Preece v. The Covenant Presbyterian Church

Filing 93

ORDER that the defendant's Motion for Reconsideration 87 is denied. The hearing will be held before the undersigned magistrate judge on Friday, April 10, 2015, at 10:00 a.m., in Courtroom No. 7, Second Floor, Roman L. Hruska United States Cour thouse, 111 South 18th Plaza, Omaha, Nebraska. On or before April 8, 2015, counsel shall file briefs including a complete recitation of the facts, with pin point citation to the record, and law in support of their respective positions on the issue of whether the plaintiff was a "minister" for the defendant requiring application of the ministerial exception. Ordered by Magistrate Judge Thomas D. Thalken. (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

RICHARD JEREMIAH PREECE, an
Individual,
8:13CV188
Plaintiff,
vs.

ORDER

THE COVENANT PRESBYTERIAN
CHURCH, a Nebraska non-profit
domestic corporation,
Defendant.
This matter is before the court on the defendant’s Motion for Reconsideration
(Filing No. 87). The defendant seeks reconsideration of the court’s March 6, 2015,
Memorandum and Order (Filing No. 82) denying the defendant’s Motion for Summary
Judgment (Filing No. 52).1 The defendant filed a brief (Filing No. 88) in support of the
motion.

The plaintiff filed a brief (Filing No. 90) opposing reconsideration.

The

defendant filed a brief (Filing No. 91) in reply.
The defendant employed the plaintiff from August 1, 2010, until July 3, 2012.
See Filing No. 1 - Complaint ¶¶ 1, 9. The plaintiff alleged the defendant terminated his
employment due to his gender and marital status, and in retaliation for complaining
about sexual harassment committed by a pastor who was the plaintiff’s direct
supervisor. Id. ¶¶ 11, 15. Specifically, the plaintiff alleges he filed for divorce during his
employment and became the single parent of four children. Id. ¶ 10. Additionally, the
plaintiff alleges he was subjected to “episodes of uninvited touches, elongated frontal
body hugs, back rubs and neck massages, private office visits, and unsolicited
invitations for drinks, dinner and companionship” on a daily basis. Id. ¶ 11. Based on
these allegations, the plaintiff asserts claims against the defendant for:

1) gender

discrimination, in violation of Title VII of the Civil Rights Act of 1967, as Amended, 42
U.S.C. § 2000e-2, et seq. (Title VII), and the Nebraska Fair Employment Practices Act,
Neb. Rev. Stat. § 48-1101, et seq. (NFEPA); 2) marital status discrimination, in violation
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On March 6, 2015, after entering the order on summary judgment, Senior Judge Joseph F. Bataillon
transferred this case to the undersigned in accordance with the parties’ consent to jurisdiction by a United
States Magistrate Judge and 28 U.S.C. § 636(c). See Filing No. 83.

of the NFEPA; and 3) retaliation, in violation of Title VII and the NFEPA. See Filing No.
1 - Complaint. The defendant generally denies the plaintiff’s allegations, alleging the
plaintiff resigned for personal reasons. See Filing No. 13 - Answer.
On September 26, 2014, the defendant filed a motion for summary judgment on
the bases the plaintiff failed to provide proper notice of sexual harassment and, in any
event, the First Amendment to the U.S. Constitution and the ministerial exception to
employment discrimination statutes shield the defendant from liability. See Filing Nos.
52 and 55. On March 6, 2015, the court denied summary judgment finding material
issues exist about whether (1) the plaintiff was a “minister” for the defendant, such
status being a prerequisite to applying the ministerial exception; (2) the alleged sexual
harassment was severe and pervasive enough to create a hostile work environment;
and (3) the plaintiff was reasonable in reporting sexual harassment to the person who
he wrongly believed to be his immediate supervisor. See Filing No. 82.
On March 17, 2015, the defendant filed the instant motion for reconsideration
arguing the court committed manifest errors of law and fact justifying reconsideration of
the court’s March 6, 2015, Memorandum and Order denying summary judgment. See
Filing Nos. 87, 88, and 91. First, the defendant contends the court erred by failing to
apply the ministerial exception, as a matter of law, by disregarding relevant case law
and undisputed facts supported by the record and by finding a question of fact existed.
See Filing No. 88 - Brief p. 2-9; Filing No. 91 - Reply p. 2. Second, the defendant
argues the court failed to identify any evidence that the alleged sexual harassment
affected a term, condition, or privilege of the plaintiff’s employment. See Filing No. 88 Brief p. 9-11; Filing No. 91 - Reply p. 2. Finally, the defendant contends the court erred
by failing to apply the Ellerth-Faragher affirmative defense by disregarding undisputed
evidence demonstrating the plaintiff unreasonably failed to take advantage of
preventative or corrective opportunities provided by the defendant. See Filing No. 88 Brief p. 11-14; Filing No. 91 - Reply p. 2.
The plaintiff denies the defendant provides justification for reconsideration. See
Filing No. 90 - Response p. 1-3. The plaintiff argues the defendant merely wants a
different result. Id. at 3.

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ANALYSIS
The defendant filed the motion for reconsideration pursuant to Federal Rule of
Civil Procedure 60(b).
Motions for reconsideration serve a limited function: to
correct manifest errors of law or fact or to present newly
discovered evidence. They are not to be used to introduce
new evidence that could have been adduced during
pendency of the motion at issue . . . [or] to tender new legal
theories for the first time.
Arnold v. ADT Sec. Servs., Inc., 627 F.3d 716, 721 (8th Cir. 2010) (internal citation
and quotation marks omitted). Under the rule, a court may reconsider a previous order
based on additional facts or a change of circumstances. See Peter Kiewit Sons’, Inc.
v. Wall St. Equity Grp., Inc., No. 8:10CV365, 2012 WL 5400037, at *4 (D. Neb. Nov. 5,
2012).
Reconsideration is appropriate where the movant shows entitlement to relief
under at least one of the following conditions:
(1)
mistake, inadvertence, surprise, or excusable neglect;
(2)
newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move
for a new trial under Rule 59(b);
(3)
fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4)
the judgment is void,
(5)
the judgment has been satisfied . . .; or
(6)
any other reason that justifies relief.
Fed. R. Civ. P. 60(b).
Upon review of the record, the court finds the defendant fails to provide
justification for reconsideration of the court’s March 6, 2015, Memorandum and Order
denying summary judgment. The evidence suggests material disputes of fact exist
precluding summary judgment.
Nevertheless, whether the ministerial exception to employment discrimination
laws “attaches at all is a pure question of law which this court must determine for itself.”
Conlon v. InterVarsity Christian Fellowship, 777 F.3d 829, 834 (6th Cir. 2015)
(relying on Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 132 S.
Ct. 694, 699 (2012)); Miller v. Bay View United Methodist Church, Inc., 141 F. Supp.
2d 1174, 1181 (E.D. Wis. 2001). Accordingly, the court will hold a pretrial hearing to
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resolve any factual disputes regarding the plaintiff’s employment for application, if
appropriate, of the ministerial exception. Upon consideration,

IT IS ORDERED:
1.

The defendant’s Motion for Reconsideration (Filing No. 87) is denied.

2.

The hearing will be held before the undersigned magistrate judge on

Friday, April 10, 2015, at 10:00 a.m., in Courtroom No. 7, Second Floor, Roman L.
Hruska United States Courthouse, 111 South 18th Plaza, Omaha, Nebraska.
3.

On or before April 8, 2015, counsel shall file briefs including a complete

recitation of the facts, with pin point citation to the record, and law in support of their
respective positions on the issue of whether the plaintiff was a “minister” for the
defendant requiring application of the ministerial exception.
Dated this 31st day of March, 2015.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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