KOENKE v. SAINT JOSEPH'S UNIVERSITY

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

NOEL KOENKE : CIVIL ACTION

Plaintiff :

: NO. 19-4731

v. :

:

SAINT JOSEPH’S UNIVERSITY :

Defendant :

NITZA I. QUIÑONES ALEJANDRO, J. JANUARY 8, 2021

MEMORANDUM OPINION

INTRODUCTION

Plaintiff Noel Koenke filed this employment discrimination action pursuant to Title IX of

the Education Amendments of 1972, 20 U.S.C. § 1681, et seq., against her former employer,

Defendant Saint Joseph’s University, asserting claims of discrimination based on her sexual

orientation. [ECF 1]. Before this Court is Defendant’s motion to dismiss Plaintiff’s complaint,

filed pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6), for failure to state a claim

upon which relief can be granted. [ECF 5]. Plaintiff opposes the motion. [ECF 8]. The issues

presented in the motion are fully briefed and are ripe for disposition.1 For the reasons stated herein,

Defendant’s motion to dismiss is granted.

BACKGROUND

When ruling on a motion to dismiss, this Court must accept as true all the factual allegations

in Plaintiff’s complaint and construe the complaint in the light most favorable to Plaintiff. Fowler

1 This Court also considered the parties’ notices of supplemental authority and responses thereto,

[ECF 20, 21, 24, 27, 28, 31], and the amicus brief in support of Plaintiff’s opposition filed by New Ways

Ministry, DIGNITYUSA, Dr. Arthur Fitzmaurice, and TransCatholic Apostolate, [ECF 16], and

Defendant’s response to the amicus brief. [ECF 19].

v. UMPC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citing Ashcroft v. Iqbal, 556 U.S. 662,

677 (2009)). The relevant allegations in Plaintiff’s complaint are summarized as follows:

Plaintiff, a homosexual woman, was employed by Defendant, a private,

Catholic university, as an Assistant Director for Music and Worship until she

resigned in November 2017.2 The parties agree that Plaintiff’s position was

ministerial in nature, as defined by the breadth of precedent regarding the

ministerial exception. Plaintiff alleges that she was discriminated against on the

basis of her sex, more specifically, her sexual orientation, and was subjected to a

hostile work environment and tangible adverse employment actions, which

included, inter alia, the imposition of impermissible conditions on her continued

employment, impermissible differential treatment regarding the terms, conditions,

and privileges of her employment, and a constructive discharge.

LEGAL STANDARD OF REVIEW

Rule 12(b)(6) permits a court to grant a motion to dismiss an action if the complaint “fail[s]

to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). When considering a

Rule 12(b)(6) motion, a court “must accept all of the complaint’s well-pleaded facts as true, but

may disregard any legal conclusions.” Fowler, 578 F.3d at 210-11 (citing Iqbal, 556 U.S. at 677).

The court must determine whether the plaintiff has pled facts sufficient to show a plausible

entitlement to relief. Fowler, 578 F.3d at 211. The complaint must do more than merely allege a

plaintiff’s entitlement to relief—it must “show such an entitlement with its facts.” Id. (citations

omitted). The plaintiff “must allege facts sufficient to ‘nudge [his or her] claims across the line

from conceivable to plausible.’” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Mere “labels and conclusions,

and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at

555. After construing the complaint in the light most favorable to the plaintiff, if the court finds

that the plaintiff could not be entitled to relief, it can dismiss the claim. Fowler, 578 F.3d at 210.

2 Plaintiff characterizes her resignation as a constructive discharge.

DISCUSSION

In its motion to dismiss, Defendant contends that Plaintiff’s complaint fails to state a claim

upon which relief can be granted. Specifically, Defendant argues that: (1) Plaintiff’s claims at

Counts 1, 2, and 4 are barred by Title IX’s statute of limitations; (2) Plaintiff’s claims are all barred

by the First Amendment of the United States Constitution’s ministerial exception; (3) Plaintiff’s

claims all fail because sexual orientation is not a protected class under Title IX; and (4) Plaintiff’s

hostile work environment claim fails because she did not allege facts sufficient to establish such a

claim. This Court will address these arguments in relevant order.

Sexual Orientation as a Protected Class

Plaintiff brings this action under Title IX of the Education Amendments of 1972 (“Title

IX”), which “prohibits discrimination based on sex in all educational programs that receive funds

from the federal government.” Doe v. Boyertown Area Sch. Dist., 897 F.3d 518, 533 (3d Cir.

2018). It is well-settled that Title VII of the Civil Rights Act of 1964 (“Title VII”) precedents are

instructive in Title IX discrimination cases. See id. at 534 (holding and applying Title VII

precedent to a Title IX claim). Though Defendant’s argument on this issue was correct when the

motion was filed, the United States Supreme Court subsequently decided the landmark case,

Bostock v. Clayton Cnty., and held that Title VII prohibits employment discrimination on the basis

of sexual orientation, through its prohibition of discrimination on the basis of “sex.” See,

generally, Bostock, 140 S. Ct. 1731 (2020) (interpreting the scope of Title VII’s discrimination

ban that uses identical language to Title IX’s discrimination ban). Thus, Title IX’s prohibition on

sex discrimination constitutes a prohibition on sexual orientation discrimination. Accordingly,

Defendant’s argument that sexual orientation is not a protected class under Title IX is without

merit. See, e.g., Adams v. Sch. Bd., 968 F.3d 1286, 1304-1305 (11th Cir. 2020) (applying Bostock’s

holding to Title IX case, holding Bostock’s “reasoning applies with the same force to Title IX’s

equally broad prohibition on sex discrimination.”); see also Doe v. Univ. of Scranton, 2020 U.S.

Dist. LEXIS 187526, at *11 n.61 (M.D. Pa. Oct. 9, 2020) (collecting cases where courts applied

Bostock to Title IX sexual orientation discrimination claims).

Applicability of the Ministerial Exception3

Defendant argues that Plaintiff’s claims are all barred by the First Amendment of the

United States Constitution’s ministerial exception. The United States Supreme Court recently

described the ministerial exception as follows:

The First Amendment protects the right of religious institutions to decide for

themselves, free from state interference, matters of church government as well as

those of faith and doctrine. Applying this principle, [the Supreme Court] held in

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171,

132 S. Ct. 694, 181 L. Ed. 2d 650, that the First Amendment barred a court from

entertaining an employment discrimination claim brought by [a] teacher against the

religious school where she taught. [This] decision built on a line of lower court

cases adopting what was dubbed the “ministerial exception” to laws governing the

employment relationship between a religious institution and certain key employees.

Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2055 (2020) (internal quotations

and citations omitted). The Supreme Court concisely defined the ministerial exception, stating:

“Under this rule, courts are bound to stay out of employment disputes involving those holding

certain important positions with churches and other religious institutions.” Id. at 2060. More

specifically, the Supreme Court held: “When a school with a religious mission entrusts a teacher

with the responsibility of educating and forming students in the faith, judicial intervention into

3 Plaintiff argues that the ministerial exception is an affirmative defense and whether or not the

exception applies should not be resolved at the motion to dismiss stage. Pltf. Br., ECF 8, at 10-11. Plaintiff

is mistaken. While the ministerial exception is, indeed, an affirmative defense, the United States Court of

Appeals for the Third Circuit has itself addressed the exception at the motion to dismiss stage, affirming

dismissal on that basis and holding that “the [ministerial] exception does not act as a jurisdictional bar, but

rather, is best viewed as a challenge to the sufficiency of [Plaintiff]’s claim under Rule 12(b)(6)[ and . . .]

is akin to a government official’s defense of qualified immunity, which is often raised in a Rule 12(b)(6)

motion.” Petruska v. Gannon Univ., 462 F.3d 294, 302-03 (3d Cir. 2006).

disputes between the school and the teacher threatens the school’s independence in a way that the

First Amendment does not allow.” Id. at 2069.

Here, Plaintiff does not dispute that she “was, in fact, a minister.” See Plf. Reply Br., ECF

24, at 3. Rather, the parties dispute whether the ministerial exception applies to all of Plaintiff’s

claims. Defendant contends that the exception applies to employment discrimination disputes

between so-defined ministerial employees and their religious institution employers. Plaintiff

disagrees and contends that the exception applies only to employment discrimination claims based

on tangible adverse employment actions, and does not apply to other non-tangible employment

discrimination claims, such as a hostile work environment claim.

Plaintiff urges this Court to follow the non-controlling and since-vacated4 decision in

Demkovich v. St. Andrew the Apostle Par., which held “[t]he right balance is to bar claims by

ministerial employees challenging tangible employment actions but to allow hostile environment

claims that do not challenge tangible employment actions[,]” and further found that Hosanna-

Tabor and Our Lady of Guadalupe did not create a “‘categorical bar’ to a non-tangible sexually

hostile work environment claim.” 973 F.3d 718, 720, 727-731 (7th Cir. 2020). In sum, the basis

for the Demkovich decision was that applying the ministerial exception to non-tangible

employment discrimination claims was not “necessary” under the First Amendment’s Free

Exercise Clause, because “[t]he ministerial exception ensures that religious organizations are able

to ‘select and control’ their ministers without interference from civil law like employment

discrimination statutes . . . [and] that purpose can be accomplished by applying the ministerial

4 As explained in Defendant’s notice to this Court, [ECF 32], the Court of Appeals for the Seventh

Circuit vacated the Demkovich decision on December 9, 2020 and granted defendant-appellant’s petition

for rehearing en banc. Accordingly, the Demkovich decision is not only non-controlling, but now has no

persuasive authority as a binding judgment. Nevertheless, this Court still addresses the parties’ arguments

regarding Demkovich, as Plaintiff still relies on the legal reasoning to present her arguments.

exception to all tangible employment actions[;]” in other words, “giving “[r]eligious employers[]

control over tangible employment actions—hiring, firing, promoting, deciding compensation, job

assignments and the like—provides ample protection for the free exercise of religion.” Id. at 720,

727 (citing Hosanna-Tabor and Our Lady of Guadalupe to summarize the purpose of the

ministerial exception, relying on the language “select and control”).

In the absence of Hosanna-Tabor and Our Lady of Guadalupe, this Court may have been

inclined to consider, as the Demkovich court did, the so-called “right balance” of cases to which

the ministerial exception applies. However, Hosanna-Tabor and Our Lady of Guadalupe closed

the door on the issue of whether tangible employment discrimination claims are within the scope

of the ministerial exception. As the Supreme Court expressly held “the ‘ministerial exception’

[applies] to laws governing the employment relationship between a religious institution and

[ministerial] employees.” Our Lady of Guadalupe Sch., 140 S. Ct. at 2055 (internal quotations

and citations omitted) (emphasis added). Under the ministerial exception, “courts are bound to

stay out of employment disputes involving [ministerial employees].” Id. at 2060 (emphasis added).

Plainly, hostile work environment discrimination claims are employment discrimination claims,

and Title VII and Title IX are federal statutes governing, inter alia, employment relationships.

Consequently, hostile work environment claims, particularly those brought pursuant to Title VII

or Title IX, clearly fall within the scope of cases banned by the ministerial exception. The

distinction made in Demkovich, which Plaintiff implores this Court to make here, is not supported

by Supreme Court precedent. The Supreme Court has not cabined the ministerial exception to

tangible or intangible employment actions, and it is not for this Court to create such an exception

to binding precedent.5

5 Furthermore, application of traditional canons of construction support Defendant’s interpretation

of the Supreme Court’s precedent regarding the applicability of the ministerial exception. Defendant

Plaintiff makes an additional argument that Supreme Court precedent does not foreclose

non-tangible employment discrimination claims and points to language in Our Lady of Guadalupe

that the ministerial exception does not apply to absolutely all employment discrimination claims.

Notably, the Supreme Court clarified that its holdings in Hosanna-Tabor and Our Lady of

Guadalupe “do[] not mean that religious institutions enjoy a general immunity from secular

laws[.]” Our Lady of Guadalupe Sch., 140 S. Ct. at 2060. As Plaintiff points out, Hosanna-Tabor

recognized that the First Amendment’s Religion Clauses “foreclose certain employment

discrimination claims[.]” Id. at 2061 (emphasis added). However, the Supreme Court was not

silent on what types of employment claims may be excluded from application of the ministerial

exception. As the United States Court of Appeals for the Third Circuit (“Third Circuit”)

highlighted in Lee v. Sixth Mt. Zion Baptist Church of Pittsburgh, “Hosanna-Tabor involved a

contends that the exception applies to employment disputes without regard for the tangible or intangible

nature of the claim. The General-Terms Canon dictates that “[w]ithout some indication to the contrary,

general words (like all words, general or not) are to be accorded their full and fair scope [and] are not to be

arbitrarily limited.” Antonin Scalia & Bryan A. Garner, Reading Law 101 (2012). “[T]he presumed point

of using general words is to produce general coverage—not to leave room for courts to recognize ad hoc

exceptions[.]” Id.

Here, Plaintiff asks this Court to “arbitrarily limit” the scope of the words in the phrases “laws

governing the employment relationship” and “employment disputes,” as used by the Supreme Court in

Hosanna-Tabor and Our Lady of Guadalupe, and convert them to mean only (1) laws governing tangible

employment actions in the employment relationship and (2) employment disputes based on tangible

employment actions. This Court declines to do so, as it is clear that the general words refer to their general

meanings and no such exceptions were enumerated. If the Supreme Court intended to establish such

exceptions, it would have done so.

Additionally, the Omitted-Case Canon dictates that “[n]othing is to be added to what the text states

or reasonably implies.” Id. at 93. “Essentially, this means that even though legal texts can sometimes be

incomplete because they fail to address certain situations, courts should not fill in these gaps with rules of

their own.” Katharine Clark et al., The Writing Center at Georgetown University Law Center, A Guide to

Reading, Interpreting and Applying Statutes 4 (2017) (explaining Omitted-Case Canon). Ergo, the simple

fact that the holdings of Hosanna-Tabor and Our Lady of Guadalupe do not specifically address the

hypothetical of a non-tangible employment discrimination claim (like a hostile work environment claim)

does not mean that courts should attempt to create exceptions and caveats on their own. Accordingly, this

Court declines to do such a thing.

statutorily-based employment discrimination suit, and the Supreme Court explicitly declined to

state whether the ministerial exception ‘bars other types of suits, including actions by employees

alleging breach of contract [or tortious conduct] by their religious employers.’” 903 F.3d 113,

119-20 (3d Cir. 2018) (citing Hosanna-Tabor, 565 U. S. at 196). Thus, these are the types of

lawsuits—contract-based and tort-based employment claims—where it remains ambiguous as to

whether and to what extent the ministerial exception may apply;6 the ambiguity is not as broad as

Plaintiff would have this Court believe, encompassing all causes of action other than those

explicitly litigated by the individual parties in Hosanna-Tabor and Our Lady of Guadalupe, thus

leaving room for non-tangible, statutorily-based employment discrimination claims.

It is worth noting that other federal courts have held that the ministerial exception applies

to non-tangible employment discrimination claims, such as hostile work environment claims. See,

e.g., Skrzypczak v. Roman Catholic Diocese of Tulsa, 611 F.3d 1238 (10th Cir. 2010) (holding any

Title VII claim, including hostile work environment, would implicate church’s spiritual functions

and, thus, courts cannot decide such claims without improperly interfering with churches’

protected rights); Preece v. Covenant Presbyterian Church, 2015 U.S. Dist. LEXIS 52751, at *17-

19 (D. Neb. April 22, 2015) (finding ministerial employee’s sexual harassment claim barred by

ministerial exception; holding “[t]he type of claim is irrelevant because any Title VII action

brought against a church by one of its ministers will improperly interfere with the church’s right

to select and direct its ministers free from state interference” (internal quotations and citations

omitted)) (collecting cases holding the same); Ogugua v. Archdiocese of Omaha, 2008 U.S. Dist.

6 Though not relevant here, this Court notes that the Third Circuit has spoken regarding contract-

based employment claims and held that the ministerial exception applies to contract-based lawsuits only to

the extent that any such claims are excessively, substantively tangled with religion. “Thus, a court may

resolve only [contract] disputes that turn on a question devoid of doctrinal implications and employ neutral

principles of law to adjudicate.” Lee, 903 F.3d 113 at 120 (internal quotations and citations omitted).

LEXIS 85317, at *14 (D. Neb. Oct. 22, 2008) (finding ministerial employee’s sexual harassment

claim barred by ministerial exception because claim was factually entwined with adverse

employment actions, which the court could not review without excessive government

entanglement with religion in violation of the First Amendment) (“This Court recognizes that

religious employers . . . are free to discriminate on the basis of race, color, religion, sex , national

origin, age, physical disability, and any other basis, with respect to the terms and conditions of

employment of spiritual employees performing spiritual duties. A court cannot interfere in such

decisions without becoming entangled in matters of religion in violation of the First Amendment’s

Establishment Clause.”). This Court finds these decisions persuasive.

In conclusion, this Court finds that the ministerial exception bars all of Plaintiff’s

employment discrimination claims. Therefore, this Court need not address Defendant’s remaining

arguments regarding the statute of limitations and sufficiency of Plaintiff’s fact pleading.

CONCLUSION

For the reasons set forth herein, Defendant’s motion to dismiss is granted, and all of

Plaintiff’s claims against Defendant are dismissed. An Order consistent with this Memorandum

Opinion follows.

NITZA I. QUIÑONES ALEJANDRO, U.S.D.C. J.