Goodman v. Archbishop Curley High School, Inc. et al
Filing
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MEMORANDUM ORDER denying 32 Motion to Certify Interlocutory Appeal;denying 33 Motion to Stay Discovery Pending Interlocutory Appeal. Signed by Judge Richard D. Bennett on 7/18/2016. (ca2s, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ANNETTE GOODMAN,
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Plaintiff,
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v.
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ARCHBISHOP CURLEY HIGH
SCHOOL, INC. and
ROMAN CATHOLIC ARCHBISHOP
OF BALTIMORE,
Defendants.
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*
*
*
*
*
*
Civil Action No. RDB-15-0627
*
*
*
*
*
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*
*
*
MEMORANDUM ORDER
Plaintiff Annette Goodman (“Plaintiff” or “Goodman”) commenced this action
against Defendants Archbishop Curley High School, Inc. (“Curley”) and the Roman
Catholic Archbishop of Baltimore (“Archdiocese”) (collectively “Defendants”), alleging
retaliation in violation of Title IX of the Education Amendments of 1972, 20 U.S.C.
§§ 1681 et seq. (“Title IX”) and 34 C.F.R. § 100.7. See Compl., p. 10, ECF No. 1.
Subsequently, Defendants filed a Motion to Dismiss or, in the alternative, for
Summary Judgment (ECF No. 23), arguing, inter alia, that Plaintiff’s suit was barred
by Title IX’s religious organizations exemption, 20 U.S.C. § 1681(a)(3). See Mem.
Supp. Mot. to Dismiss, p. 12, ECF No. 23-1. Following a February 5, 2016 hearing,
this Court denied Defendants’ Motion to Dismiss via Memorandum Opinion (ECF
1
No. 27) and Order (ECF No. 28) dated February 26, 2016. See Goodman v. Archbishop
Curley High School, Inc., et al., ---F. Supp. 3d---, No. RDB-15-0627, 2016 WL 759187, at
*9 (D. Md. Feb. 26, 2016).
Currently pending before this Court is Defendants’ Motion to Certify
Interlocutory Appeal (ECF No. 32), in which Defendants request that this Court
certify its February 26, 2016 Order (ECF No. 28) for immediate interlocutory appeal
to the United States Court of Appeals for the Fourth Circuit.
The parties’
submissions have been reviewed, and no hearing is necessary. See Local Rule 105.6 (D.
Md. 2016). For the reasons stated herein, Defendants’ Motion to Certify Interlocutory
Appeal (ECF No. 32) is DENIED. 1
BACKGROUND 2
In August of 2013, Plaintiff Annette Goodman (“Plaintiff” or “Goodman”)
began working as a school librarian at Defendant Archbishop Curley High School
(“Curley”), an all-boys catholic high school administered by Defendant Roman
Catholic Archbishop of Baltimore (“Archdiocese”) (collectively “Defendants”). Compl.
at ¶ 7, ECF No. 1. In April of 2014, Goodman indicated to school administrators her
suspicion that a fellow Curley teacher, Lynette Trotta (“Trotta”), was involved in a
sexual relationship with a Curley student (the “Student”).
1
Id. at ¶¶ 10-19.
She
Because this Court will not certify its February 26, 2016 Order for interlocutory appeal to the United
States Court of Appeals for the Fourth Circuit, Defendants’ pending Motion to Stay Proceedings
Pending Interlocutory Appeal (ECF No. 33) is also DENIED.
2
The facts of this case were set forth fully in this Court’s Memorandum Opinion of February 26,
2016. See Goodman, 2016 WL 759187 at *1-3.
2
contends that the Curley administration did not seem surprised by her allegations, but
rather responded to her report with anger and indifference, concerned primarily with
the negative attention this incident might attract to the school.
Id. at ¶ 19-30.
Goodman was terminated from her position shortly thereafter on the basis that she
had not immediately notified her superiors of her suspicions.
Plaintiff filed a complaint in this Court (ECF No. 1) claiming retaliation in
violation of Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq.
(“Title IX”) and 34 C.F.R. § 100.7. Id. at p. 10. Specifically, Goodman alleges that
Trotta’s sexual abuse of the Student and Curley’s inadequate response violated Title
IX, that Defendants had knowledge of Trotta’s inappropriate behavior but, until her
report, showed deliberate indifference, and that this deliberate indifference exposed
Defendants to civil liability under Title IX.
Id. at ¶¶ 41, 42-44, 45.
Therefore,
Goodman claims, Defendants retaliated against her after she reported Trotta’s behavior
by suspending her without pay, terminating her employment, informing her that they
would share their reasons for termination with potential employers, publicly blaming
her, and ruining her reputation. Id. at ¶ 46.
Defendants have indicated that they fired Goodman not because she exposed
suspected child abuse, but because she admittedly waited weeks 3 before doing so.
3
Goodman alleges that the Student’s best friend told her on March 6, 2014 that the Student had sex
with Ms. Trotta, that she discussed the allegation with Student, who confirmed on March 12, 2014 that
he was in a relationship with a teacher that was “currently making [him] feel uncomfortable,” and that
3
Mem. Supp. Defs.’ Mot. to Dismiss, p. 1-2, ECF No. 23-1. Defendants proffer that
Canon Law, in accordance with their own policies, “requires immediate reporting of
child sex abuse.” Id.
Accordingly, Defendants filed a Motion to Dismiss or, in the
alternative, for Summary Judgment (ECF No. 23), seeking dismissal of Plaintiff’s Title
IX retaliation claim on the grounds that it was barred by, inter alia 4, Title IX’s
religious organizations exemption.
Title IX’s religious organizations exemption provides that “this section shall not
apply to an educational institution which is controlled by a religious organization if
the application of this subsection would not be consistent with the religious tenets of
such organization.” 20 U.S.C. § 1681(a)(3).
However, the Supreme Court of the
United States in Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005) has
characterized the exceptions to Title IX’s broad prohibition on discrimination as
“narrow.” Jackson, 544 U.S. at 173–175 (“Title IX, . . . subject to a list of narrow
exceptions not at issue here, broadly prohibits a funding recipient from subjecting any
person to ‘discrimination’ ‘on the basis of sex’ ” . . . “Title IX is a broadly written
general prohibition on discrimination, followed by specific, narrow exceptions to that
the Student implicated Trotta specifically on March 18, 2014, but that she did not inform Curley
administrators of the suspected abuse until April 1, 2014. See Goodman, 2016 WL 759187, at *4, n. 3.
4
In its February 26, 2016 Memorandum Opinion denying Defendants’ Motion to Dismiss (ECF No.
23), this Court rejected Defendants’ arguments under Title IX’s religious organizations exemption, the
First Amendment to the United States Constitution, and the Religious Freedom Restoration Act. See
Goodman, 2016 WL 759187 at *5-9. However, in the pending Motion to Certify Interlocutory Appeal
(ECF No. 32), discussed infra, Defendants argue only that this Court’s interpretation of the Title IX
religious organizations exemption satisfies the criteria for interlocutory appeal. See Mot. to Certify, p.
4, ECF No. 32.
4
broad prohibition”) (emphasis added).
Additionally, the United States Court of
Appeals for the Sixth Circuit in Doe v. Salvation Army in U.S., 685 F.3d 564 (6th Cir.
2012) specifically identified Title IX’s religious organizations exemption as narrow. See
Doe, 685 F.3d at 572 (referencing “narrow but express exceptions relating explicitly to
religious organizations in the amendments to Title IX . . . .”) (emphasis added).
In their Motion to Dismiss (ECF No. 23), Defendants took the position “that
Title IX’s religious organizations exemption bars any employment discrimination or
retaliation claim [from proceeding] against them if they define their actions as tenets of
their religion.” Goodman, 2016 WL 759187 at *5. It is undisputed that Goodman was
employed in a non-ministerial capacity as the school librarian. Defendants argued that
the Title IX exemption barred Plaintiff from taking discovery on her claims or from
challenging their religiously-based justification for her termination as pre-textual,
pursuant to the McDonnell Douglas
burden-shifting analysis 5. Id. This Court rejected Defendants’ position, citing the
well-recognized importance of retaliation claims to Title IX’s enforcement.
See
Jackson, 544 U.S. at 180. This Court observed that “no court [since Jackson] has . . .
5
Where, as in this case, the record contains no direct evidence of retaliation, a plaintiff’s retaliation
claims must be analyzed under the burden-shifting scheme established in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Under this framework, once a prima facie case of retaliation is established,
the burden of production shifts to the defendant to offer a legitimate, non-retaliatory reason for its
adverse employment action. See O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 311 (1996). If
the employer fulfills this reciprocal duty, the burden reverts back to the plaintiff to establish that the
defendant’s proffered reason is pretextual and that her termination was in fact retaliatory. See St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507–08 (1993).
5
held that Title IX’s religious organizations exemption precludes a Plaintiff from raising
a Title IX retaliation claim simply because the employer has proposed a religious
reason for her termination.” Goodman, 2016 WL 759187 at *7.
On the contrary, courts have long-recognized that simply allowing an
employment discrimination or retaliation claim to survive a motion to dismiss and to
proceed under the McDonnell Douglas scheme does not threaten a Defendant’s religious
interests or freedoms. See DeMarco v. Holy Cross High School, 4 F.3d 166, 170-71 (2d
Cir. 1993) (“[I]n those cases where a defendant proffers a religious purpose for its
allegedly discriminatory employment action, a plaintiff will usually be able to
challenge as pretextual the employer’s justification . . . .”); Redhead v. Conference of
Seventh-day Adventists, 566 F. Supp. 2d 125, 134 (E.D.N.Y. 2008) (“an employer’s
simple assertion of a religious motive usually will not prevent a reviewing court from
asking whether that motive ‘was in fact pretext’ within the meaning of McDonnell
Douglas.” (quoting DeMarco, 4 F.3d at 171)).
Therefore, in a February 26, 2016
Memorandum Opinion and Order, this Court held that Title IX’s religious
organizations exemption did not
bar Plaintiff’s retaliation claim from proceeding under the McDonnell Douglas
framework. Defendants now seek interlocutory appeal of this Court’s Order.
STANDARD OF REVIEW
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Section 1292(b) of Title 28 of the United States Code permits a United States
District Court to certify an order for interlocutory appeal where that order (1)
“involves a controlling question of law” (2) “as to which there is substantial ground for
difference
of
opinion”
(3)
“and from which immediate appeal may advance the ultimate termination of the
litigation.” Smith v. Murphy, 634 F. App’x 914, 915 (4th Cir. 2015) (internal quotations
omitted). “The decision to certify an interlocutory appeal is firmly in the district
court’s discretion.” Butler v. DirectSAT USA, LLC, 307 F.R.D. 445, 452 (D. Md. 2015).
“Unless all of the statutory criteria are satisfied, however, ‘the district court may
not and should not certify its order . . . for an immediate appeal under [S]ection
1292(b).’ ” Id. (quoting Ahrenholz v. Bd. of Trs. of the Univ. of Ill., 219 F.3d 674, 676
(7th Cir. 2000)). Courts “should grant this ‘extraordinary remedy’ only in ‘exceptional
circumstances’ where early appellate review would avoid a ‘protracted and expensive
litigation’ process.” Randolph v. ADT Sec. Servs., Inc., No. DKC 09- 1790, 2012 WL
273722, at *5 (D. Md. Jan. 30, 2012) (quoting Fannin v. CSX Transp., Inc., 873 F.2d
1438, at *2 (4th Cir. 1989) (unpublished opinion)). Section 1292(b) “should be used
sparingly and . . . its requirements must be strictly construed.” Myles v. Laffitte, 881
F.2d 125, 127 (4th Cir. 1989).
ANALYSIS
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Defendants argue that this Court’s February 26, 2016 Order “regarding Title
IX’s religious exemption meets all three criteria for certification.” Mot. to Certify, p.
4, ECF No. 32. However, while this Court’s interpretation of Title IX’s religious
organizations exemption may satisfy the first and third criteria for interlocutory
appeal, Defendants have failed to demonstrate a “substantial ground for difference of
opinion” on the issue.
I.
The Interpretation of Title IX’s Religious Organizations Exemption is a
Controlling Question of Law
An “issue is plainly a ‘question of law’ within the meaning of 28 U.S.C. §
1292(b), insofar as it is ‘a question of the meaning of a statutory or constitutional
provision, regulation, or common law doctrine’—as opposed to ‘whether [a] party
opposing summary judgment has raised a genuine issue of material fact.’ ” Price v.
Atlantic Ro-Ro Carriers, Inc., 2014 WL 7358729, at *1 (D. Md. Dec. 22, 2014) (quoting
Lynn v. Monarch Recovery Mgmt., Inc., 953 F. Supp. 2d 612, 623 (D. Md. 2013)). In
Kennedy v. Villa St. Catherine, Inc., No. PWG-09-3021 (WDQ), 2010 WL 9009364, at
*1 (D. Md. June 16, 2010), this Court held that an “Order address[ing] whether [Title
VII’s religious exemption], 42 U.S.C. § 2000e–1(a), exempts a religious institution from
liability when the [purported] discrimination . . . takes the form of religious
harassment” involved a controlling question of law.
Like the Order in Kennedy, this Court’s Order of February 26, 2016
“address[ed]” the scope of the Title IX religious organizations exemption.
8
In its
Motion to Dismiss, Defendants argued for an interpretation of the exemption as
“bar[ring] any employment discrimination or retaliation claim against them if they
define their actions as tenets of their religion.” Goodman, 2016 WL 759187 at *5.
However, this Court observed that the “[t]here is a noticeable lack of case authority
supporting such a broad application of the religious exemption” and that “[f]ew courts
have addressed the breadth of Title IX’s religious exemption and none . . . in the context
of employment discrimination or retaliation claims.”
Id. (emphasis added).
This
Court further observed that prior cases have interpreted Title IX’s religious exemption
as “narrow” and that the available case law “suggest[s] that Title IX’s ‘narrow’ religious
organizations exemption should not be read as supporting dismissal of Plaintiff’s claims
. . . .” Id. (emphasis added).
Despite this language clearly interpreting “the meaning of a statutory or
constitutional provision,” see Price, 2014 WL 7358729 at *1, Plaintiff contends that this
Court’s Order did not address a purely legal question like that in Kennedy. Pl.’s
Opp’n., p. 6, ECF No. 39. On the contrary, Plaintiff argues, this Court concluded
that “the case presented the opportunity for a factual inquiry into Defendants’ nonretaliatory justification for firing Ms. Goodman . . . which will require the Court to
apply Title VII’s McDonnell Douglas framework.” Id. (emphasis added). However,
Defendants correctly note that the denial of any motion to dismiss in a civil case, even
when based on a purely legal question of statutory interpretation as in Kennedy,
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necessarily opens the door to discovery and trial on the factual disputes. See Def.’s
Reply, p. 4, ECF No. 41. This does not change the fact that a controlling issue in this
Court’s February 26, 2016 Memorandum Opinion and Order was whether Title IX’s
religious organizations exemption should be “read” as barring Plaintiff’s suit from
proceeding under the McDonnell Douglas framework.
Accordingly, this Court’s
February 26, 2016 Order did involve a controlling question of law.
II.
Appeal May Advance the Ultimate Termination of this Litigation
“ ‘In determining whether certification will materially advance the ultimate
termination of the litigation, a district court should consider whether an immediate
appeal would: (1) eliminate the need for trial, (2) eliminate complex issues so as to
simplify the trial, or (3) eliminate issues to make discovery easier and less costly.’ ”
Coal. For Equity & Excellence In Maryland Higher Educ. v. Maryland Higher Educ.
Comm’n, No. CCB-06-2773, 2015 WL 4040425, at *6 (D. Md. June 29, 2015) (quoting
Lynn v. Monarch Recovery Mgmt., Inc., 953 F. Supp. 2d 612, 626 (D. Md. 2013)). “[T]o
meet this requirement, the appellate court’s resolution of the controlling question of
law should ‘serve to avoid a trial or otherwise substantially shorten the litigation.’
Kennedy, 2010 WL 9009364 at *4. In the Kennedy case, this Court held that appeal
“may advance” the ultimate termination of that litigation. Id. This Court reasoned
that if the United States Court of Appeals for the Fourth Circuit “conclude[d] that 42
U.S.C. § 2000e–1(a) exempts a religious institution from liability when the [purported]
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discrimination . . . takes the form of religious harassment, then summary judgment
should have been granted on all counts, and litigation [would] end, without need for a
trial and the associated costs and time commitments.” Id. “It is immaterial that other
possible outcomes exist; it is enough that appeal may lead to a possible terminus for
the case.” Id. (citing Orson, Inc. v. Miramax Film Corp., 867 F. Supp. 319, 322 (E.D. Pa.
1994)).
Here, Defendants seek immediate appeal of this Court’s February 26, 2016
Order denying their Motion to Dismiss (ECF No. 23). Like in the Kennedy case, if the
Fourth Circuit were to reverse this Court’s Order and find that Title IX’s religious
exemption does bar Plaintiff’s suit from proceeding to discovery, then Plaintiff’s action
would be dismissed “and litigation [would] end, without need for a trial and the
associated costs and time commitments.”
See Kennedy, 2010 WL 9009364 at *4.
However, as discussed infra, Defendants argue for a novel interpretation of the Title
IX religious organizations exemption. They have cited no case, nor is this Court
aware of any, holding that the exemption has the effect of barring any employment
discrimination or retaliation claim, by even a non-ministerial employee, from
proceeding against a religious employer who has offered a religious justification for its
actions. On the contrary, multiple courts have recognized that simply allowing an
employment discrimination or retaliation claim to survive a motion to dismiss and to
proceed under the McDonnell Douglas scheme does not threaten a Defendant’s religious
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interests or freedoms. See, e.g., DeMarco, 4 F.3d 166 at 170-71. Therefore, it is very
likely in this case that interlocutory appeal would only delay the litigation process as
opposed to “shorten[ing] the litigation.” Kennedy, 2010 WL 9009364 at *4.
III.
Defendants Have Failed to Demonstrate a Substantial Ground for
Difference of Opinion as to this Court’s Interpretation of the Title IX
Religious Organizations Exemption
The “legislative history of 28 U.S.C. § 1292(b) indicates that the statutory
prerequisite of ‘substantial ground for difference of opinion’ is satisfied only when
there is ‘substantial doubt’ that the district court’s order was correct.” See Kennedy,
2010 WL 9009364 at *2. (internal quotations omitted). This Court has previously
noted that “the mere presence of a disputed issue that is a question of first impression,
standing alone, is insufficient to demonstrate a substantial ground for difference of
opinion.” Lynn, 953 F. Supp. 2d at 624. However, “when a matter of first impression
also had other grounds for difference of opinion . . . , district courts in this circuit have
certified the issue for interlocutory appeal.” Kennedy, 2010 WL 9009364 at *2. “An
issue presents a substantial ground for difference of opinion if courts, as opposed to
parties, disagree on a controlling legal issue.” Randolph v. ADT Sec. Servs., Inc., No.
DKC 09-1790, 2012 WL 273722, at *6 (D. Md. Jan. 30, 2012). “In other words, for
interlocutory appeals, ‘it matters not whether the lower court simply got the law
wrong,’ but ‘whether courts themselves disagree as to what the law is.’ ” In re Nichols,
No. TDC-14-0625, 2014 WL 4094340, at *3 (D. Md. Aug. 15, 2014).
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Defendants contend that a “substantial ground for difference of opinion” exists
as to this Court’s interpretation of Title IX’s religious organizations exemption in its
February 26, 2016 Memorandum Opinion and Order. They rely heavily on Kennedy
v. Villa St. Catherine’s, Inc., discussed supra, in which this Court held that a “substantial
ground for difference of opinion” existed as to “whether [Title VII’s religious
exemption], 42 U.S.C. § 2000e–1(a), exempts a religious institution from liability when
the religious discrimination it purportedly commits takes the form of religious
harassment.” See Kennedy, 2010 WL 9009364 at *1-3. However, the Kennedy case is
distinguishable from this case in several ways. While the religious exemption issue in
Kennedy came before this Court on a Motion for Summary Judgment, this Court
interpreted Title IX’s religious organizations exemption in this case in the context of a
Motion to Dismiss, which it explicitly declined to convert to a Motion for Summary
Judgment given that Plaintiff had not yet had an opportunity to take discovery. See
Goodman, 2016 WL 759187 at *9, n. 6. Defendants in this case contend that the Title
IX religious organizations exemption bars Plaintiff’s claim from even reaching
discovery on the question of pretext. The fact that Defendants argue this religious
exemption is a complete bar to Plaintiff’s action on a Motion to Dismiss is precisely
what makes it so novel.
Additionally, this Court in Kennedy found that a “substantial ground for
difference of opinion” existed specifically because the issue before the Court “[was] a
13
matter of fundamental rights.” Kennedy, 2010 WL 9009364 at *3. The Plaintiff in
Kennedy claimed that she was fired by her catholic employer for wearing clothes that
were a “ ‘function of her religion’ as a member of the Church of the Brethren.” See
Kennedy v. Villa St. Catherine’s, Inc., 709 F. Supp. 2d 404, 406 (D. Md. 2010), rev’d in
part sub nom. Kennedy v. St. Joseph's Ministries, Inc., 657 F.3d 189 (4th Cir. 2011).
“Plaintiff alleged that the Director told her that her clothes were ‘inappropriate in a
Catholic institution . . . made the residents’ family members uncomfortable, . . . and
that Plaintiff should conform to a more traditional mode of dress.’ ” Id. In contrast,
Goodman has not alleged that she experienced religious harassment, but rather brings a
single retaliation claim, alleging that she was retaliated against after engaging in a
reporting activity protected under Title IX.
This Court in Kennedy explicitly
distinguished the facts of that case from cases “unquestionably [involving] employment
decision[s],” in which “the plaintiff did not claim harassment.” Kennedy, 2010 WL
9009364 at *3. This Court observed that the outcome in Kennedy “hinge[d] on the fact
that Ms. Kennedy’s claims [were] for harassment and retaliatory discharge stemming
from harassment.” Id.
Furthermore, the Plaintiff in Kennedy agreed that the scope of Title VII’s
religious exemption was a “ ‘murky area,’ ” but that the “possible differences of
opinion were not ‘so substantial as to meet the second prong [for certification].’ ” Id.
at *2. Defendant had cited case law to support its request, but Plaintiff contended it
14
“[did] not aid it in creating a substantial ground for difference of opinion.” Id. Unlike
in Kennedy, Plaintiff has not admitted that the issue before this Court was “murky,”
nor did Defendants cite any case law directly supporting a reading of the Title IX
religious organizations exemption as broad as the one they proposed.
Here,
Defendants acknowledge that “there is no applicable precedent interpreting Title IX’s
religious organizations exemption,” and, as Defendants admit in their brief, “a lack of
precedent does not necessarily establish a substantial ground for difference of opinion .
. . .” Mot. to Certify, p. 8, ECF No. 32.
Alternatively, Defendants contend that this Court has misinterpreted the phrase
“application of this subsection” in Title IX’s religious organizations exemption as
referring to “the litigation process” as opposed to “the underlying substantive
employment decision.” Id. at 8. According to Defendants, in denying their Motion to
Dismiss this Court operated under the assumption that “Defendants are exempt only if
subjecting them to the McDonnell Douglas analysis would be inconsistent with their
religious tenets,” whereas this Court should have concluded that “Defendants are
exempt if retaining/reinstating Plaintiff would be inconsistent with their religious
beliefs.” Id. Nowhere in the February 26, 2016 Memorandum Opinion did this Court
make this distinction that Defendants now read into the decision.
Additionally,
Defendants cite no case discussing this distinction nor any case supporting their
interpretation of “application of this subsection” as opposed to the interpretation this
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Court supposedly adopted. Accordingly, they have failed to demonstrate that “courts
themselves disagree as to what the law is,” as required to satisfy this criterion for
interlocutory appeal.6 See In re Nichols, 2014 WL 4094340 at *3.
Defendants further contend that “a substantial ground for a difference of
opinion exists as to how Plaintiff can question and in what ways a jury can determine
whether a particular activity is inconsistent with Defendants’ religious tenets.” Mot.
to Certify, p. 10, ECF No. 32. However, this Court did not hold in its February 26,
2016 Memorandum Opinion that Title IX’s religious organizations exemption permits
“a jury [to] determine whether a particular activity is inconsistent with Defendants’
religious tenets.” As discussed supra, this Court simply held that the Title IX religious
organizations exemption did not bar Plaintiff from seeking discovery and challenging
Defendants’ religious justification for her termination as pretextual by, for example,
uncovering evidence that Defendants’ religious tenets have not been uniformly
applied 7. See Goodman, 2016 WL 759187 at *4. Defendants cite no case authority
6
Defendants further argue that this Court’s “interpretation effectively reads the religious exemption
out of the statute by having a religious defendant go through the same analysis as a non-religious
defendant in any Title IX or routine employment discrimination claim.” Again, however, they fail to
cite any authority in support of their contention. They have alleged only a purported disagreement
between themselves and this Court, as opposed to a disagreement between the courts constituting
“substantial grounds for difference of opinion.”
7
Defendants additionally contend that “[t]he plain language of Congress’s religious exemption to Title
IX applies when Title IX would be inconsistent with the school’s religious tenets, and contains no
further limiting language such as a requirement that each religious tenet must be ‘uniformly’ applied to
qualify. 20 U.S.C. § 1681(a)(3).” Mot. to Certify, p. 9, ECF No. 32. However, as discussed supra, this
Court has cited case authority indicating that a Defendant in a retaliation case may legitimately
challenge the uniform application of an employer’s religious justification without challenging that
employer’s religious beliefs. See, e.g., DeMarco, 4 F.3d at 170–171. Defendants cite no authority to the
16
demonstrating a substantial ground for difference of opinion on this issue. On the
contrary, this Court has cited DeMarco, 4 F.3d at 170-71, inter alia, for the proposition
that “[t]he pretext inquiry . . . normally focuses upon factual questions such as . . .
whether the rule applied to the plaintiff has been applied uniformly, and whether the
putative non-discriminatory purpose was stated only after the allegation of
discrimination . . . . [I]n those cases where a defendant proffers a religious purpose for
its allegedly discriminatory employment action, a plaintiff will usually be able to
challenge as pretextual the employer’s justification without calling into question the
value or truthfulness of religious doctrine.” See Goodman, 2016 WL 759187 at *6. For
these reasons, Defendants have failed to demonstrate a substantial ground for
difference of opinion.
Accordingly, Defendants’ pending Motion to Certify
Interlocutory Appeal (ECF No. 32) is DENIED.
CONCLUSION
For the reasons stated above, it is this 18th day of July, 2016, ORDERED that:
1.
Defendants’ Motion to Certify Interlocutory Appeal (ECF No. 32) is DENIED;
2.
Defendants’ Motion to Stay Discovery Pending Interlocutory Appeal (ECF No.
33) is DENIED; and
contrary and, accordingly, fail to establish a “substantial ground for difference of opinion” on this
point.
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3.
The Clerk of this Court transmit a copy of this Memorandum Order to
Counsel.
___/s/_____________________
Richard D. Bennett
United States District Judge
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