Justia.com Opinion Summary: Respondent and Cross Petitioner (Respondent), a former church employee, filed a sixteen-count civil action against Petitioners and Cross Respondents (Petitioners), including a church and a bishop, claiming that she was the victim of sexual harassment and employment discrimination. The circuit court granted Petitioners' motion to exclude all evidence of Respondent's job performance, citing the First Amendment's ministerial exception. After dismissing certain counts on the ground that they were barred by the statute of limitations, the court granted summary judgment to Petitioners. The court of special appeals reversed in part and remanded, concluding that Respondent was entitled to a new trial on four of her claims, which the court found were timely filed under the continuing violation doctrine. The Supreme Court granted writ of certiorari and affirmed in part and vacated in part, holding (1) Respondent's claims of hostile work environment and gender discrimination were not barred by the statute of limitations or the ministerial exception; and (2) the remainder of Respondent's claims at issue would necessarily involve judicial inquiry into church governance, and such an inquiry was prohibited by the First Amendment. Remanded.
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HEADNOTE: Prince of Peace v Linklater, No. 66 September Term 2009
CIVIL PROCEDURE; STATUTE OF LIMITATIONS; “CONTINUING VIOLATION
DOCTRINE” EXCEPTION: The continuing violation doctrine is applicable to a
Complaint that alleges (1) sexual harassment occurred more than two years before the alleged
victim filed his or her Complaint, and (2) retaliatory action taken against the alleged victim
that occurred within the period of limitations.
CONSTITUTIONAL LAW; APPLICATION OF THE “MINISTERIAL
EXCEPTION” TO SEXUAL HARASSMENT CLAIMS: The ministerial exception does
not bar every claim of sexual harassment asserted against church officials by a former
ministerial employee.
IN THE COURT OF APPEALS
OF MARYLAND
No. 66
September Term, 2009
PRINCE OF PEACE
LUTHERAN CHURCH, et al.
v.
MARY LINKLATER
Bell, C.J.
Harrell
Battaglia
Greene
Murphy
Adkins
Barbera,
JJ.
Opinion by Murphy, J.
Bell, C.J., Battaglia and Adkins, JJ.,
concur and dissent.
Filed: September 21, 2011
In the case at bar, this Court granted both a petition and cross-petition for a writ of
certiorari to address two issues of public importance: (1) the extent to which the First
Amendment’s “ministerial exception” is applicable to a sixteen count civil action asserted
against a church by a former employee who claims that she was the victim of sexual
harassment and employment discrimination; and (2) whether the former employee’s
“hostile work environment” claim was timely filed under the “continuing violation
doctrine” exception to the applicable statute of limitations. 409 Md. 47, 972 A.2d 861
(2009). Before addressing these issues, however, it is necessary that we clear away a
good deal of flotsam and jetsam produced by the two hundred seventy-five paragraph,1
fifty-one page Complaint in which the former employee asserted her sixteen claims.
At this point in these needlessly complicated proceedings, there are four
Petitioners/Cross Respondents (“Petitioners”): (1) Prince of Peace Lutheran Church ("the
Church"), (2) Rufus S. Lusk, III ("Lusk"), (3) the Metropolitan Washington D.C. Synod
of the Evangelical Lutheran Church in America ("the Synod"), and (4) Bishop Theodore
1
Maryland Rule 2-303(a), in pertinent part, provides that a pleading “shall not
include argument, unnecessary recital of law, evidence, or documents, or any immaterial,
impertinent, or scandalous matter.” The numerous violations of this rule that can be
found throughout Respondent’s Complaint begin with the first sentence of the first
paragraph, which states: “This case chronicles the unsuccessful survival efforts of a
talented, dedicated and outstanding musician and Music Director, who after four years of
devoted and stellar performance, was maliciously and vindictively driven out of her job
and a large part of her life, for no greater offense than rejecting the long-running
harassment and sexual overtures of her superiors: the church pastor and the President of
the Church Council.” Our review of this Complaint prompts us to remind the bench and
bar that Maryland Rule 2-322(e), in pertinent part, provides that “on the court’s own
initiative at any time, the court may order... any pleading that is late or otherwise not in
compliance with [the Maryland Rules of Procedure] stricken in its entirety.”
Schneider ("Schneider"). Having ultimately prevailed in the Circuit Court for
Montgomery County, they argue that the Court of Special Appeals has erroneously
concluded that Respondent/Cross Petitioner, Mary Linklater (Respondent) is entitled to a
new trial on four of the claims asserted in her Complaint.2 Respondent, who was awarded
compensatory and punitive damages by a jury, argues that the Court of Special Appeals
has erroneously concluded that she is not entitled to the entry of a judgment that conforms
to that verdict.3 For the reasons that follow, we hold that (1) the ministerial exception
2
Petitioners have requested that this Court answer four questions:
1. Whether the ministerial exception is limited to matters that
would require a court to decide an issue of religious scripture or
dogma or whether it applies more broadly to matters of church
governance, such as a pastor's report to a church congregation
during a church annual meeting?
2. Whether the continuing violation principle applies to claims
under Art. 49B §42, and if so, whether merely alleging a
discrete and separate of retaliation can save otherwise different,
untimely sexual harassment claims?
3. Whether individuals can be personally liable as an employer
under the Montgomery County Code?
4. Whether Md. Code Ann. Art. 49B §42 violates equal
protection by allowing Montgomery County to create claims and
liabilities for employees and employers in Montgomery County
that do not exist in Maryland's other jurisdictions?
3
Respondent has requested that we answer six questions:
1) Does the ministerial exception bar claims for negligent
retention and supervision or evidence of other permitted claims,
including sexual harassment, retaliation, and hostile work
2
does not apply to two of the claims that Respondent has asserted, and (2) the “continuing
violation doctrine” is applicable to those claims.
Background
As the issues before us involve questions of law rather than questions of fact, there
is no need to set forth each and every item of conflicting evidence in the record of this
environment when the claims are unrelated to any employment
decision, religious doctrine, or religiously motivated conduct?
2) Whether the continuing violation doctrine applies to claims
under Art. 49B § 42 when conduct contributing to a hostile work
environment falls within the limitations period?
3) Can sexual harassment and retaliation by a pastor toward a
subordinate employee, including a year-long campaign to
demoralize, humiliate, discredit, and ostracize that employee and
drive her from the church, while knowing of her emotional
fragility, satisfy the "extreme and outrageous" element of a
claim for intentional infliction of emotional distress (IIED)?
4) Whether a jury verdict can be set aside and a new trial
ordered based upon a finding that evidence financial means
admitted in a non-bifurcated trial constituted procedural error
given that (a) trial bifurcation is not mandatory; (b) there was no
prejudice to the defendants; and (c) the evidence was admitted
without objection?
5) Whether the Montgomery County Code's use of "person",
expressly defined to include "an individual," applies to
individuals?
6) Whether Md. Code Ann. Art 49B§ 42 violates equal
protection when the Maryland legislature acted reasonably to
enact a statute buttressing county anti-discrimination laws and
when territorial uniformity is not a constitutional requirement?
3
“she said, they said” case.4 Suffice it to say that the evidence was sufficient to establish
that Respondent (1) was the victim of sexual harassment, (2) complained about the
harassment, and (3) was the victim of additional harassment and retaliation as a result of
her complaints.
On October 16, 2002, Respondent filed a Complaint against the Petitioners in
which she asserted the following causes of action:
COUNT I
Sexual Harassment and Hostile Work Environment
Against all Defendants
***
COUNT II
Quid Pro Quo Sexual Harassment
4
The record includes a “JOINT PRE-TRIAL STATEMENT” that contains the
following information:
I.
Nature of the Case
In this case, plaintiff, Mary Linklater, the former Music
Director of defendant, Prince of Peace Lutheran Church, claims
that she was the victim of intentional infliction of emotional
distress; invasion of privacy and false light; and injurious
falsehood.
Defendants Prince of Peace Lutheran Church (“Prince of
Peace”) and Pastor Rufus S. Lusk III (“Pastor Lusk”) vehemently
deny Ms. Linklater’s claims. Specifically, defendants contend
that Ms. Linklater’s claims are prohibited by the First
Amendment of the United States Constitution and the doctrine of
charitable immunity. Defendants further maintain that there is
absolutely no evidence of any actionable false statements nor
intentional infliction of emotional distress. As a result, they
dispute all allegations of liability and damages.
4
Against all Defendants
***
COUNT III
Gender Discrimination
Against all Defendants
***
Count IV
Retaliatory Harassment and Constructive Discharge
Against All Defendants
***
Count V
Intentional Infliction of Emotional Distress
Against All Defendants
***
Count VI
Invasion of Privacy and False Light
Against all Defendants
***
Count VII
Fraud
Against All Defendants
***
Count VIII
Injurious Falsehood
Against Defendants Lusk, Schneider and D.C. Metropolitan Synod
***
Count IX
Tortious Interference With Business Relations
Against Defendants Lusk, Schneider, and D.C. Metropolitan Synod
***
Count X
Negligent Retention and Supervision
Against Defendants Prince of Peace and D.C. Metropolitan Synod
***
Count XI
Respondeat Superior
Against All Defendants Prince of Peace and D.C. Metropolitan Synod.
***
Count XII
Conspiracy
Against All Defendants
5
***
Count XIII
Aiding and Abetting
Against All Defendants
***
Count XIV
Breach of Contract
Against Defendants Schneider and the D.C. Metropolitan Synod
***
Count XV
Breach of Implied Contract
Against Defendant Prince of Peace
***
Count [XVI]
Breach of Fiduciary Duty
Against Defendant Schneider
Respondent’s Complaint included the following assertions:
160. On March 4, 2001, [Respondent] found a defaced
picture of herself that had been horribly stabbed numerous
times, stuck to a bulletin board on the wall of the church next
to the music room where [Respondent] worked. [Respondent]
was extremely distraught by this hateful act, and immediately
fled the church.
161. Over the course of the next three days,
[Respondent] suffered from disabling emotional and
psychological distress. . . . [Respondent] continuously
agonized over her circumstances, and the defaced photo,
which symbolized a great hatred of her that was felt by others
– others who had previously been her friends and supporters. .
..
162. By March 7, 2001, [Respondent] concluded that
the environment at Prince of Peace had become so hostile and
hateful and intimidating that, emotionally and
psychologically, she simply could no longer bring herself to
come in to work, unless there was a dramatic and fundamental
improvement in the work environment. . . .
6
Respondent’s Complaint included the following Prayer for Relief:
WHEREFORE, [Respondent] respectfully requests that this
Court enter judgment:
A. declaring that the acts complained of herein are in violation
of the laws of the State of Maryland and Montgomery County
Code § 27-19;
B. directing Defendants to make [Respondent] whole for all
earnings and other job benefits she would have received but for
Defendants’ unlawful conduct, including but not limited to,
wages, retirement benefits, bonuses, and other lost benefits, plus
pre-judgment and post-judgment interest;
C. directing Defendants to pay [Respondent] compensatory
damages, including damages for her mental anguish and
psychological treatment in an amount appropriate to the proof
at trial;
D. awarding [Respondent] punitive damages in an amount
appropriate to the proof at trial;
E. awarding [Respondent] the costs of this action, including
reasonable attorneys’ fees; and
F. granting such other and further relief as this Court Deems
necessary and proper.
The first Circuit Court ruling of consequence occurred on March 10, 2003, when
the pretrial motions hearing court resolved Petitioners’ motions to dismiss in an on-therecord proceeding during which it stated:
In deciding the motion to dismiss as to the first
amendment issues that have been raised, I decided that what I
needed to do was look at the allegations in each count of the
complaint and determine on a claim-by-claim basis whether
or not the issues raised constituted - - and I’m quoting from
which case is this, McKelvey v. Pierce[, 173 N.J. 26, 800
7
A.2d 840 (2002),] which, although none of these cases are
technically binding, I felt that this language was instructive as
to the analysis the Court needed to conduct. And that was
requiring an assessment of every issue raised in terms of
doctrinal and administrative intrusion and entanglement. I
thought that was a pretty good description for the process we
were required to go through.
The Court is going to grant the motion to dismiss as to
Counts 4, 9, 10, 12, 13, 14, 15, 16 and denying the motion to
dismiss as to the remaining counts. I did also consider
separately the statute of limitations arguments that have been
raised with respect to the remaining counts and do not find
that they are barred by the statute of limitations, at least for
motions to dismiss purposes. So the counts remaining are 1, 2,
3, 5, 6, 7, 8, 11.
The second Circuit Court ruling of consequence occurred on January 19, 2005,
when the trial court filed a Memorandum Opinion and Order that included the following
findings and conclusions:
The issues presented [by the Petitioners in their Motions for
Summary Judgment] were: (1) Whether the ecclesiastical
exception bars Ms. Linklater’s causes of actions against all of
the Defendants; (2) Whether the Statute of Limitations has
already run for Ms. Linklater’s Montgomery County Code
causes of actions (Counts I-III); and (3) Whether Ms.
Linklater has presented enough evidence to establish a claim
on any of the counts?
***
A. The Ecclesiastical Exception
1) Bishop Schneider and the Synod
This Court finds that the ministerial exception bars Ms.
Linklater’s claims as they apply to the Defendants Bishop
Schneider and Synod. Bishop Schneider became involved in
8
this litigation matter only to help resolve ongoing conflicts in
the Prince of Peace church between Pastor Lusk, Neil
Howard, and Ms. Linklater. The Bishop and the Synod were
not Ms. Linklater’s employers and were never accused of
sexually harassing her. Rather the Bishop worked with Ms.
Linklater, Pastor Lusk, and Howard only to mend the rifts that
had developed in Prince of Peace. Once Ms. Linklater elected
to file a formal complaint with the Montgomery County
Human Relations Commission, the Bishop was no longer
involved in the matter. The Bishop was merely acting in his
role as Bishop, and therefore this Court finds that the First
Amendment prohibits Ms. Linklater from pursuing any of her
claims against Bishop Schneider or the Metropolitan
Washington, D.C. Synod of the Evangelical Lutheran Church
in America.
2) Pastor Lusk and Prince of Peace
***
In the case at bar, Ms. Linklater’s claims derive from
the alleged sexual harassment by [a fellow employee] and
Pastor Lusk and the alleged statements that publicly
discredited her. She is not challenging any employment
decisions regarding her termination in March 2001. Numerous
courts have recognized that tort claims based on harassment
are not barred by the First Amendment.... In as much as Ms.
Linklater’s claims do not implicate any employment decisions
or religious beliefs of Prince of Peace, the First Amendment’s
ecclesiastical exception will not bar her causes of action as
they relate to Pastor Lusk and Prince of Peace.
B. Statute of Limitations
Counts I-III of Ms. Linklater's suit pertains to the
Montgomery County Code and therefore are subject to the
statute of limitations enunciated in the Maryland Code
pertaining to discriminatory acts in violation of the
Montgomery County Code. Pursuant to MD. CODE ANN.
ART. 49B §42 (1997), "[a]n action… of this section shall be
commenced in the circuit court for the county in which the
9
alleged discrimination took place not later than two years
after the occurrence of the alleged discriminatory act."
Ms. Linklater filed suit on October 16, 2002. If the
causes of action occurred before October 16, 2000, Ms.
Linklater's claims are untenable. [The fellow employee’s]
inappropriate conduct could not have continued after he
resigned on July 15, 2000. According to Ms. Linklater's
deposition Pastor Lusk's alleged sexual harassment ended on
March 18, 2000. Thus, the statute of limitations has already
run as it pertains to [the fellow employee] and Pastor Lusk.
Additionally, Ms. Linklater made her claims against
[the fellow employee] and Lusk public on July 19, 2000. All
of the actions taken by Pastor Lusk and the church which
occurred after July 19, 2000 implicate the ministerial
exception discussed above because they are not relevant to the
harassment and abusive treatment alleged by Ms. Linklater,
but rather with an employment decision of the church. A close
reading of National Railroad Passenger Corp. v. Morgan,
536 U.S. 101 [122 S.Ct. 2061] (2002), indicates that hostile
work environment claims primarily focused on acts which
occur beyond the statute of limitations can be filed as long as
at least one event occurred within the statute of limitations
period. This court finds Morgan has no bearing on the case at
bar because any actions which occurred after October 16,
2000 were effectively barred by the ministerial exception.
Therefore, since there is only a two year statute of
limitations for Counts I-III and the basis for the causes of
action occurred before October 16, 2000 these counts will be
dismissed.
***
IV. Conclusion
In light of the findings of this Court, the Defendants,
Bishop Theodore Schneider, and the Metropolitan
Washington, DC Synod of the Evangelical Lutheran Church
in America’s Motion for Summary Judgment is granted.
10
The Defendants Prince of Peace Lutheran Church and
Pastor Rufus Lusk’s, Motion for Summary Judgment is
granted in part reversed in part. Count I, Sexual Harassment
and Hostile Work Environment in violation of the
Montgomery County Code; Count II, Quid Pro Quo Sexual
Harassment, in violation of the Montgomery County Code;
Count III Gender Discrimination in violation of the
Montgomery County Code; Count VII, Fraud; and Count XI,
Respondeat Superior have all been dismissed for the reasons
stated above. As the motion pertains to Count V, Intentional
Infliction of Emotional Distress; Count VI, Invasion of
Privacy and False Light; Count VIII, Injurious Falsehood, this
Court denies the Motion for Summary Judgment.
Prior to trial, Lusk and the Church filed a motion in limine to exclude any evidence
of Lusk's net worth, but the Circuit Court made no pretrial ruling on that issue. At trial,
Respondent introduced into evidence a financial statement that listed the income and
marital property of both Lusk and his wife. The trial court entered a judgment in favor of
Petitioners on Respondent’s injurious falsehood claim, so only Count V (the IIED claim),
and Count VI (the invasion of privacy and false light claim) were submitted to the jury.
The jury returned its verdicts on a “special” VERDICT SHEET that includes the
following questions and answers:
1. Do you find, by a preponderance of the evidence, that the
Plaintiff, Mary Linklater, suffered Intentional Infliction of
Emotional Distress by the Defendant, Prince of Peace
Lutheran Church?
Yes
X
No________
If “yes” proceed to question No. 2; if “no” proceed to
Question No. 6.
2. Do you find, by a preponderance of the evidence, that
11
compensatory damages should be awarded on this claim of
Intentional Infliction of Emotional Distress?
Yes
X
No________
If “yes” proceed to question No. 3; if “no” proceed to
Question No. 4.
3. In what amount should compensatory damages be awarded
for the claim of Intentional Infliction of Emotional Distress?
$50,000.00
4. Do you find, by clear and convincing evidence that punitive
damages should be awarded on this claim of Intentional
Infliction of Emotional Distress?
Yes
No
X
If “yes” proceed to question No. 5; if “no” proceed to
Question No. 6.
***
6. Do you find, by a preponderance of the evidence, that the
Plaintiff, Mary Linklater, suffered Intentional Infliction of
Emotional Distress by the Defendant, Rufus Lusk?
Yes
X
No.
If “yes” proceed to question No. 7; if “no” proceed to
Question No. 11.
7. Do you find, by a preponderance of the evidence, that
compensatory damages should be awarded on this claim of
Intentional Infliction of Emotional Distress?
Yes
X
No.
If “yes” proceed to question No. 8; if “no” proceed to
Question No. 9.
12
8. In what amount should compensatory damages be awarded
for the claim of Intentional Infliction of Emotional Distress?
(Note: Do not award any damages that may already have been
awarded in Question No. 3 if you have answered Question
No. 3.)
$300,000.00
9. Do you find, by a clear and convincing evidence that
punitive damages should be awarded on this claim of
Intentional Infliction of Emotional Distress?
Yes
X
No.
If “yes” proceed to question No. 10; if “no” proceed to
Question No. 11.
10. In what amount should punitive damages against Rufus
Lusk be awarded for the claim of Intentional Infliction of
Emotional Distress?
$1,000,000.00
11. Do you find, by a preponderance of the evidence, that the
Plaintiff, Mary Linklater, suffered False Light, Invasion of
Privacy by the Defendant, Prince of Peace Lutheran Church?
Yes
No.
X
If “yes” proceed to question No. 12; if “no” proceed to
Question No. 16.
***
16. Do you find by a preponderance of the evidence, that the
Plaintiff, Mary Linklater, suffered False Light, Invasion of
Privacy by the Defendant, Rufus Lusk?
Yes
No.
13
X
If “yes” proceed to question No. 17; if “no” your
deliberations are concluded.
Numerous post-trial motions were filed by all parties. At the first post-trial
motions hearing, the trial court concluded that it had made a "fatal error" by admitting the
joint financial statement before the jury had made a finding that would entitle Respondent
to argue for an award of punitive damages.5 Ultimately, after the trial court recused itself
on its own motion, another member of the Circuit Court granted the Church and Lusk a
new trial on the IIED count.
The final Circuit Court rulings of consequence were made by a fourth member of
the court, who (1) citing the ministerial exception, granted the Church’s motion in limine
to exclude all evidence of Respondent’s job performance, and (2) thereafter granted
renewed motions for summary judgment made by the Church and Lusk. Respondent
noted an appeal to the Court of Special Appeals, and filed a brief that did not include
argument that the Circuit Court erred in entering judgments on Counts VI, VII, and VIII.
In the “CONCLUSION” section of her brief, Respondent requested that the Court
of Special Appeals provide the following relief:
1. The ruling . . . granting [a] Motion for new trial on Count 5,
and the jury verdict in Linklater’s favor reinstated.
2. The ruling . . . granting Appellees’ Motions to dismiss with
5
Md. Code (1973, 2006 Repl.Vol.), Courts and Judicial Proceedings ("CJP") §
10-913(a) provides: Evidence of defendant's financial means. -- In any action for punitive
damages for personal injury, evidence of the defendant's financial means is not admissible
until there has been a finding of liability and that punitive damages are supportable under
the facts.
14
respect to Counts 4, 9, 10, 12, 13, 14, 15 and 16, and the case
remanded for further proceedings against Appellees on those
claims;
3. The rulings . . . granting . . . Summary Judgment [in favor
of the Church and Lusk] on Counts 1, 2, and 3, the Synod
Appellees’ Motion for Summary Judgment on Counts 1, 2, 3,
and 5, and . . . Summary Judgment [in favor of the Church
and the Synod] on Count 11, and the case remanded for trial
on the those claims; and
4. In the event the Court does not reverse the grant of a new
trial on the IIED claim and reinstate the jury verdict in
Linklater’s favor, the rulings. . . granting the . . . Motions In
Limine excluding evidence related to Linklater’s job
performance and church governance and granting the . . .
renewed oral Motion[s] for Summary Judgment, and the IIED
claim reinstated and remanded for trial against the . . .
Appellees.
In an unreported opinion, the Court of Special Appeals held that (1) the IIED claim
asserted in Count V “fails, as a matter of law, to meet the high threshold required for
liability,” (2) that Respondent “alleged at least one instance of retaliatory conduct that fell
within the statute of limitations, so her claims [in Counts I and III] are not time-barred,
because they are saved by the continuing violation rule,” and (3) “[b]ecause Schneider
and the Synod are not ‘employers’ under the Montgomery County Code, ... the hostile
work environment and gender discrimination counts [Counts I and III] cannot be brought
against them.” On the basis of these holdings, the Court of Special Appeals ordered a
“remand [of] this case for further proceedings on Counts I, III and IV against Lusk,
Counts I, III, IV and XV against the church, and Counts IV and XIV (Breach of Contract)
against Schneider and the Synod.” Thus, if we affirm the judgment of the Court of
15
Special Appeals in its entirety, the case at bar will be remanded for further proceedings on
the following Counts against the following Petitioners:
COUNT I
Sexual Harassment and Hostile Work Environment
Against Lusk and the Church
***
COUNT III
Gender Discrimination
Against Lusk and the Church
***
Count IV
Retaliatory Harassment and Constructive Discharge
Against Lusk, the Church, Schneider and the Synod
***
Count XIV
Breach of Contract
Against Defendants Schneider and the Synod
***
Count XV
Breach of Implied Contract
Against the Church
The brief that Respondent filed in this Court did not include argument that the
Court of Special Appeals erred in affirming the judgments entered by the Circuit Court on
Counts VI, VII, VIII, IX, XI, XII, XIII and XVI. She has therefore waived any claim that
the judgments entered on those counts should be reversed.6 In the “CONCLUSION”
section of her brief, Respondent requests that this Court provide the following relief:
6
“Maryland Rule 5-804(a)(5) requires a party to present ‘argument in support of
the party’s position.’” Chesek v. Jones, 406 Md. 446, 456 n.7, 959 A.2d 795, 801 n.7
(2008). Failure to comply with this rule constitutes a waiver or abandonment of the issue
not argued. Health Serv. Cost Rev. v. Lutheran Hosp., 298 Md. 651, 664, 472 A.2d 55,
61 (1984).
16
For the foregoing reasons, the decision of the CSA
should be reversed in part and affirmed in part. Specifically,
this Court should direct that the jury verdict in favor of
[Respondent] on the IIED claim should be reinstated, and her
remaining claims which were dismissed based on the ministerial
exception should be reinstated and remanded for trial.
Petitioners request that we direct that all of the judgments in their favor be
affirmed. We must therefore determine the issue of whether the claims asserted in Counts
I, II, III, and IV were timely filed under the “continuing violation doctrine,” and the
extent to which the ministerial exception is applicable to the claims asserted in Counts I,
II, III, IV, V, X, XIV, and XV of Respondent’s complaints.
DISCUSSION
On the date that Respondent filed her Complaint, M.C.C. §27-19, in pertinent part,
provided:
Sec. 27-19. Unlawful Employment Practices.
(a) It shall be an unlawful employment practice to
do any of the following acts because of the race, color, religious
creed, ancestry, national origin, age, sex, marital status,
handicap, or sexual orientation of any individual or because of
any reason that would not have been asserted but for the race,
color, religious creed, ancestry, national origin, age sex, marital
status, handicap, or sexual orientation of the individual:
(1) For an employer:
a) to fail or refuse to hire or fail to accept the
services of or to discharge any individual or otherwise to
discriminate against any individual with respect to
compensation, terms, or conditions, or privileges of employment
b) to limit, segregate or classify employees in any
way which would deprive or tend to affect adversely any
individual's employment opportunities or status as an employee.
17
***
(b) It shall be a violation of this division for any person
to cause or coerce or attempt to cause or coerce, directly or
indirectly, retaliate against any person because such person
has lawfully opposed any act or failure to act that is a
violation of this division or has, in good faith, filed a
complaint, testified, participated, or assisted in any way in any
proceeding or investigation under this division or to prevent
any person from complying with this division.
Md. Code (1957, 2003 Repl. Vol.), Art. 49B § 42(a),7 in pertinent part, provides:
7
Before this statute was enacted, Maryland law did not provide a private cause of
action for employment discrimination claims. In Wash. Suburban Sanitary Comm'n v.
Phillips, 413 Md. 606, 994 A.2d 411 (2010), this Court provided the following legislative
history:
§ 42(a) had its genesis in a Montgomery County ordinance,
namely, Montgomery County Code ("MCC") § 27-20(a), 12
which authorized a private civil cause of action against
individuals for employment discrimination occurring within
the County. In McCrory Corp. v. Fowler, 319 Md. 12, 570
A.2d 834 (1990), we considered whether Montgomery
County's enactment of MCC § 27-20(a) exceeded the
authority delegated to the County by the Charter Counties'
Express Powers Act. McCrory, 319 Md. at 13, 570 A.2d at
834.
We found that Montgomery County lacked the authority
under the Express Powers Act to enact MCC § 27-20(a)
because the provision of a private civil cause of action against
individuals for employment discrimination in the County did
not qualify as a "local law." Id. at 14, 570 A.2d at 834-35.
Specifically, we noted that employment discrimination was "a
matter of statewide concern" and that the General Assembly
had not granted Montgomery County the power to enact MCC
§ 27-20(a). Id. at 20, 570 A.2d at 838. In addition, we
observed that the creation of new causes of action in the
courts has been accomplished traditionally on a statewide
basis either by the General Assembly or by the Court of
18
In Montgomery County… a person who is subjected to
an act of discrimination prohibited by the county code may
bring and maintain a civil action against the person who
committed the alleged discriminatory act for damages,
injunctive relief, or other civil relief.
On October 16, 2002, Art. 49(B), §42(b) provided:
§42(b) Limitations periods- (1) An action under subsection (a)
of this section shall be commenced in the circuit court for the
county in which the alleged discrimination took place not later
than two years after the alleged discriminatory act. (emphasis
added).
I. The Ministerial Exception and Sexual Harassment
The “ministerial exception” is rooted in both the "Free exercise" and
"Establishment" clauses of the First Amendment to the United States Constitution.8 The
Appeals. Id.
In 1992, responding to our holding in McCrory, the General
Assembly passed House Bill 722, which created the original
version of § 42(a), thereby authorizing explicitly private civil
actions for violations of the anti-discrimination provisions of
the Montgomery County Code.
Id. at 627-629, 994 A.2d at 423-425 (footnotes omitted).
8
The First Amendment, in pertinent part, provides:
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof[.]
The First Amendment applies to the states by virtue of the Fourteenth Amendment
to the United States Constitution. Employment Div., Dep't of Human Resources of Oregon
v. Smith, 494 U.S. 872, 876-877, 110 S. Ct. 1595, 1599 (1990) (citing Cantwell v.
Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900, 903, (1940)).
19
Free Exercise Clause prohibits governmental action that "encroaches upon the ability of a
church to manage its internal affairs." EEOC v Catholic Univ. of Am., 83 F.3d 455, 460
(D.C. Cir. 1996) (citing Kedroff v. St. Nicholas Cathedral of the Russian Orthodox
Church in N. Am., 344 U.S. 94, 116, 73. S.Ct. 143, 154-155 (1952) (explaining that the
free exercise clause protects the power of religious organizations "to decide for
themselves, free from state interference, matters of church government as well as those of
faith and doctrine”). The Establishment Clause prohibits “excessive entanglement”
between government and religion.9 In Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105
(1971), the United States Supreme Court established the following three part test to
determine whether the ministerial exception is applicable to a particular statute:
First, the statute must have a secular legislative purpose,
second its principal or primary effect must be one that neither
advances or inhibits religion, finally the statute must not
foster an excessive government entanglement with religion.
Id. at 612-13, 91 S. Ct. at 2111 (internal citations omitted). M.C.C. §27-19, like its
federal counterpart, Title VII of the Civil Rights Act of 1964 (Title VII) [(42 U.S.C.
§ 2000e et seq.) has an obvious secular purpose, and neither advances nor inhibits
religion.
9
The "excessive entanglement" can be substantive when, for example, "a church's
freedom to choose its minister's is at stake" Bollard v. California Province of the Soc'y of
Jesus, 196 F.3d 940, 948-949, or it can be procedural when it results "from a protracted
legal proceeding pitting the church and state as adversaries," Rayburn v. General
Conference of Seventh-Day Adventists, 772 F.2d 1164, 1171 (4th Cir.1985).
20
Petitioners argue that (in the words of their brief) "the ministerial exception applies
not just to matters of religious scriptures or dogma but also more broadly to matters of
church governance." Although some federal appellate courts have applied the ministerial
exception broadly,10 we agree with the following analysis by the United States Court of
Appeals for the Ninth Circuit:
Insofar as race, sex, and national origin are concerned,
the text of Title VII treats an employment dispute between a
minister and his or her church like any other employment
dispute. The statute does provide two exemptions from its
non-discrimination mandate for religious groups. One permits
a religious entity to restrict employment "connected with the
carrying on . . . of its activities" to members of its own faith, 42
U.S.C. § 2000e-1(a); the other permits parochial schools to do
the same, id. § 2000e-2(e). But neither of these statutory
exceptions removes race, sex, or national origin as an
impermissible basis of discrimination against employees of
religious institutions. Nor do they single out ministerial
employees for lesser protections than those enjoyed by other
church employees.
Bollard v. California Province of the Soc'y of Jesus, 196 F.3d 940, 945 (9th Cir.1999).
In Sanders v. Casa View Baptist Church, 134 F.3d 331 (5th Cir.1998), the United
States Court of Appeals for the Fifth Circuit stated:
The First Amendment does not categorically
insulate religious relationships from judicial
scrutiny, for to do so would necessarily extend
constitutional protection to the secular
10
See e.g, Alicea-Hernandez v. Catholic Bishop of Chicago, 320 F.3d 698 (7th Cir.
2003) ("the ministerial exception applies without regard to the type of claims being
brought); EEOC v. Roman Catholic Diocese, 213 F.3d 795, 801 (4th Cir. 2000) ("the
exception precludes any inquiry whatsoever into the reasons behind a church's ministerial
employment decision").
21
components of these relationships. . . [T]he
constitutional guarantee of religious freedom
cannot be construed to protect secular beliefs and
behavior, even when they comprise part of an
otherwise religious relationship. . . . To hold
otherwise would impermissibly place a religious
leader in a preferred position in our society.
Id. at 335-36.
Sanders was cited with approval by the Supreme Court of New Jersey in McKelvey
v. Pierce, 173 N.J. 26, 800 A.2d 840 (2002). While reversing the dismissal of sexual
harassment claims asserted by a former seminarian, the McKelvey Court stated:
Even when [a] dispute arises from activity that occurred
in a religious setting, such as a relationship between a church
and a ministerial-type plaintiff, to sweep away all of a minister's
or seminarian's claims against the church out of fear of
encroaching upon the First Amendment not only neglects, but
actually may intrude upon, the two overarching purposes for
which the Religion Clauses stand: (1) preventing "sponsorship,
financial support, and active involvement of the sovereign in
religious activity," Walz v. Tax Comm'n, 397 U.S. 664, 668, 90
S. Ct. 1409, 1411, 25 L. Ed. 2d 697, 701 (1970); and (2)
promoting the freedom of an individual "to believe and profess
whatever religious doctrine [he or she] desires," Employment
Div. v. Smith, 494 U.S. 872, 877, 110 S. Ct. 1595, 1599, 108 L.
Ed. 2d 876, 884 (1990), and of churches "to decide for
themselves, free from state interference, matters of church
government as well as those of faith and doctrine." Kedroff v. St.
Nicholas Cathedral of the Russian Orthodox Church in N. Am.,
344 U.S. 94, 116, 73 S. Ct. 143, 154-55, 97 L. Ed. 120, 136
(1952).
***
Declining to impose neutral and otherwise applicable tort
or contract obligations on religious institutions and ministers
may actually support the establishment of religion, because to
22
do so effectively creates an exception for, and may thereby help
promote, religion. Fenton, supra, 8 Mich. J. Gender & L. at 75;
see also Jones v. Trane, 153 Misc. 2d 822, 591 N.Y.S.2d 927,
932 (N.Y.Sup.Ct.1992) ("[A] contrary holding--that a religious
body must be held free from any responsibility for wholly
predictable and foreseeable injurious consequences of personnel
decisions, although such decisions incorporate no theological or
dogmatic tenets--would go beyond First Amendment protection
and cloak such bodies with an exclusive immunity greater than
that required for the preservation of the principles
constitutionally safeguarded."); Shawna Meyer Eikenberry,
Note, Thou Shalt Not Sue the Church: Denying Court Access to
Ministerial Employees, 74 Ind. L. J. 269, 284 (1998) ("[L]ower
courts . . . have blindly applied the Lemon test, concentrating
exclusively on the third prong, excessive entanglement, without
considering the fact that an exemption [from neutral laws] may
have the [effect] of advancing religion. . . . [B]y allowing
religious organizations immunity from discrimination suits
brought by their clergy, courts give them an advantage that no
secular employer enjoys.").
Id. at 52-53, 800 A.2d at 856-57.
In Black v. Snyder, 471 N.W. 2d 715 (Minn. 1991), an associate pastor of a
Lutheran church asserted sexual harassment and related claims against her supervising
pastor, alleging that " [the supervising pastor] repeatedly made unwelcome sexual
advances toward her including referring to the two of them as "lovers," physically
contacting her in a sexual manner, and insisting on her companionship outside the work
place, despite her objections." Id. at 717-718.
Black's remaining claim for sexual harassment is based
on pre-discharge conduct by Snyder and the church. She
claims that Snyder's conduct created a hostile work
environment, which the church failed to prevent or to remedy,
and that these conditions violated the Human Rights Act.
23
We recognize that sexual discrimination inheres in the
pastoral appointments of some churches and has been granted,
in effect, a constitutional exemption under both the free
exercise and establishment clauses. However, no court has
extended a similar protection over sexual harassment claims
based on conduct during the employment relationship. Black's
sexual harassment claim is unrelated to pastoral qualifications
or issues of church doctrine. Because she does not seek
reinstatement but only monetary damages, any prospective
remedy would not require extensive court oversight.
***
. . . Permitting Black's claim to go forward presents no greater
conflict with the church's disciplinary authority than that
presented in cases enforcing child abuse laws... We hold,
therefore, that the first amendment does not bar Black from
litigating her sexual harassment claim.
We are unpersuaded that enforcing the Human Rights
Act's harassment prohibitions would actually burden the
church's religious practices, in light of the church's own
policy against such conduct. Even if this regulation would
incidentally burden religious activity or belief, Black is
entitled to assert this claim because the state's interest in
eradicating sexual harassment in the work place is
compelling, and we perceive no adequate, less restrictive
alternative to enforcement.
471 N.W. 2d at 720-721 (internal citations omitted).
In the case at bar, the Church has not argued that there is any doctrinal reason for
the harassment alleged by Respondent. Moreover, the Church has promulgated the
following sexual harassment policy:
Whereas, All persons were created by God in
the divine image and human sexuality is a
gracious gift of God; and
24
Whereas, Our baptism into the family of God
calls us to stand firmly and pastorally against all
forms fo abuse and to respect and empower our
brothers and sisters in Christ; and
Whereas, Sexual violence of many kinds is
widespread in our society (including sexual
harassment on the job, rape and sexual assault,
incest, and child sexual abuse), and experts
estimate that two-fifths of working women
experience sexual harassment, two-fifths of all
American women experience one or more
incidents of sexual assault, and one-third of
American children experience sexual abuse
before the age of 18; and
Whereas, sexual harassment and sexual abuse
betray God’s creation, inflict grievous suffering
on the harm victims, and rend the fabric of the
whole community, of the people of God;
therefore be it
RESOLVED, that the Evangelical Lutheran
Church in America commit itself to work to
make our church a safe place for all persons by
working to eliminate these abuses; and, be it
further
RESOLVED, that the Evangelical Lutheran
Church in America will not tolerate any forms
of sexual abuse or harassment by any of its
personnel...
We agree with the above quoted analysis and therefore hold that the ministerial
exception does not operate to bar every claim of sexual harassment asserted against
church officials by a former ministerial employee.
Counts I–III
25
The opinion of the Court of Special Appeals includes the following analysis:
Counts I & III - Hostile Work Environment and Gender
Discrimination
The first three counts in Linklater’s complaint are
based on Lusk’s and [the fellow employee’s] sexual
harassment. Count I contends that defendants created, or
condoned the creation of a hostile work environment.
***
Count III is for gender discrimination based on
harassing conduct constituting a difference in Lusk’s and [the
fellow employee’s] treatment of her as compared to their
treatment of male members of the church’s staff and
congregation.
These claims can go forward without running afoul of
the ministerial exception because there is no contention that
sexual harassment is part of the ministry. In other words, the
church is not putting forth any religious justification for
Lusk’s conduct. In addition, deciding whether the harassment
occurred would not involve the court in ecclesiastical matters.
The jury would simply have to decide who was more credible
in order to resolve a straightforward, “he said, she said” kind
of factual dispute.
***
It is difficult to see how one could come up with a
principled basis - except for the severity of harm inflicted for distinguishing between this suit and a parishioner’s suit
against a priest who sexually molested him, or the religious
organization that continued to employ that priest..... Although
the sexual harassment cause of action is considered part of
employment law, while actions for molestation would likely
be based on battery, the improper conduct is essentially the
same. In either case, the perpetrator engages in inappropriate
and non-consensual sexual advances. The court need not
delve into ecclesiastical matters to find that this occurred.
26
Count II- Quid Pro Quo Sexual Harassment
***
Unlike the hostile work environment and gender
discrimination claims, adjudicating the quid pro quo claim
would require the court to assess whether Linklater was
“otherwise qualified to receive” a “job benefit.” This would
necessitate an evaluation of Linklater’s job performance,
which would run afoul of the ministerial exception.
We agree with the Court of Special Appeals that, "adjudicating the quid pro quo
claim would require the court to assess whether Linklater was ‘otherwise qualified to
receive a job benefit,’” and thus would "necessitate an evaluation of Linklater's job
performance which would run afoul of the ministerial exception.” We therefore hold that
the ministerial exception prohibits Respondent from proceeding to trial on Count II of her
Complaint.
Although Counts I and III stem from the harassment itself and would not involve
the court in “matters of church governance,” these counts were dismissed by the Circuit
Court on the ground that they were barred by the statute of limitations. The Court of
Special Appeals, however, held that because Respondent had “alleged at least one
instance of retaliatory conduct that fell within the statute of limitations, [Count I and
Count III] are saved by the continuing violation rule.” While we agree that the continuing
violation doctrine is applicable to Count I and Count III, our conclusion is based upon an
incident that is alleged to have occurred within the period of limitations and has nothing
whatsoever to do with church governance.
27
In Richards v. CH2M Hill, Inc., 29 P.3d 175 (Cal. 2001), while holding that an
employer may be held liable for disability related harassment and discrimination actions
occurring outside the limitations period,11 the Supreme Court of California noted that
federal cases interpreting Title VII of the Civil Rights Act of 1964 (Title VII) [(42 U.S.C.
§ 2000e et seq.) have taken four different approaches to the continuing violation doctrine:
In the first approach, a continuing violation is found
when a corporate policy is initiated before the limitations
period but continues in effect within that period to the
detriment of the employee.
***
A second approach to the continuing violation doctrine
is derived from the doctrine of equitable tolling.
***
A third approach is the multi-factored test first
articulated in Berry v. Board of Sup'rs of L.S.U. (5th Cir.
1983) 715 F.2d 971 (Berry). Under this approach, equitable
tolling is one of a number of considerations for determining
when a violation is deemed to be continuing. The court
formulated the three nonexclusive factors of its test as
follows: "The first is subject matter. Do the alleged acts
involve the same type of discrimination, tending to connect
them in a continuing violation? The second is frequency. Are
the alleged acts recurring (e.g., a biweekly paycheck) or more
in the nature of an isolated work assignment or employment
decision? The third factor, perhaps of most importance, is
degree of permanence. Does the act have the degree of
permanence which should trigger an employee's awareness of
and duty to assert his or her rights, or which should indicate to
11
Although Richards involved a claim for disability discrimination, its rationale
has also been applied to hostile work environment cases. See e.g., Birschtein v. New
United Motor Manufacturing, Inc., 112 Cal. Rptr. 2d 347 (Cal. App. 1st Dist. 2001).
28
the employee that the continued existence of the adverse
consequences of the act is to be expected without being
dependent on a continuing intent to discriminate? . . ." ( Id. at
p. 981.) This third factor is akin to equitable tolling, focusing
on when the employee was put on notice that his or her rights
had been violated.
***
A fourth approach to the continuing violation doctrine
has dispensed with the permanence factor altogether. This
approach is exemplified by the Ninth Circuit Court of
Appeals, which has adopted what may be termed a "course of
conduct" test rather than the Berry test, as was recognized in
Counts v. Reno (D.Hawaii 1996) 949 F. Supp. 1478,
1484-1486. The test employed is essentially whether the
separate acts of discrimination are " 'closely enough related' "
to form a continuing violation.
Richards, 29 P.3d at 183-185. (Emphasis supplied) .
The Richards Court also noted that “the Berry test has been widely adopted by the
federal courts.”12 We are persuaded, however, that the “course of conduct” test is most
12
See Bullington v. United Air Lines, Inc. 186 F.3d 1301, 1311, (10th Cir. 1999);
Filipovic v. K & R Exp. System Inc., 176 F.3d 390, 396 (7th Cir. 1999); Sabree v. United
Broth. of Carpenters and Joiners, 921 F.2d 396, 402 (1st Cir. 1990); Hendrix v. City of
Yazoo City, Miss., 911 F.2d 1102, 1104 (5th Cir. 1990); Roberts v. Gadsen Memorial
Hosp., 835 F.2d 793.; (11th Cir. 1988).
The Richards Court ultimately adopted
a modified version of the Berry test. As in Berry, we hold that
an employer's persistent failure to reasonably accommodate a
disability, or to eliminate a hostile work environment
targeting a disabled employee, is a continuing violation if the
employer's unlawful actions are (1) sufficiently similar in
kind--recognizing, as this case illustrates, that similar kinds of
unlawful employer conduct, such as acts of harassment or
failures to reasonably accommodate disability, may take a
29
compatible with National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct.
206 (2002), in which the United States Supreme Court held that Title VII
precludes recovery for discrete acts of discrimination or
retaliation that occur outside the statutory time period. We
also hold that consideration of the entire scope of a hostile
work environment claim, including behavior alleged outside
the statutory time period, is permissible for the purposes of
assessing liability, so long as any act contributing to that
hostile environment takes place within the statutory time
period. The application of equitable doctrines, however, may
either limit or toll the time period within which an employee
must file a charge.
Id. at 105, 122 S. Ct. at 2068.
The Circuit Court and the Court of Special Appeals were both correct in
concluding that Respondent may not benefit from the continuing violation doctrine on the
basis of conduct that is inadmissible under the ministerial exception. The Court of
Special Appeals held that Lusk’s February 4, 2001 speech, at the annual report to the
congregation, was not barred by the ministerial exception and therefore could serve to
“rescue” her otherwise untimely claims. We do not agree with that holding. The
ministerial exception is applicable to a speech in which a pastor (1) informs the
congregation of a pending lawsuit that could affect the Church, and (2) proclaims that he
or she is innocent of misconduct.
It is impossible, however, to hypothesize a religious justification for stabbing a
number of different forms (2) have occurred with reasonable
frequency; (3) and have not acquired a degree of permanence.
Richards, 135 P.2d at 186-190 (footnotes and internal citations omitted).
30
photograph of Respondent with multiple holes through the head, eyes, and chest, and then
posting that photograph in the hallway across from her office. This is clearly an act of
retaliation to which the “course of conduct” test is applicable. Petitioners argue that any
act of retaliation that occurred after October 16, 2002 cannot “rescue” the claims asserted
in Count I and Count III. In Birschtein, supra, the Court of Appeal of California, First
Appellate District, rejected a similar argument, stating:
Defendant argued successfully below, and renews the
same contentions here, that Bonillia's conduct did not amount
to actionable sexual harassment or retaliation for two related
reasons. First, the alleged conduct falling within the
applicable limitations period was not actionable because it
was not based on plaintiff's gender; that is, was not
"harassment . . . based on sex."
***
What began as [] overt acts of sexual harassment (asking for
dates, the "eat you" remarks, his specifically sexual bathing
fantasies) were later transmuted by plaintiff's reaction (her
complaints to management about the offensive conduct) into
an allegedly daily series of retaliatory acts--the prolonged
campaign of staring at plaintiff--acts that were directly related
to, indeed assertedly grew out of, the antecedent unlawful
harassment. The Accardi [v. Superior Court, 21 Cal. Rptr. 2d
292 (Cal. App. 2d Dist. 1993)] opinion put the matter
convincingly when it characterized such a skein of harassment
and complaint followed by retaliatory acts as a "continuous
manifestation of a sex-based animus."
Id. at 351-53. We agree with that analysis, and therefore hold that the continuing
violation doctrine is applicable to Respondent’s allegations of (1) sexual harassment that
occurred more than two years before she filed her Complaint, and (2) retaliatory actions
31
taken against her that occurred within the period of limitations. We therefore affirm the
holding of the Court of Special Appeals that Count I and Count III of Respondent’s
Complaint are not barred by limitations.
Counts IV, V, X, XIV and XV
We hold that the claims asserted in Counts IV, V, X, XIV and XV would
necessarily involve judicial inquiry into church governance, and such an inquiry is
prohibited by the First Amendment. The uniform line of cases that are consistent with
this holding include Black v. Snyder, supra. In that case, while holding that the plaintiff
was entitled to proceed on her sexual harassment claim, the Minnesota Court of Appeals
explained why she was not entitled to proceed on her breach of contract, reprisal,
retaliation, and defamation claims:
Black's breach of contract, retaliation, and statutory
"whistle blower" claims relate specifically to factors of her
appointment as an associate pastor and discharge. These
claims are fundamentally connected to issues of church
doctrine and governance and would require court review of
the church's motives for discharging Black.
Black's defamation claim is based on the church's
stated reason for her discharge as "inability to conduct her
ministry efficiently." This claim would require a similar
review of the church's reasons for discharging Black, an
essentially ecclesiastical concern.
Black's discharge by congregational vote, rather than
by the synod itself, does not undermine the doctrinal
connection. The congregational vote was conducted according
to church procedure established in its constitution. Although
deference is traditionally afforded to decisions of a
hierarchical church's highest authority, the prohibition against
32
litigating matters at the core of a church's religious practice
requires dismissal of Black's discharge-related claims.
471 N.W. 2d at 720.
A trial on the merits of the claim asserted in Count IV would necessarily involve
an inquiry into the various employment actions taken by the Church, and would therefore
“encroach on the ability of a church to manage its internal affairs.” EEOC v Catholic
Univ. of Am., 83 F.3d 455, 460 (D.C. Cir. 1996). A trial on the merits of the claim
asserted in Count V would necessarily involve an inquiry into various employment
actions taken by the Church, as well as an inquiry into matters of church governance. A
trial on the merits of the claim asserted in Count X would necessarily involve an inquiry
into the Church’s employment decisions, and “[t]he [ministerial] exception precludes any
inquiry whatsoever into the reasons behind a church's ministerial employment decision.”
EEOC v. Roman Catholic Diocese, 213 F.3d 795, 801 (4th Cir. 2000). A trial on the
merits of the claims asserted in Counts XIV and XV would necessarily involve an inquiry
into matters of church governance and discipline.
Remaining Issues
Petitioners mount a three prong attack on the M.C.C.. First they argue that
because "employer" was defined by the M.C.C. as an entity with six or more persons
prior to August of 2001,13 it would be inconsistent to impose individual liability on a
13
"Person" is defined as "an individual, legal entity, or a department, agency, or
instrument of the County or, to the extent allowed by law, of federal, State of local
government. A lending institution, including any bank, insurance company, savings and
loan association, or other organization regularly engaged in the business of lending
33
"person." Furthermore, the M.C.C. was changed in August 2001 to define "employer" as
"anyone who has hired a single individual.” Petitioners also argue that the M.C.C. does
not apply to them because, at all times relevant to the case at bar, they did not have the
requisite number of employees. Finally, they challenge the constitutionality of Article
49B, § 42. None of these arguments were presented to the Circuit Court, so they have not
been preserved for appellate review. Petitioners now argue that they are entitled to
review of their challenge to the statute on the ground that "the constitutionality of the
statute is jurisdictional in nature." It is clear, however, that Petitioners’ argument does
not involve an issue of “jurisdiction,” i.e., the power of the court to hear a case. They
now argue that Article 49B, § 42 violates their “constitutional rights” by permitting
variation in county laws. In the words of their brief, “[Prince of Peace] with only three
employees find themselves subjected to claims and uncapped liability that would not have
applied in a vast majority of jurisdictions.” They have waived appellate review of this
argument by failing to present it to the Circuit Court.
Conclusion
For the reasons stated above, we affirm the holding of the Court of Special
Appeals that Count I and Count III be remanded for further proceedings against Lusk and
the Church, and we reverse the holding that the Circuit Court conduct further proceedings
on Counts IV, XIV and XV.
JUDGMENT OF THE COURT OF SPECIAL
money, brokering money, or guaranteeing loans." M.C.C. 27-6.
34
APPEALS AFFIRMED IN PART AND VACATED
IN PART; CASE REMANDED TO THAT COURT
WITH DIRECTIONS TO REVERSE THE
JUDGMENTS ENTERED BY THE CIRCUIT
COURT FOR MONTGOMERY COUNTY ON
COUNT I AND COUNT III OF RESPONDENT’S
COMPLAINT, AND REMAND TO THE CIRCUIT
COURT FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION;
JUDGMENT OTHERWISE AFFIRMED; 65% OF
THE COSTS IN THIS COURT AND IN THE
COURT OF SPECIAL APPEALS TO BE PAID BY
PETITIONERS; 35% OF SAID COSTS TO BE
PAID BY RESPONDENT.
35
Circuit Court for Montgomery County
Case No. 237453-V
IN THE COURT OF APPEALS
OF MARYLAND
No. 66
September Term, 2009
PRINCE OF PEACE
LUTHERAN CHURCH, et al.
v.
MARY LINKLATER
Bell, C.J.,
Harrell
Battaglia
Greene
Murphy
Adkins
Barbera,
JJ.
Concurring and Dissenting Opinion by
Adkins, J., which Bell, C.J., and Battaglia, J.,
join.
Filed: September 21, 2011
I agree with the majority in large part. I respectfully concur and dissent, however,
because I think the majority adopts an unduly broad interpretation of the “ministerial
exception” to state laws against employment discrimination. Although the majority allows
Counts I and III to survive after application of the ministerial exception, its broad reading
of the exception leads to its rejection of Linklater’s retaliatory firing claim and other counts
of her complaint. The majority views the ministerial exception as barring judicial inquiry
into any matter involving “church governance,”1 and it defines church governance liberally.
Applying this broad standard, it concludes that Linklater’s other counts would “necessarily
involve judicial inquiry into church governance, and such an inquiry is prohibited by the
First Amendment.” Maj. Slip Op. at 32–33. I submit that, in doing so, the majority blazes
an unduly broad trail for the ministerial exception, and that the retaliatory discharge count
and others should survive its application.2
I disagree with the majority’s rationale in one other significant respect. In my view,
the majority improperly expands the ministerial exception when it holds that the exception
protects, and thus bars Linklater’s use of, the entirety of Pastor Rufus S. Lusk’s February 4,
1
Maj. Slip Op. at 28, 32.
2
In addition to Counts I (Sexual Harassment and Hostile Work Environment) and III
(Gender Discrimination), I think Counts II (Quid Pro Quo Sexual Harassment), IV
(Retaliatory Harassment and Constructive Discharge), V (Intentional Infliction of Emotional
Distress), X (Negligent Retention and Supervision), XIV (Breach of Contract), and XV
(Breach of Implied Contract) survive proper application of the ministerial exception.
Nevertheless, I agree with the majority that Count V does not survive a motion to dismiss
because it fails to meet our standards for claims of intentional infliction of emotional distress
generally. I do not address whether the other counts have other, possibly fatal, deficiencies.
2001, statements to the congregation.3
I. The Ministerial Exception
A. Scope
The “ministerial exception” to antidiscrimination laws typically prohibits state inquiry
into religious-based employment decisions by churches and other religious organizations.
See Montrose Christian Sch. Corp. v. Walsh, 363 Md. 565, 593, 770 A.2d 111, 127 (2001)
(holding that a church was entitled to employ only members of its faith). Religious-based
employment decisions typically involve the hiring and firing of “ministers,” which can also
include nonclergy.4
This case presents two conflicting values that the ministerial exception must
reconcile: churches’ ability to make spiritual decisions autonomously and the need for
churches to abide by the “profound state interest” in assuring equal employment
opportunities for all, regardless of sex. EEOC v. Roman Catholic Diocese, 213 F.3d 795,
801 (4th Cir. 2000); see also Rayburn v. General Conference of Seventh-Day Adventists, 772
3
Although I consider this point significant, it is not outcome-determinative as to any
count. The issue arises on appeal because the statements were offered by Linklater as an
instance of retaliatory conduct that fell within the period of limitations, thus saving her
claims from dismissal on limitations grounds by virtue of the continuing violation doctrine.
The majority concludes that other conduct by the pastor suffices to save Linklater’s claims
from a limitations defense. See Maj. Slip Op. at 28, 31–32.
4
Respondent Mary Linklater is a “minister” for the sake of the ministerial exception.
This Court has indicated that a “music director” falls under the ministerial exception. See
Archdiocese of Washington v. Moersen, 399 Md. 637, 663–64, 674–75, 925 A.2d 659, 674,
681 (2007). Here, Linklater was the director of music ministry, a full-time position. She
planned the music of the church in a way that enhanced the church’s theological message.
2
F.2d 1164, 1169 (4th Cir. 1985).
The cases upon which the majority relies support the general proposition that many
of a church’s employment decisions are insulated from judicial review. Such insulation
exists to prevent excessive government intrusion into religious decision making. The
majority cites favorably several federal appellate courts explaining, e.g., that “the
constitutional guarantee of religious freedom cannot be construed to protect secular beliefs
and behavior, even when they comprise part of an otherwise religious relationship . . . .”
Maj. Slip Op. at 22 (citing Sanders v. Casa View Baptist Church, 134 F.3d 331, 335–36 (5th
Cir. 1998)).
But the cases do not categorically prevent all government scrutiny of church
employment decisions. Instead, they suggest a more nuanced approach, one that insulates
decisions from judicial review only when they are rooted in spiritual matters. The majority
recognizes this qualification to a degree, holding that the exception cannot preclude sexual
harassment claims. Yet it declines to apply the same qualification when considering the
retaliation claim. A quick review of the pertinent cases reveals that the limited contour of
the ministerial exception does not warrant its application to Petitioner’s retaliation claim.
Bollard v. The California Province of the Society of Jesus, 196 F.3d 940 (9th Cir.
1999), stands for the principle that courts may not inquire into employment decisions if
spiritual matters are the motivation behind those decisions. The Bollard court specifically
limits its holding to employment decisions made “according to the dictates of faith and
3
conscience.” Id. at 945. The case also recognizes that sex discrimination is impermissible
for a religious organization. Id.
As the majority indicates, Sanders v. Casa View Baptist Church, supra, instructs that
the protection afforded to religious relationships has limitations. Protection from judicial
inquiry is given to employment decisions “primarily by preventing the judicial resolution of
ecclesiastical disputes turning on matters of ‘religious doctrine or practice.’” Id. at 336.
Thus, Sanders makes clear that employment decisions should not be shielded from judicial
scrutiny unless they involve spiritual matters, such as religious doctrine or practice. See id.
McKelvey v. Pierce, 173 N.J. 26 (2002), and Black v. Snyder, 471 N.W.2d 715 (Minn.
Ct. App. 1991), also cited favorably by the majority, strongly support a limited scope for the
ministerial exception. The former case held that to “sweep away all of a minister’s or
seminarian’s claims against the church out of fear of encroaching upon the First
Amendment” would actually run afoul of the Constitution’s religion clauses. McKelvey, 173
N.J. at 52. The latter case allowed a sexual harassment claim against a church to proceed
because it was “unrelated to pastoral qualifications or issues of church doctrine.” Black, 471
N.W.2d at 721.
The majority, in disharmonious fashion, both honors and rejects these precedents. To
sustain the sexual harassment claim in Count I, the majority relies upon the rationale of these
cases, i.e., that religious insulation from the enforcement of antidiscrimination laws must be
limited to instances in which the church’s conduct is based on theology or doctrine. Yet
4
when it comes to Linklater’s retaliatory constructive discharge claim in Count IV, the
majority reverses course, relying on Black v. Snyder, supra, for the categorical statement that
such claims “would necessarily involve judicial inquiry into church governance, and such
an inquiry is prohibited by the First Amendment.” Maj. Slip Op. at 32–33.5 In Black,
however, the court denied the retaliatory discharge claim because the church proffered as a
reason for the discharge the plaintiff’s “inability to conduct the pastoral office efficiently in
this congregation in view of local conditions”—and it was the church’s proffered reason, not
the nature of the claim in general, that would have “require[d] a similar review of . . . an
essentially ecclesiastical concern.” 471 N.W. 2d at 718–720. Although I am skeptical of the
distinction drawn in Black between the sexual harassment claim (allowed) and the retaliatory
discharge claim (disallowed), at least the church in Black offered up an arguably doctrinal
rationale for her termination.6
B. Application
Here, the Church fired Linklater after she failed to show up for one week. Yet, she
asserted that she did so only after the Pastor, in retaliation for her filing charges with the
Montgomery County Human Relations Commission and in other formalized channels,
5
The majority also briskly sweeps away Counts IV, V, X, XIV, and XV. Maj. Slip Op.
at 32–34.
6
Furthermore, Black v. Snyder, 471 N.W.2d 715 (Minn. Ct. App. 1991), holds that an
employment claim against a church is more likely permissible if the plaintiff seeks not
reinstatement but only money damages, because adjudication of such a claim “would not
require extensive court oversight.” Id. at 721. Here, Respondent seeks money damages only.
5
refused to give her a job performance evaluation, took unfounded disciplinary actions against
her, and conducted a campaign to lower her standing in the eyes of the congregation. The
Church, in its argument before this Court, proffers no doctrinal or spiritual basis for these
actions.
The majority also relies on EEOC v. Catholic Univ. of Am., 83 F.3d 455, 460 (D.C.
Cir. 1996), for the proposition that the Free Exercise Clause prohibits governmental action
that “encroach[es] on the ability of a church to manage its internal affairs.” Maj. Slip Op.
at 33. Notwithstanding its use of such broad language, that case actually applies a narrow
version of the ministerial exception to resolve a case of “pastoral appointment
determination.” Id. at 461, 465.
Furthermore, the majority’s selective citation of EEOC v. Roman Catholic Diocese,
supra, does not paint a complete picture. The majority states that the ministerial exception
“precludes any inquiry whatsoever into the reasons behind a church’s ministerial
employment decision.” Maj. Slip Op. at 34 (citing Roman Catholic Diocese, 213 F.3d at
801).
But Roman Catholic Diocese also held that “the exception shelters certain
employment decisions from the scrutiny of civil authorities so as to preserve the
independence of religious institutions in performing their spiritual functions.” Roman
Catholic Diocese, 213 F.3d at 801. Again, the finer language in that case demonstrates that
the court engaged in a functional analysis, considering whether the church’s decision
involved spiritual or doctrinal concerns.
None of the majority’s cases delineate a ministerial exception as broad as the one that
6
the majority applies in rejecting Linklater’s retaliatory discharge claim. A better approach,
based on my study of the cases, is to hold that a court may examine employment claims
against a church if they have nothing to do with the spiritual rationale of the ministerial
exception. This includes a retaliatory constructive discharge claim if the church does not
offer a reason for dismissal related to the “spiritual function” of the church.
Count IV of Respondent’s Complaint, accordingly, survives application of the
ministerial exception, as the Church does not assert that it had doctrinal or spiritual grounds
for its alleged retaliatory actions. It only argues that the ministerial exception “applies not
just to matters of religious scriptures or dogma, but also more broadly to matters of church
governance.” Similarly, the Church offers no doctrinal or spiritual basis for the actions for
the actions alleged in Count II (Quid Pro Quo Sexual Harassment), Count V (Intentional
Infliction of Emotional Distress), Count X (Negligent Retention and Supervision), Count
XIV (Breach of Contract) and Count XV (Breach of Implied Contract).7
If the church had offered a rationale for firing Linklater related to her spiritual
functions, that is, her role as the church’s music director, then the ministerial exception
would certainly bar judicial review of that employment decision. By requiring a church to
proffer that the decision was spiritual in nature, the underlying interests of both employment
discrimination statutes and the ministerial exception are served. Here, the church does not
argue that there was a doctrinal or spiritual basis for its decision to fire Linklater, and the
7
There may have been other grounds for dismissal of these counts not presented in
this appeal.
7
majority does not even address whether religious doctrine or spiritual church operations were
considered in her dismissal.
II. Pastor Lusk’s Speech To The Congregation
The question of whether the comments contained in the pastor’s speech to the
congregation—in which he mentioned the lawsuit, its impact on the congregation, its
finances, etc.— has come into play on appeal because Linklater relied on the speech to bring
her claim within the applicable period of limitations under the continuing violation doctrine,
in response to the Church’s defense that her claim was barred by limitations. The majority
holds that the speech to the congregation is protected speech in its entirety, and therefore
inadmissible, but that Linklater’s claim is not barred by limitations (on its face) because she
alleges other retaliatory actions that occurred with the two-year limitations period. I agree
with the majority that Respondent’s claims are not barred by limitations, but do not agree
that the entire speech is protected under the First Amendment.
The majority holds that the ministerial exception applies to speech in which a pastor
(1) informs the congregation of a pending lawsuit that could affect the church, and (2)
proclaims that he or she is innocent of misconduct. Maj. Slip Op. at 31. I submit that this
demarcation of the protective wing of the ministerial exception is overly inclusive, and that
in these statements, the pastor spoke and acted outside the range of the exception.8 Indeed,
8
The relevant portion of Lusk’s remarks follows:
“St. Paul counsels us to speak the truth in love. This has been difficult to do these
past nine months since we are in the midst of a legal action by a staff member Mary
(continued...)
8
the majority does not cite, and I have not found, any cases suggesting that the discussion of
(...continued)
Linklater that has necessitated the church leadership’s maintaining confidentiality.
Nevertheless I need in this forum to speak a word about the troubles of this past year. I don’t
talk about this in worship or teaching, but in council and MMC, and here is a place to
address the entire congregation.
“I am the interim pastor. I have no intention of outstaying my usefulness to this
congregation. I have been sent here by Bishop Schneider to help you with the transition
from one called pastor to another. While I may be the interim pastor I am a real pastor and
your presiding pastor. I pray for this congregation, I celebrate your joys and share your
agonies. I love this congregation and have done the best I know how to preach and teach and
pastor this past year.
“But I am very concerned about the future of this congregation. We face a budget
that has either a $60K or $40K deficit depending upon your actions this afternoon.
Moreover, as many of you know, Ms. Linklater has filed a complaint with the Montgomery
County Human Rights Commission alleging a hostile work environment and other
allegations and naming the council, the MMC, the bishop, Neil Howard and myself. This
is a public document and you may request a copy. It should be noted that these allegations
were only made after the council and MMC expressed displeasure with her performance.
More disturbing, a church member, her attorney of record Alice Johnson, has written a letter
demanding a $2.5 million settlement for these supposed allegations, hoping that a significant
amount of the money would come from me personally.
“One reason I remain your interim pastor is because of the personal request of your
bishop, despite the stress these unfounded allegations have caused me and my family. The
bishop has complete faith in my ability to see you through this crisis knowing full well there
is no credence to Ms. Linklater’s allegations against me.
“As a member of the nominating committee it was my goal, shared absolutely I
believe by all members of the committee to find the best six people in our congregation to
lead us out of this quagmire. I believe that we have found those six people, and I would urge
you to vote for them while also thanking the other five candidates for their concern and love
for Prince of Peace. Whoever you elect today I would hope that the congregation would let
the new council do its job in a peaceful fashion. Come to the council when you have
business before them, but please let them do their job without micro-managing or trying to
intimidate them. Moreover, I would hope that the new council would maintain
confidentiality.
“Finally the work of pastoring to the many members of the congregation I have come
to know well over the past 15 months, the joy of welcoming new members into this
congregation, and my unfailing commitment, despite this personal trial, to the continuance
of this Christian community has deeply enriched my faith.”
9
such matters is protected.
The majority’s rule is especially perilous because it suggests that simply by adding
cursory religious content to a statement, a minister gains unlimited freedom to speak with
impunity on almost any subject, protected from Title VII and corresponding state claims, as
well as from defamation or other tort claims. This rule could allow an unscrupulous minister
to use the pulpit to wage a campaign of continued harassment and defamation, cloaked in
but unrelated to doctrine or theology.
Lusk was addressing his congregation during the church’s annual meeting. Lusk’s
remarks on Linklater took up approximately half of his entire address to the congregation,
and they had a very personal tone. He protested to the entire congregation about Linklater’s
claim, singling her out by name. Lusk gave assurances that Linklater’s allegations had “no
credence.” He described his own personal and familial stress and called the lawsuit a
“crisis,” a “quagmire,” and a “personal trial.”
The content and tone of his speech could reasonably be interpreted as trying to sway
congregational opinion against Linklater. Lusk encouraged the congregation to obtain a
public-record copy of the Complaint that Linklater filed. He singled out another church
member by name for representing Linklater and for “demanding a $2.5 million settlement,”
calling the settlement negotiation “disturbing.” He even insinuated that Linklater’s claim
itself was retaliatory, in that she did not make her allegations until after the church council
“expressed displeasure with her performance.”
Lusk made it very clear that his motivation for speaking about Linklater was not
10
spiritual in nature. He specifically said that he was not speaking “in worship or teaching.”
His statement had little to do with church governance or an employment decision. Instead,
his remarks could reasonably be perceived as an effort to turn congregational sentiment in
his own favor and against Linklater. All of these factors operate to remove his remarks from
the shelter of the ministerial exception.
For these reasons, I would reach the same result as the majority on Counts I and III,
holding that limitations is no bar to Petitioner’s claims. But, I would rely on this speech, in
addition to the “photograph stabbing” conduct relied on by the majority, to do so.
Chief Judge Bell and Judge Battaglia authorize me to state that they join in the views
expressed in this opinion.
11
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