Yin v. Columbia International University

Filing 116

ORDER AND OPINION denying 71 MOTION for Section 1292(b) Certification of Issue for Interlocutory Appeal or in the alternative; denying 71 MOTION for Reconsideration re 66 Order Ruling on Report and Recommendation. Accor dingly, this matter is referred to United States Magistrate Judge Paige J. Gossett for the purpose of developing a scheduling order allowing the parties to conduct limited discovery to determine whether the ministerial exception applied to Plaintiff while employed with Defendant. Signed by Honorable J Michelle Childs on 9/28/2017.(asni, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Lishu Yin,

)
)
Plaintiff,
)
)
v.
)
)
Columbia International University,
)
)
Defendant.
)
)
____________________________________)

Civil Action No.: 3:15-cv-03656-JMC

ORDER AND OPINION

This case is before the court on Columbia International University’s (“Defendant”) Motion
for Certification of an Issue for Interlocutory Appeal under 28 U.S.C. § 1292(b). (ECF No. 71.)
In the alternative, Defendant, pursuant to Federal Rule of Civil Procedure 59(e), moves for
reconsideration of this court’s September 26, 2016 order (ECF No. 66) denying Defendant’s
Motion to Dismiss pro se Plaintiff Lishu Yin’s (“Plaintiff”) federal claims for discrimination and
retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII,”) 42 U.S.C. § 2000e, et. seq.
and pay discrimination in violation of the Equal Pay Act of 1963 (“EPA,”) 29 U.S.C. § 206(d).
(Id.) Plaintiff opposes Defendant’s Motion to Reconsider. (ECF No. 84.) For the reasons stated
herein, the court DENIES Defendant’s Motion for Certification of an Issue for Interlocutory
Appeal and DENIES Defendant’s Motion to Reconsider.
I.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff filed her Complaint in this court pro se on September 11, 2015. (ECF No. 1.)
Plaintiff alleges that Defendant discriminated and retaliated against her on the basis of race, sex,
and national origin under Title VII.

(Id. at 4, 36.) Plaintiff also alleges a claim of pay

discrimination under the EPA (Id.), and defamation under state law. (Id. at 36.) On November 9,
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2015, Defendant filed a Motion to Dismiss for Failure to State a Claim pursuant to Fed. R. Civ. P.
12(b)(6) and/or to Strike pursuant to Fed. R. Civ. P. 12(f). (ECF No. 20.) On April 11, 2016,
Magistrate Judge Paige Gossett issued a Report and Recommendation (“Report”) granting
Defendant’s Motion to Dismiss Plaintiff’s defamation claim, and denying Defendant’s Motion to
Dismiss Plaintiff’s federal claims and its Motion to Strike Plaintiff’s allegedly untimely
allegations. (ECF No. 40.) On September 26, 2016, after proper objections were filed by both
Plaintiff and Defendant to the Magistrate Judge’s Report (ECF Nos. 43, 44), this court entered an
order adopting the Magistrate Judge’s Report. (ECF No. 66.)
On October 24, 2016, Defendant filed its Motion for Certification of an Issue for
Interlocutory Appeal under 28 U.S.C. § 1292(b) or, in the Alternative, Motion to Reconsider under
Fed. R. Civ. P. 59(e), stating that Plaintiff was a minister, thus barring her federal claims under the
ministerial exception. 1 (ECF No. 71.) On November 10, 2016, Plaintiff filed a Response in
Opposition to Defendant’s Motion for Certification of an Issue for Interlocutory Appeal or, in the
Alternative, Motion to Reconsider, denying among other things that she is a “minister” thus
making the “ministerial exception” inapplicable. (ECF No. 84.) Defendant replied to Plaintiff’s
response in opposition, reaffirming the facts and law that were present in its original Motion (ECF

1

See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171, 188, 190
(2012) (recognizing the existence of a “ministerial exception,” grounded in the First Amendment,
that “precludes application of [employment discrimination laws] to claims concerning the
employment relationship between a religious institution and its ministers,” and holding that “[t]he
ministerial exception is not limited to the head of a religious congregation”); see also E.E.O.C. v.
Roman Catholic Diocese of Raleigh, N.C., 213 F.3d 795, 800 (4th Cir. 2000) (“[t]he ministerial
exception operates to exempt from the coverage of various employment laws the employment
relationships between religious institutions and their ‘ministers.’”); Hosanna-Tabor, 565 U.S. at
198 n.1 (Alito, J., joined by Kagan, J., concurring) (identifying the antidiscrimination laws “that
are often implicated in cases involving the [ministerial] exception” as: 42 U.S.C. § 2000e(f) (Title
VII); § 12111(4) (ADA) (2012); 29 U.S.C. § 630(f) (ADEA); and § 206(e) (Equal Pay Act and
Fair Labor Standards Act), and noting that “Protestant ministers, Catholic priests, and Jewish
rabbis” clearly fall within the ministerial exception).
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Nos. 71, 71-1). (ECF No. 95.) On July 20 and July 28, 2017, Defendant filed Supplemental
Authorities in Support of its Motion for Reconsideration. (ECF Nos. 110, 114.) On July 25 and
August 1, 2017, Plaintiff filed Memoranda in Opposition. (ECF Nos. 111, 115.)
II.

JURISDICTION

This court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331. Plaintiff alleges
claims under Title VII and the EPA, thus, Plaintiff’s claims arise under the laws or Constitution of
the United States and jurisdiction is proper.
III.

LEGAL STANDARD

a. Interlocutory Appeal Under 28 U.S.C. § 1292(b)
In civil actions, a party may only appeal from final orders and certain limited interlocutory
and collateral orders of the district courts. See 28 U.S.C. §§ 1291, 1292; see also Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541, 545 (1949). This limitation “advances the important
interest of avoiding piecemeal review of ongoing district court proceedings,” which “would not
only delay the ultimate resolution of disputes by spawning multiple appeals,” but would also
“undermine the independence of the district judge.” MDK, Inc. v. Mike’s Train House, Inc., 27
F.3d 116, 119 (4th Cir. 1994) (citations omitted).
A district court may certify an order to the Court of Appeals for interlocutory review under
28 U.S.C. § 1292(b) when the district judge believes that the order involves “a controlling question
of law as to which there is substantial ground for difference of opinion and that an immediate
appeal from the order may materially advance the ultimate termination of the litigation.” See Swint
v. Chambers Cty. Comm'n, 514 U.S. 35, 37 (1995) (“. . . 28 U.S.C. § 1292(b) confers on district
courts, first line discretion to certify for immediate appeal interlocutory orders deemed pivotal and
debatable . . .”)

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b. Reconsideration Pursuant to Fed. R. Civ. P. 59(e)
Under Fed. R. Civ. P. 59(e), a court may “alter or amend the judgment if the movant shows
either (1) an intervening change in the controlling law, (2) new evidence that was not available at
trial, or (3) that there has been a clear error of law or a manifest injustice.” Robinson v. Wix
Filtration Corp., 599 F.3d 403, 407 (4th Cir. 2010) (citation omitted). It is the moving party’s
burden to establish one of these three grounds in order to obtain relief under this rule. Loren Data
Corp. v. GXS, Inc., 501 Fed. App’x 275, 285 (4th Cir. 2012). The decision whether to reconsider
an order pursuant to this rule is within the discretion of the district court. See Hughes v. Bedsole,
48 F.3d 1376, 1382 (4th Cir. 1995).
IV.

ANALYSIS

a. Motion for Certification of an Order for Interlocutory Appeal under 28 U.S.C. §
1292(b)
Pursuant to section 1292(b), Defendant seeks to certify to the United States Court of
Appeals for the Fourth Circuit for interlocutory review the court’s order declining to apply the
ministerial exception to this case. The court finds that certifying this order is improper because it
does not dispute Defendant’s contention below:
[T]he [ministerial] exception is a threshold question to be decided at the
earliest possible stage in the litigation by reviewing all available pleadings
to determine if the exception applies as a matter of law. (ECF No. 71-1 at
3.)
Under section 1292(b), there must be a “controlling question of law as to which there is
substantial ground for difference of opinion” in order for this court to certify an order for
interlocutory appeal. In adopting the Magistrate Judge’s Report, the court noted that Defendant

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has the right to raise an affirmative defense 2 under a Fed. R. Civ. P. 12(b)(6) motion, but, “[on]
the face of Plaintiff’s [C]omplaint, [it] does not establish that she was a ministerial employee . . .
[and thus] Defendant’s defense would not bar suit at this time.” (ECF No. 66 at 12.) Moreover,
the Magistrate Judge’s Report did not find that the ministerial exception would never apply in this
case, stating in a footnote, that “[t]he [c]ourt notes that with a more fully developed factual record,
the application of the ministerial exception may be revisited.” (ECF No. 40 at 9 n.2.)
In Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C., 565 U.S. 171
(2012), the United States Supreme Court upheld the district court’s grant of summary judgment in
favor of the defendant church. The Court recognized for the first time the existence of the
“ministerial exception,” which is grounded in the First Amendment and “precludes application of
[employment discrimination laws] to claims concerning the employment relationship between a
religious institution and its ministers.” Id. at 188. The Court summarized, “[t]he 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.” Id. at 196.
There is no disagreement with Defendant’s contention that the ministerial exception would
apply, if Plaintiff is an employee falling within the ministerial exception. Therefore, since there
is no controlling question of law on which there is a substantial difference of opinion, i.e., the
applicability of the ministerial exception to employment relationships between religious
institutions and their ministers, there is no need to certify the September 26, 2016 order for this
purpose.

2

See Hosanna-Tabor, 565 U.S. at 195 n.4 (“[Court] concludes that the [ministerial] exception
operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar.”)
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b. Motion to Reconsider Pursuant to Fed. R. Civ. P. 59(e)
Defendant does not suggest that there has been a change in intervening law, nor does it
present new evidence or suggest that there has been a manifest injustice. Instead, Defendant
challenges the court’s order on the basis that the court made a clear error of law. (ECF No. 71-1
at 4.) Defendant asserts that the court made a clear error of law in not finding that its affirmative
defense, the ministerial exception, bars this lawsuit, because the court should have found that the
University is a “ministry” and Plaintiff is a “minister” at this stage in the lawsuit. (Id.) More
specifically, Defendant objects to the following finding in the court’s order:
The court observes that an affirmative defense “may be raised under Rule
12(b)(6), but only if it clearly appears on the face of the complaint.”
Richmond, Fredericksburg & Potomac R.R. v. Forst, 4 F.3d 244, 250 (4th
Cir. 1993) (citations omitted). Upon review, the court observes that the face
of Plaintiff’s Complaint does not establish that she was a ministerial
employee. In this regard, the Complaint’s allegations do not describe
Plaintiff’s duties as involving “spreading the faith, church governance,
supervision of a religious order, or supervision or participation in religious
ritual and worship.” Rayburn, 772 F.2d at 1169. Therefore, the court agrees
with the Magistrate Judge (ECF No. 40 at 8–9) and finds that the ministerial
exception does not at this time bar Plaintiff’s claims asserting violation of
Title VII and the EPA.
(ECF No. 66 at 12.)
Relying solely on the allegations of the Complaint, the court determined that Plaintiff had
not pled facts that align her with the role of a minister. In her Complaint, Plaintiff alleges that she
was hired as a “full-time resident faculty member” in the Masters of Teaching English as a Foreign
Language (TEFL) program based on her credentials in both education and TEFL. (ECF No. 1 at
4, 8 ¶ 1.) Plaintiff alleges that she taught classes in the College of Education and served as the
major professor of TESOL (Teaching English to Speakers of Other Languages). (Id. at 10 ¶ 5.)
Plaintiff further alleges that, on or about February 27, 2012, she signed a contract for the 20122013 school year with Defendant. (Id. at ¶ 6); see also (ECF 1-2 at 44.) Additionally, Plaintiff
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alleges that she signed a different contract for the 2013-2014 school year. (Id. at 12 ¶ 11.); see also
(ECF No. 1-2 at 50-53.)
Defendant, to the contrary, relies on exhibits attached to Plaintiff’s Complaint as
demonstrative of Plaintiff’s ministerial capacity. (ECF Nos. 20-1 at 3-4, 14; 71-1 at 11, 14-17.)
Defendant particularly relies on Plaintiff’s 2013-2014 employment contract. (ECF No. 1-2 at 5053.) Federal Rule of Civil Procedure 10(c) states “a copy of a written instrument that is an exhibit
to a pleading is a part of the pleading for all purposes.” (emphasis added). The Fourth Circuit has
not clearly defined what constitutes a “written instrument,” but considers contracts to be a category
of written instrument. See Jeffrey M. Brown Assocs., Inc. v. Rockville Ctr. Inc., 7 F. App'x 197,
205 (4th Cir. 2001) (“[w]e conclude that JMB “pled itself out of a claim” by attaching the several
contract documents to its complaint [and after the district court reviewed them] . . . properly found
that [Plaintiff] failed to state a claim.”) Other Courts of Appeals have given or adopted a definition
of written instrument. See, e.g., Smith v. Hogan, 794 F.3d 249, 254 (2d Cir. 2015), cert. denied,
137 S. Ct. 566 (2016) (court agreed that plaintiff’s affidavit was not a written instrument because
it was not “a document evidencing legal rights or duties or giving formal expression to a legal act
or agreement”); Rose v. Bartle, 871 F.2d 331, 339 n.3 (3d Cir. 1989) (“the types of exhibits
incorporated within the pleadings by Rule 10(c) consist largely of documentary evidence,
specifically contracts, notes, and other writing[s] on which [a party’s] action or defense is based.”)
In its Motion to Dismiss (ECF No. 20), Defendant asserts an affirmative defense that the
ministerial exception bars Plaintiff’s claim for employment discrimination, retaliation, and pay
discrimination, because she is an employee covered by the ministerial exception, based in part on
Plaintiff’s 2013-2014 employment contract. (ECF No. 20-1 at 3-4, 14.)

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A defendant may raise an affirmative defense as long as all of the facts necessary for the
defense appear on the face of the complaint. See Goodman v. Praxair, Inc., 494 F.3d 458, 464
(4th Cir. 2007); see also Demetry v. Lasko Prod., Inc., 284 F. App'x 14, 15–16 (4th Cir. 2008)
(emphasis added) (“[a] recall notice was part of Demetry's complaint for all purposes, and
established, . . . a fact necessary to establish Lasko's affirmative defense [thus the district court
was proper in considering it].”) Plaintiff’s employment contracts are written instruments and a
part of the pleadings for all purposes and thus when making the determination of whether all
necessary facts for the affirmative defense are present, the court may consider it. See Fed. R. Civ.
P. 10(c). Neither the Magistrate Judge, nor this court considered the exhibits attached to Plaintiff’s
Complaint, including her employment contracts, to determine whether the ministerial exception
would apply. The court finds that it should have considered Plaintiff’s employment contracts, in
deciding Defendant’s Motion to Dismiss and does so now.
The Supreme Court in Hosanna-Tabor, 565 U.S. 190-92 (2012), outlined criterion to
determine whether an employee fits within the ministerial exception, considering the title of the
position, the “substance reflected in that title,” the qualifications one needs for the job, and the
“important religious functions” an employee performs. The Court declined “to adopt a rigid
formula for deciding when an employee qualifies as a minister.” Id. at 190. Instead, the Court only
held that “the exception covers [plaintiff] given all the circumstances of her employment.” Id. The
Fourth Circuit, in recognizing the ministerial exception, declared that the ministerial exception
covers employees “whose duties consist of teaching, spreading the faith, church governance . . . or
supervision or participation in religious ritual and worship.” Rayburn v. Gen. Conference of
Seventh-Day Adventists, 772 F.2d 1164, 1169 (4th Cir. 1985).

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Defendant provides the court with two cases, Grussgott v. Milwaukee Jewish Day Sch. Inc.,
No. 16-CV-1245-JPS, 2017 WL 2345573 (E.D. Wis. May 30, 2017) and Fratello v. Archdiocese
of N.Y., 863 F.3d 190 (2d Cir. 2017) that supplement its Motion for Reconsideration and exemplify
how courts have utilized the Supreme Court’s findings in Hosanna-Tabor. (ECF Nos. 110, 114.)
Both of these cases were decided on summary judgment after limited discovery as to the question
of whether plaintiffs were ministers within the meaning of the ministerial exception. Fratello, 863
F.3d at 198; Grussgott, 2017 WL 2345573, at *1. Both cases were decided in favor of the
defendant religious institutions. In Grussgott the court reviewed the “duties and functions” of the
plaintiff’s position as an elementary school teacher, and determined that because she taught
Judaism to schoolchildren, including teaching them prayers, studying the Torah, and following the
Tal

Am

program,

a

Hebrew

Language

Arts

and

Jewish

Studies

program

http://www.talam.org/about.html (last visited September 28, 2017), the plaintiff performed an
important role in “transmitting the Jewish faith” to the next generation. 2017 WL 2345573, at *5
(citing Hosanna-Tabor, 565 U.S. at 192.) The court stated that this was a “close case” but the
“unmistakable religious dimension” to the plaintiff’s role subjected her to the ministerial
exception. Id. at *7.
The plaintiff in Fratello was a principal of a Roman Catholic school and the court found
that because she had to complete a number of requirements including, “catechist” certification,
proficiency in a number of religious areas, exercising “spiritual leadership” to ensure a thriving
Catholic school community, among others, all helped her to provide “Catholic leadership” to the
students, faculty and community. 863 F.3d at 208. The court found that these factors tilt in favor
of the plaintiff being a minister within the ministerial exception. Id. Moreover, the court found in
the record that the plaintiff in accepting the role of principal knew that she would be perceived as

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a “religious leader.” Id. The court focused heavily on the religious functions that the plaintiff
performed, including leading daily prayer, encouraging and supervising teachers’ integration of
religious values into their lessons and classrooms, and keeping families connected to their
student’s “religious and spiritual development,” among other functions. Id. at 209. The court
found this to weigh strongly in favor of applying the ministerial exception. Id. However, the court
was able to determine this from the record that was before them on summary judgment. The
district court could not determine whether the ministerial exception applied to the plaintiff at the
motion to dismiss stage and needed more information as to the extent of plaintiff’s ministerial
capacity, thus granting limited discovery. Fratello, 863 F.3d at 198 (the court of appeals found
that limited discovery was appropriate).
Here, Plaintiff alleges that Defendant is “a private, faith-based evangelical Christian
institution.” (ECF No. 1 at 4.) Such institutions are considered as religious institutions covered
by the ministerial exception. Shaliehsabou v. Hebrew Home of Greater Washington, Inc., 363
F.3d 299, 310 (4th Cir. 2004) (“. . . we conclude that a religiously affiliated entity is a ‘religious
institution’ for purposes of the ministerial exception whenever that entity's mission is marked by
clear or obvious religious characteristics.”) Plaintiff’s contracts reveal some of Defendant’s
religious characteristics such as affirming that the doctrinal standards of the University express
Plaintiff’s conviction of Christian truth (ECF No. 1-2 at 44) or the mandatory “religious doctrinal
and lifestyle requirements and practices” that faculty must abide by. (Id. at 51 ¶ 4.3.)
While Plaintiff’s employment contracts do not specify she is a minister; they do describe
her as an “associate professor” and “faculty of the ministry.” (Id. at 44, 50.) In Plaintiff’s 20122013 contract, she agrees that she has read the employee handbook, assigned portions of the
“Educational Philosophy and Responsibilities Guide,” the “Biblical and Ministry Standards,” as

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well as those portions of the catalog relevant to “her ministry.” (Id. at 44.) In this contract, she
also affirms that “the doctrinal standards of the University . . . express [her] own conviction of
Christian truth.” (Id.) The 2013-2014 contract states, in part, that the faculty member is to abide
by the policies and procedures of the Ministry. (Id. at 50.) This contract further states in paragraph
4.3, that the faculty member understands that “the Ministry, as a religious institution is, under state
and federal law, exempt from certain statutory requirements concerning discrimination and is
thereby permitted to make hiring and other employment decisions based or [sic] religious tenets
(Title VII, 42 U.S.C. § 2000(e).” (Id. at 51). Paragraph 4.3 also states that it is important for faculty
“to provide religious leadership for students by instruction and example.” (Id.) Additionally, the
contract states that “religious doctrinal and lifestyle requirements and practices are bona fide
occupational qualifications (BFOQ) of employment as permitted under Title VII, 42 U.S.C. §
2000e-2(e)(1),” 3 including being a born-again Christian believer and being faithfully involved in
an evangelical Protestant church whose beliefs and practices are consistent with the Ministry’s
(Defendant) positions. (Id. at ¶¶ 4.3, 4.3.1)
Upon review of Plaintiff’s Complaint and employment contracts, the court finds that there
are not enough facts to establish that Plaintiff qualifies as a minister under the ministerial
exception. At this juncture in the litigation, the allegations and documents establish that Plaintiff
was a faculty member at a religious institution who taught education and TESOL, not religious

3

“it shall not be an unlawful employment practice for an employer to hire and employ employees,
for an employment agency to classify, or refer for employment any individual, for a labor
organization to classify its membership or to classify or refer for employment any individual, or
for an employer, labor organization, or joint labor-management committee controlling
apprenticeship or other training or retraining programs to admit or employ any individual in any
such program, on the basis of his religion, sex, or national origin in those certain instances where
religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to
the normal operation of that particular business or enterprise.” 42 U.S.C. § 2000e-2(e)(1)
(emphasis added).
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topics as in Grussgott. See also E.E.O.C. v. Catholic Univ. of Am., 83 F.3d 455, 465 (D.C. Cir.
1996) (applying the ministerial exception to a member of an ecclesiastical faculty who instructed
students in the “fundamental body of ecclesiastical laws.”) Additionally, Grussgott, Fratello and
Hosanna-Tabor, all were decided by summary judgment, which allows for a more thorough
record, unlike a motion to dismiss.
V.

CONCLUSION

For the aforementioned reasons, the court DENIES Defendant’s Motion for Certification
of an Issue for Interlocutory Appeal under 28 U.S.C. § 1292(b) and DENIES Defendant’s Motion
to Reconsider under Federal Rule of Civil Procedure 59(e).
Accordingly, this matter is referred to United States Magistrate Judge Paige J. Gossett for
the purpose of developing a scheduling order allowing the parties to conduct limited discovery to
determine whether the ministerial exception applied to Plaintiff while employed with Defendant.
IT IS SO ORDERED.

United States District Judge
September 28, 2017
Columbia, South Carolina

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