Grussgott v. Milwaukee Jewish Day School Inc

Filing 36

ORDER signed by Judge J.P. Stadtmueller on 5/30/2017: GRANTING 12 Defendant's Motion for Summary Judgment and DISMISSING action with prejudice. (cc: all counsel) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MIRIAM GRUSSGOTT,

v.

Plaintiff,

MILWAUKEE JEWISH DAY
SCHOOL INC.,

Case No. 16-CV-1245-JPS

ORDER

Defendant.
1.

INTRODUCTION
Plaintiff Miriam Grussgott filed this action on September 16, 2016,

alleging that Defendant Milwaukee Jewish Day School, Inc. violated her
rights under the Americans with Disabilities Act (“ADA”). (Docket #1).
Defendant moved for summary judgment on October 19, 2016, arguing that
it is a religious organization, and that Plaintiff was a ministerial employee,
rendering this dispute outside the purview of the ADA. (Docket #12).
Pursuant to the parties’ agreement, Plaintiff was permitted to conduct
limited discovery on the issues raised in the motion. (Docket #23). That
discovery apparently took almost five months to complete, as Plaintiff did
not submit her response to the motion until May 11, 2017. (Docket #26).
Defendant offered its reply on May 23, 2017. (Docket #32). The motion is
now fully briefed, and for the reasons explained below, it must be granted.
2.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 provides the mechanism for

seeking summary judgment. Rule 56 states that the “court shall grant
summary judgment if the movant shows that 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); see Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016).
A “genuine” dispute of material fact is created when “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court construes
all facts and reasonable inferences in a light most favorable to the nonmovant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir.
2016). In assessing the parties’ proposed facts, the Court must not weigh the
evidence or determine witness credibility; the Seventh Circuit instructs that
“we leave those tasks to factfinders.” Berry v. Chicago Transit Auth., 618 F.3d
688, 691 (7th Cir. 2010). The non-movant “need not match the movant
witness for witness, nor persuade the court that her case is convincing, she
need only come forward with appropriate evidence demonstrating that
there is a pending dispute of material fact.” Waldridge v. Am. Hoechst Corp.,
24 F.3d 918, 921 (7th Cir. 1994).
3.

BACKGROUND
Because many of the core facts are at least facially in dispute, the

Court will provide only a brief timeline here. A detailed description of the
parties’ facts, and their disputes thereof, will be provided in conjunction
with the relevant analysis. All factual discussion is drawn from the parties’
factual briefing, (Docket #28 and #34), unless otherwise indicated.
Defendant is a private primary school providing a Jewish education
to Milwaukee schoolchildren. Plaintiff was hired for the 2013-14 school year
to teach first and second grade Jewish Studies and Hebrew. The classes
were so closely linked that both were addressed in a single regular staff
meeting which was attended by a rabbi. She was hired for her extensive
experience teaching Judaism in schools and congregations. After the first
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year, Defendant offered to continue Plaintiff’s employment for the next
school year, 2014-15. Plaintiff requested that she not teach first graders, and
Defendant obliged. Plaintiff returned the next year, this time teaching
Hebrew to second and third graders.
According to her complaint, Plaintiff suffers from mental
impairment due to a brain tumor, the treatment of which caused her to
leave work for a time. (Docket #1 at 2-3). In March 2015, Plaintiff had a
confrontation with a student’s parent, wherein the parent mocked Plaintiff
for her mental limitations. Id. at 3. When Defendant heard about the
incident, it fired Plaintiff immediately rather than investigate the matter or
engage in progressive discipline. Id. at 4.1
4.

ANALYSIS
As noted above, Defendant’s motion presents only one issue:

whether the ministerial exception to employment discrimination claims
bars Plaintiff’s suit. The ADA requires reasonable accommodation of
employees with disabilities, and prohibits firing such employees because of
their disabilities. See 42 U.S.C. § 12112(a), (b). This rule does not apply,
however, to the “ministerial” employees of a religious organization.
Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171,

As part of her factual presentation, Plaintiff offers the testimony of
Michael Broyde, a law professor at Emory University, “to provide expert
testimony at trial on the question of whether the employee Miriam Grussgott is an
except [sic] ministerial employee of the Milwaukee Jewish Day School under the
holding of Hosanna Tabor Evangelical Lutheran Church & School v. EEOC and the
related discrimination laws and relevant state law.” (Docket #30 at 2). With due
respect to Mr. Broyde, application of precedent to a given factual scenario is a
question of law, and the Court is the only expert permitted to address such
questions. Jimenez v. City of Chicago, 732 F.3d 710, 721 (7th Cir. 2013). His testimony
has been entirely disregarded.
1

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188 (2012). This “ministerial exception” is rooted in the First Amendment’s
religious clauses, Establishment and Free Exercise, in that a religious
employer’s First Amendment interests override the protections afforded to
an employee by employment discrimination laws when both apply. Id. at
182-190.2
For the exception to apply, the Court must find that Plaintiff is a
“minister.” Id. at 190-92. This does not mean that Plaintiff must be an

The Seventh Circuit explained the reasoning behind the ministerial
exception in addressing a claim of employment discrimination pursuant to Title
VII:
2

As the Fifth Circuit first articulated in McClure v. The
Salvation Army, 460 F.2d 553, 560 (5th Cir. 1972), “application of the
provisions of Title VII to the employment relationship existing
between. . .a church and its minister would result in an
encroachment by the state into an area of religious freedom which
it is forbidden to enter by the principles of the free exercise clause
of the First Amendment.” This rule, often referred to as “the
ministerial exception,” was further developed by the Fourth Circuit
in Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d
1164 (4th Cir. 1985), and adopted by this circuit in Young v. The
Northern Illinois Conference of United Methodist Church, 21 F.3d 184
(7th Cir. 1994). The court in Rayburn, recognizing tensions between
freedom of religion on the one hand and the attempt to eradicate
discrimination on the other, concluded that in the context of Title
VII claims brought against a church by its ministers the “balance
weighs in favor of free exercise of religion.” 772 F.2d at 1168. The
court explained that the “right to choose ministers without
government restriction underlies the well-being of religious
community.” Id. at 1167. While this ruling may seem in tension with
Title VII, we concur with the Fourth Circuit when it stated: “While
an unfettered church choice may create minimal infidelity to the
objectives of Title VII, it provides maximum protection of the First
Amendment right to free exercise of religious beliefs.” Id. at 1169.
Alicea-Hernandez v. Catholic Bishops of Chicago, 320 F.3d 698, 702-03 (7th Cir. 2003).

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ordained head of a congregation. Id. at 190. Rather, “[i]n determining
whether an employee is considered a minister for the purposes of applying
this exception, we do not look to ordination but instead to the function of
the position.” Alicea-Hernandez, 320 F.3d at 703. This inquiry is focused on
the position the employee occupied, not the reasons for her termination; to
ask whether the reasons were religious or secular would bring First
Amendment concerns back to the fore. Id.; Hosanna-Tabor, 565 U.S. at 19495.
Hosanna-Tabor is the most recent controlling precedent on
application of the ministerial exception (the Seventh Circuit has not had
occasion to squarely address the issue since 2012), and so the Court places
its greatest reliance on that opinion. There, the Hosanna-Tabor Evangelical
Church and School (the “Church”) was a religious primary school. HosannaTabor, 565 U.S. at 177. It employed two categories of teachers: “called,” who
have both academic and religious qualifications, and “lay,” who had no
religious requirements. Id. Cheryl Perich (“Perich”) was hired as a lay
teacher, then became a called teacher soon thereafter. Id. at 178. She received
a “diploma of vocation” and became a commissioned minister. Id. Her
duties included various secular (math, science, language arts classes) and
religious (religion class, leading prayers, attending services) assignments.
Id. Perich was diagnosed with narcolepsy, left work, and was eventually
terminated when she attempted to return to work. Id. at 178-79.
The Hosanna-Tabor Court did not “adopt a rigid formula for deciding
when an employee qualifies as a minister,” or otherwise announce any
elements to be followed, but instead engaged in a fact-intensive analysis
based on the general principles cited above. Id. at 191-94. It found the
following facts relevant:
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1)

Her title was “Minister of Religion, Commissioned,” and she
was tasked in performing that role in accordance with
religious guidance;

2)

The title required significant religious training as well as a
formal commissioning by the congregation;

3)

Perich held herself out as a minister, accepting the “called”
teaching position, taking a religious employee tax allowance,
and in seeking to return to work, stating that she felt that God
was calling her back to a teaching ministry; and

4)

Her job duties “reflected a role in conveying the Church’s
message and carrying out its mission,” including regularly
teaching religion classes and leading prayers.

Id. at 191-92. The Court further noted that “[a]s a source of religious
instruction, Perich performed an important role in transmitting the
Lutheran faith to the next generation.” Id. at 192. In light of “the formal title
given Perich by the Church, the substance reflected in that title, her own
use of that title, and the important religious functions she performed for the
Church,” the Court held that she was a minister. Id.
Hosanna-Tabor also discussed errors made by the Court of Appeals
in its decision on appeal. First, it gave too little weight to Perich’s title, and
the religious training and mission underlying it. Id. at 192-93. Second, the
fact that lay teachers performed the same religious duties as Perich was
relevant to, but not dispositive of, the question of whether her position was
ministerial. Id. at 193. Finally, the Court of Appeals focused too much on
the division of time between religious and secular duties. Id. While this is a
relevant factor, Hosanna-Tabor sought to avoid resolving the ministerial
exception by merely referencing a stopwatch. Id.
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Initially, the Court finds that Defendant is a religious organization
entitled to claim the ministerial exception. Though Hosanna-Tabor and
Seventh Circuit precedent focus on whether the subject employee is a
minister, it is clear that the Court must make a preliminary determination
of whether the employer is a religious group which enjoys First
Amendment protection. See Stately v. Indian Comm. Sch. of Milwaukee, Inc.,
351 F. Supp. 2d 858, 867-69 (E.D. Wis. 2004); Ginalski v. Diocese of Gary, No.
2:15-CV-95-PRC, 2016 WL 7100558, at *5 (N.D. Ind. Dec. 5, 2016). In most
cases this issue is not disputed, and Plaintiff’s attempt to contest it here is
meritless.
Plaintiff concedes that Defendant is a private school providing a
Jewish education. However, Plaintiff questions whether Defendant seeks to
teach Judaism as a religion or from an historical and cultural perspective.
The former is clearly predominant. Defendant was founded by rabbis who
wanted to provide a non-Orthodox school option to Jewish families.
Defendant’s mission statement reads: “[w]here academic excellence and
Jewish values prepare children for a lifetime of success, leadership and
engagement with the world.” (Docket #14-1 at 5).
Defendant’s students are all Jewish and many non-Orthodox rabbis
send their children to study there. Defendant claims that “[t]he religious
mission of MJDS permeates every aspect of the school.” (Docket #28 at 4).
For instance, students engage in religious study and prayer daily, as well
as observing Jewish holidays and pre-Sabbath rituals. Defendant has a
Jewish chapel and Torah scrolls and prominently displays religious texts on
its walls. Defendant’s policy and procedures manual (the “Manual”)
describes its religious nature and history, as well as including a section
devoted to “Jewish Life.” (Docket #14-1). Defendant’s website boasts that it
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is “a place to strengthen children’s connections to Jewish life.” (Docket #28
at 6). Defendant maintains that while it does teach secular subjects so that
its students may be prepared for later schooling, its Jewish mission and
religious teaching are the reasons it exists. Parochial schools are considered
religious organizations for purposes of applying the ministerial exception,
and Defendant fits neatly within that category. Fratello v. Roman Catholic
Archdiocese of N.Y., 175 F. Supp. 3d 152, 165 (S.D.N.Y. 2016) (collecting
cases).
Plaintiff’s only counterargument is that Defendant’s policy and
procedures manual (the “Manual”) includes a non-discrimination
provision which prohibits, inter alia, religious discrimination. (Docket #141 at 8-9). Plaintiff contends that this policy shows a lack of commitment to
Judaism, as opposed to any other religion. Further, she argues that
Defendant “would be violating its own policies if it discriminated based on
religion, which means that no one who this policy applies to can be subject
to the ministerial exemption.” (Docket #28 at 4-5). This single provision of
the Manual cannot stem the tide of other evidence cited above
demonstrating Defendant’s religiosity. Defendant unquestionably qualifies
as a Jewish religious organization.
Returning to Hosanna-Tabor’s primary inquiry, whether the subject
employee can be considered a “minister,” Defendant maintains that
Plaintiff’s work was essential to its faith-based mission. Plaintiff taught a
program called “Tal Am,” “an integrated Hebrew and Jewish Studies
curriculum which requires certification.” (Docket #28 at 10). She both led
and participated in daily prayers, and also taught certain prayers to
students. Plaintiff included Jewish content in her classes, such as studying
the Torah, using Jewish symbolism, and teaching about Jewish holidays.
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An e-mail from a substitute teacher to Plaintiff demonstrates that Judaic
influence pervaded Plaintiff’s daily teaching activities. (Docket #14-5).3

3

The e-mail reads:

Hi Miriam,
We got through all the pages you mentioned: 51, 52, 3 in the album, a gimel
page, and reading Chayei Sarah (page 50 seemed to have been done already by
most of them). We did not do the cut out stuff on the Chayei Sarah page or color
it in. I never got any e-mail from you, but it was OK since we talked on the phone
and I took notes. I left the new pictures, words, and gimel worksheets in your
mailbox.
We went over the months, the days of the week, the weather, Modeh Ani,
Sh'ma/V'ahavta. I called up volunteers, and most people who wanted to, got turns
to lead or re-sing or place magnets on the board.
I introduced gav (and beten), gag, and gan with motions to go with them
(and we did them as class and also with each kid getting an individual turn). We
also reviewed what a kitah is (because they were unclear), and I
introduced/reviewed what a gamal is, because it came up in our story of the
parasha and it’s a gimel word.
When we did the parasha, I used the big book for the pictures, and I had
different kids come up to act out part of the Eliezer story (I guided them). I
introduced what the cave of machpelah was, and we reviewed who Avraham,
Sarah, Yitzchak, Eliezer, and Rivkah were. I had the kids recall what Avraham and
Sarah were famous for (that I know they learned about in kindergarten) and they
remembered the term hachnasat orchim. Almost all of this I did in Hebrew, but
often I would rephrase a Hebrew word in English to make sure they knew what
was going on.
Overall the kids were not well behaved, and regardless of whether I
explained instructions in Hebrew or English (and I always tried Hebrew first),
having them maintain eye contact or follow directions was a huge challenge. I was
actually surprised by this, since I do know all of them by name and I also know
most of their parents. [Redacted] was completely non-compliant from the very
beginning, and had to be removed from the room physically. Several others were
blatantly disrespectful. Of course there were others who were angelic. We spent
time on the rug at the beginning and end of class, time at the tables, and lots of
time moving around. It's a very long class for them. I did also touch base with Barb
Lutsky after class as well.
I hope you feel better soon! Let me know if you have any other questions
or if you want me to elaborate on anything we did!
(Docket #14-5 at 2-3).

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Plaintiff counters that Tal Am instructors do not need to be Jewish
or even religious to obtain the required certification. Her participation in
any prayers and inclusion of Jewish symbolism and holidays were purely
voluntary and not part of her job requirements. Plaintiff further contends
that her job had no real responsibilities or duties with regard to the Jewish
religion. Defendant concedes that Plaintiff was not an ordained minister,
and that her position as a grade school teacher did not reflect significant
religious training or a formal commissioning process. Plaintiff was not
required to have, and did not accept, a religious call to her position, nor did
Defendant demand that Plaintiff conform her personal religious conduct to
any standard.
Plaintiff’s role does not fit neatly within the factors Hosanna-Tabor
found relevant. She is not an ordained minister and no one held her out as
one, and her job did not require prior religious training or commissioning.
In Plaintiff’s case, however, these formalistic factors are greatly outweighed
by the duties and functions of her position. Hosanna-Tabor, 565 U.S. at 199
(“The ‘ministerial’ exception should . . . apply to any ‘employee’ who leads
a religious organization, conducts worship services or important religious
ceremonies or rituals, or serves as a messenger or teacher of its faith.”)
(Alito, J., concurring). Despite her protestations otherwise, Plaintiff’s job
involved teaching aspects of Judaism to primary schoolchildren. This
included teaching Hebrew, teaching prayers, studying the Torah,
recognizing Jewish holidays, and following the Tal Am program. As with
Perich in Hosanna-Tabor, Plaintiff “performed an important role in
transmitting the [Jewish] faith to the next generation.” Id. at 192. Plaintiff
stresses that she only taught Jewish Studies in her first year and Hebrew
alone in the second. This contention is meaningless; Plaintiff admits to
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teaching a great deal about Judaism and specifically that her role was
closely linked to Defendant’s Jewish mission. (Docket #33-1 at 6-8).4
Seventh Circuit decisions preceding Hosanna-Tabor support this
result. In Alicea-Hernandez, the Court of Appeals applied the ministerial
exception to a church’s press secretary, noting that her role was “critical in
message dissemination, and a church’s message, of course, is of singular
importance.” 320 F.3d at 704. The press secretary “served as a liaison
between the Church and the community to whom it directed its message.”
Id. While she did not speak to the community as a whole, Plaintiff’s job
nevertheless communicated Defendant’s Jewish message to the youngest of
Milwaukee’s Jewish flock. The Tomic court held that a church’s music
director qualified as a “minister,” because the playing of religious music is
an integral part of religious observance and he was involved in selecting
appropriate hymns. Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036, 104041 (7th Cir. 2006) abrogated on other grounds, Hosanna-Tabor, 565 U.S. at 195
n.4 (deciding that the ministerial exception is an affirmative defense, not a
jurisdictional bar as Tomic believed). Like Tomic’s selection of music,
Plaintiff’s lesson plans, including their Judaic content, were set by Plaintiff.
See also Ginalski, 2016 WL 7100558, at *4 (collecting cases ruling on the

4

One admission is particularly damning:

Request No. 26: Admit that your role as a Hebrew and
Jewish Studies teacher was important and closely linked to MJDS’
mission to promote, and educate its students about, Judaism.
Response: Plaintiff admits to teaching Judaism/practicing
Jewish Religion.
(Docket #33-1 at 8).

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ministerial exception since Hosanna-Tabor, which variously applied the
exception to a “spiritual director,” music director, music teacher, and a
“called” Lutheran teacher, but not to a janitor, computer teacher, or a school
librarian).5
Plaintiff’s primary dispute is that in teaching her subjects and
conducting various Judaism-centered class activities, she approached the
religion from a cultural and historical perspective rather than a faith-based
one. This issue revolves around Plaintiff’s Hebrew class as opposed to
Jewish Studies. Defendant argues that Hebrew is “more than just a
language. It is an expression of Judaism[.]” (Docket #14 at 5). Hebrew is the
language of Jewish religious texts, and the language itself is “imbued with
religious symbolism.” Id. In Defendant’s view, Hebrew is not simply a
second language course like Spanish; teaching Hebrew means teaching the
Torah, Jewish heritage, and Judaism itself. Id. at 5-6. Plaintiff believes the

Plaintiff cites two district court decisions which apply out-of-date
standards to the ministerial exception, and are therefore inapposite. Longo found
that an employee was not a minister, because the undisputed facts did not
establish that “plaintiff’s duties were ‘exclusively religious’ as in the Powell case,
or even primarily religious in that they consisted of spreading the faith, or
supervising or participating in religious ritual or worship.” Longo v. Regis Jesuit
High Sch. Corp., 02-CV-1957-PSF-OES, 2006 WL 197336, at *7 (D. Colo. Jan. 25,
2006). This analysis is inconsistent with Hosanna-Tabor’s instruction that even a
mix of secular and religious functions skewed towards the secular does not mean
that an employee is not a minister. Hosanna-Tabor, 565 U.S. at 193-94. In Guinan,
the court limited the ministerial exception to employees who “functioned as a
minister or a member of the clergy,” noting that “the application of the ministerial
exception to non-ministers has been reserved generally for those positions that are,
at the very least, close to being exclusively religious based, such as a chaplain or a
pastor’s assistant.” Guinan v. Roman Catholic Archdiocese of Indianapolis, 42 F. Supp.
2d 849, 852-53 (S.D. Ind. 1998). In light of Hosanna-Tabor and the other more recent
precedent cited above, the ministerial exception clearly extends beyond Guinan’s
boundaries.
5

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opposite. To her, Hebrew is cultural and historical, not overtly religious.
Plaintiff points to the following to support her position:
Judaism has many fluent and articulate spokesmen
who express via Hebrew their “Judaism” as cultural and
secular. Our Founding Fathers were knowledgeable of
Hebrew. Not one of them was Jewish. The official seal of Yale
University, “Urim Ve Thumim,” is Hebrew, even though Yale
is not a Jewish School. Hebrew language, like Spanish, is
cultural and historical but not predominately religious.
Hebrew is the language of 7 million Israelis, a majority of
whom are not “religious.”
(Docket #29 at 3-5) (citations omitted).
The Court is not convinced that Plaintiff’s scattershot evidence
creates a genuine dispute of fact on the matter. More importantly, Plaintiff’s
position violates the principles behind the ministerial exception. The
exception helps ensure that federal courts stay out of matters of faith and
doctrine as required by the First Amendment. Tomic, 442 F.3d at 1039.
Plaintiff’s argument questions the tenets of Defendant’s practice of
Judaism, namely whether they can hold Hebrew as sacred. The First
Amendment clearly protects Defendant’s right to choose its religious
beliefs, and the Court is unable to interfere in what is a matter of faith. Emp.
Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 886 (1990)
(“Repeatedly and in many different contexts, we have warned that courts
must not presume to determine the place of a particular belief in a religion
or the plausibility of a religious claim.”).6 The Court recognizes that in

DeMarco, a Second Circuit case which preceded the modern development
of the ministerial exception, provides a useful contrast. Tomic, 442 F.3d at 1041;
DeMarco v. Holy Cross High Sch., 4 F.3d 166, 171-72 (2d Cir. 1993). DeMarco held
that a math teacher could proceed on his age discrimination claim, even though
the reasons for terminating him involved his failure to carry out religious duties.
6

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certain cases, a religious organization could abuse this deference by
claiming that certain apparently secular activities are actually religious.
Consideration of those hypothetical cases and their unique facts must wait
until they arise.7
Even assuming that instruction on Hebrew is secular, Plaintiff
cannot dispute that a substantial portion of her classroom activities were
directed at teaching the Jewish faith. Like Hosanna-Tabor, this Court will not
consult a stopwatch to determine the ratio between her religious and
secular instruction. In the same vein, Tomic observed that “Tomic’s [music

DeMarco, 4 F.3d at 167. The two failures cited by his employer were attending mass
and leading students in prayers. Id. The court noted that “[t]here may be cases
involving lay employees in which the relationship between employee and
employer is so pervasively religious that it is impossible to engage in an agediscrimination inquiry without serious risk of offending the Establishment
Clause.” Id. at 172. In the case at hand, however, the Second Court found that the
district court should be able to try those discrete issues to a jury “without putting
into issue the validity or truthfulness of Catholic religious teaching.” Id. Plaintiff’s
case appears to be the hypothetical envisioned by DeMarco. Teaching Hebrew is
so intertwined with Judaism that there is no way to separate out any of its secular
components without questioning the validity of an aspect of Jewish belief, thereby
offending the First Amendment.
Plaintiff’s analogy to the Spanish language is also inapt. Spanish is spoken
by a wide range of persons across the globe with varying beliefs, and is not the
sacred or symbolic language of any major religion. A better comparison would be
Latin, the primary language of the Romans, whose empire has been extinct for
centuries. Latin was also formerly the exclusive language of Catholic religious
worship. While Latin was once a widespread form of communication, it is all but
dead today. Nevertheless, many Catholic educational institutions still teach Latin
as a sacred or liturgical language, connected to the institution’s overall religious
instruction. No one could reasonably believe that those schools are teaching Latin
in an attempt to increase their students’ communication skills. Hebrew is only a
majority language in Israel. Plaintiff cannot reasonably contend that Defendant is
teaching Hebrew so that its students may more easily converse with people
thousands of miles away. Rather, like Latin in Catholic schools, learning Hebrew
is a component of Defendant’s Jewish curriculum.
7

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director] duties, unlike those, say, of the person who tunes the organ in St.
Mary’s Cathedral, had a significant religious dimension[.]” Tomic, 442 F.3d
at 1041. Plaintiff taught many Jewish concepts to Jewish schoolchildren at a
school which “is committed to providing academic excellence and to
educating Jewish children in the values and traditions of our Jewish
heritage.” (Docket #14-1 at 5). Regardless of any secular duties Plaintiff may
have had, this role included an unmistakable religious dimension. Though
this case is not as clear cut as Hosanna-Tabor, Defendant’s constitutional
rights must override Plaintiff’s employment discrimination concerns in a
close case. Rayburn v. Gen. Conf. of Seventh-Day Adventists, 772 F.3d 1164,
1169 (4th Cir. 1985) (“While an unfettered church choice may create
minimal infidelity to the objectives of Title VII, it provides maximum
protection of the First Amendment right to the free exercise of religious
beliefs.”). Plaintiff must be considered a “minister,” and she is therefore
subject to the ministerial exception.
5.

CONCLUSION
Because Plaintiff’s former job is considered a ministry of Judaism,

the First Amendment bars her from proceeding on an ADA claim against
Defendant. Defendant’s motion for summary judgment must be granted
and this action dismissed with prejudice.
Accordingly,
IT IS ORDERED that Defendant’s motion for summary judgment
(Docket #12) be and the same is hereby GRANTED; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED with prejudice.
The Clerk of the Court is directed to enter judgment accordingly.

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Dated at Milwaukee, Wisconsin, this 30th day of May, 2017.
BY THE COURT:

____________________________
J. P. Stadtmueller
U.S. District Judge

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