Summers’ Motion for Summary Judgment (Filing No. 38) is DENIED.

SO ORDERED this 15th day of December 2016.

Distributed Electronically to Registered Counsel of Record.

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