Vickie Fisher was employed as the Co-Director of Gate of Heaven Cemetery, a Catholic cemetery owned and operated by Archdiocese of Cincinnati. In fall 2010, a cemetery employee complained to the Archdiocese that Fisher and her compatriot were part of a scheme to sell damaged grave markers for scrap metal and distribute the cash proceeds to Gate of Heaven employees. It was also alleged Fisher was using profanity in her dealings with employees. Fisher was reprimanded, but the Archdiocese ultimately decided new management was needed. In addition to the concerns created by the complaint, sales were lackluster.
The Archdiocese decided the Gate of Heaven Cemetery would operate better with a single manager who had more substantive business credentials. The job description was rewritten to require an advanced degree and greater business experience. The Archdiocese hired Debra Crane, a non-Catholic, as the new Executive Director for the Gate of Heaven Cemetery. Crane was an experienced attorney and manager who had experience turning around underperforming businesses. Fisher, who had been employed by Gate of Heaven Cemetery for two decades, was concerned that Crane would not be able to handle the “faith part of the job.” Fisher’s position was eliminated in June 2011 when Crane decided to reorganize the cemetery’s sales force.
Several months later Fisher filed a lawsuit alleging, among other things, age discrimination. The Archdiocese moved for summary judgment, arguing that the ministerial exception was a defense to Fisher’s statutory discrimination claim.
The ministerial exception is based on the Free Exercise and Establishment Clauses, which provide that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” As interpreted by federal courts, this language prevents the government from interfering with religious group’s decision to fire one of its ministers.
So who is a minister? There has been quite a bit of litigation about this question, eventually resulting in the Supreme Court’s 2012 decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. That case involved a narcoleptic teacher who was not permitted to return from disability leave and was eventually fired for disruptive behavior, which included threatening to take legal action about her situation. The Supreme Court unanimously found that the ministerial exception prevented the plaintiff’s ADA retaliation claim.
In any event, it is clear that one need not be the head of a religious group or congregation to be a minister; nor is any formal ordination or commission required. A case-by-case analysis is necessary to determine whether the employee’s job duties reflect a role in “conveying the Church’s message and carrying out its mission.”
Despite Fisher’s concerns that Crane would not be able to handle the “faith part of the job,” she argued that her duties at Gate of Heaven Cemetery were not religious. The Ohio appeals court found the facts demonstrated otherwise:
“Both the cemetery’s mission statement and employee handbook required Fisher to acknowledge the religious function that she was performing and the ultimate authority of the Archdiocese in such matters. Fisher was responsible for coordinating services in the chapel, working with grieving families, coordinating services with various parishes, and attending grave-site services. She interacted with clergy on a daily basis, and employed her status as a “person of faith” to console grieving families. Fisher conducted these duties in a liturgical setting replete with religious statuary, photographs of the Pope and Archbishop, and a dispensary for Rosaries.”
Fisher also argued that the ministerial exception did not apply to her position at Gate of Heaven Cemetery because the Archdiocese hired a non-Catholic to replace her, thereby conceding that being a minister was not a requirement to direct the cemetery. The Court rejected this argument, stating that the proper analysis is personal to the individual plaintiff, and that, in any case, Crane was performing pursuant to a reformulated job description.
Click here to read the entire opinion.