Miriam Grussgott v. Milwaukee Jewish Day School, I , 882 F.3d 655 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-2332
MIRIAM GRUSSGOTT,
Plaintiff-Appellant,
v.
MILWAUKEE JEWISH DAY SCHOOL, INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 16-CV-1245 — J.P. Stadtmueller, Judge.
____________________
SUBMITTED JANUARY 24, 2018 — DECIDED FEBRUARY 13, 2018
____________________
Before BAUER, KANNE, and BARRETT, Circuit Judges.
PER CURIAM. Miriam Grussgott, a Hebrew teacher, sued
her former employer, Milwaukee Jewish Day School, for fir-
ing her in violation of the Americans with Disabilities Act.
The school moved for summary judgment, arguing that the
First Amendment’s ministerial exception to employment-dis-
crimination laws, including the ADA, barred Grussgott’s suit.
The district court granted the motion, concluding that the
2 No. 17-2332
school is a religious institution and that Grussgott’s role there
was ministerial. We affirm.
I. BACKGROUND
Our account of the facts here tracks the summary-judg-
ment standard, setting forth the facts that cannot reasonably
be disputed based on the record evidence, but also giving
Grussgott, as the non-moving party, the benefit of conflicts in
the evidence and drawing reasonable inferences in her favor.
See Carson v. ALL Erection & Crane Rental Corp., 811 F.3d 993,
994 (7th Cir. 2016).
Milwaukee Jewish Day School is a private school dedi-
cated to providing a non-Orthodox Jewish education to Mil-
waukee schoolchildren. Students are taught Jewish studies
and Hebrew and engage in daily prayer. The school also em-
ploys a rabbi on staff and has its own chapel and Torah scrolls.
But the school does not require its teachers to be Jewish and
has an antidiscrimination policy expressly barring discrimi-
nation on the basis of religion, as well as race, gender, and
sexual orientation.
The school hired Grussgott in 2013 to teach both Hebrew
and Jewish studies to first- and second-graders. Grussgott
had an extensive background teaching both of these subjects,
which was relevant to the school’s decision to hire her. She
was then rehired for the 2014-15 school year as a second- and
third-grade teacher, but the parties’ opinions regarding her
duties at this time differ. Grussgott states that she was rehired
solely as a Hebrew teacher and that she had no job responsi-
bilities that were religious in nature. She says that during the
2014–15 school year, she was no longer invited to attend the
Jewish Studies meetings that she had been required to attend
No. 17-2332 3
the previous year. She does acknowledge, however, that she
taught Hebrew from an integrated Hebrew and Jewish Stud-
ies curriculum, known as Tal Am, and that she attended com-
munity prayer sessions. She also concedes that she discussed
Jewish values with her students, taught about prayers and To-
rah portions, and discussed Jewish holidays and symbolism.
But, she asserts, this teaching was done from a cultural and
historical, rather than a religious, perspective. She also attests
that these portions of her lessons were taught voluntarily, not
as part of her formal job requirements.
The school maintains that Grussgott continued to be em-
ployed as a Hebrew and Jewish Studies teacher during the
2014–15 school year and that she should have continued to
attend the Jewish Studies meetings at this time. The school
also disputes that Grussgott’s teaching of prayer and the To-
rah was voluntary, maintaining that this was in fact part of
the school’s curriculum and mission generally.
Grussgott underwent medical treatment for a brain tumor
in 2013 and ceased working during her recovery. She has
since suffered memory and other cognitive issues. She re-
turned to work in June 2014. During a March 2015 telephone
call from a parent, Grussgott was unable to remember an
event, and the parent taunted her about her memory prob-
lems. Grussgott’s husband (a rabbi) then sent an email, from
Grussgott’s work email address, criticizing the parent for be-
ing disrespectful. The school terminated Grussgott after the
incident. Grussgott then sued the school under the Americans
with Disabilities Act, claiming that she was terminated be-
cause of her cognitive issues resulting from her brain tumor.
4 No. 17-2332
The school moved for summary judgment, arguing that
because of Grussgott’s religious role at the school, the minis-
terial exception barred her lawsuit. Grussgott’s evidence in
opposition included the declaration of Michael Broyde, an or-
dained rabbi and law professor at Emory University. Broyde
stated that his knowledge regarding the ministerial exception
led him to believe that it did not apply to Grussgott’s duties.
The district court disregarded this testimony, noting that the
“application of precedent to a given factual scenario is a ques-
tion of law, and the Court is the only expert permitted to ad-
dress such questions.” The district court determined that the
ministerial exception applied to Grussgott, and consequently
did not consider the merits of her ADA claim. Grussgott ap-
pealed and is now proceeding pro se.
II. ANALYSIS
The primary issue before us is whether Grussgott was a
ministerial employee. In 2012, the Supreme Court adopted the
“ministerial exception” to employment discrimination laws
that the lower federal courts had been applying for years. Ho-
sanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C, 565
U.S. 171, 188 (2012). Under both the Free Exercise Clause,
“which protects a religious group’s right to shape its own
faith and mission through its appointments,” and the Estab-
lishment Clause, “which prohibits government involvement
in such ecclesiastical decisions,” religious organizations are
free to hire and fire their ministerial leaders without govern-
mental interference. Id. at 188–89. The Court declined, how-
ever, to delineate a clear test for determining who is a minis-
terial employee. Id. at 190.
Consequently, whether Grussgott’s role as a Hebrew
teacher can properly be considered ministerial is subject to a
No. 17-2332 5
fact-intensive analysis. And usually such questions are left for
a jury. Ultimately, however, even taking Grussgott’s version
of the facts as true, she falls under the ministerial exception as
a matter of law. Her integral role in teaching her students
about Judaism and the school’s motivation in hiring her, in
particular, demonstrate that her role furthered the school’s re-
ligious mission.
As a preliminary matter, we must confirm that the school
is a religious institution entitled to assert protection under the
ministerial exception. Religious schools can be religious insti-
tutions capable of claiming the ministerial exception. See Ho-
sanna-Tabor, 565 U.S. at 188–89. Grussgott argues that the
school is not a religious institution because it does not adhere
to Orthodox principles, employs a rabbi only in an advisory
(rather than supervisory) capacity, and has a nondiscrimina-
tion policy. But the school’s decision to cater toward Con-
servative, Reform, and Reconstructionist Jewish families, as
opposed to Orthodox ones, does not deprive it of its religious
character. See Shaliehsabou v. Hebrew Home of Greater Wash.,
Inc., 363 F.3d 299, 310 (4th Cir. 2004) (explaining that key in-
quiry is whether organization’s “mission is marked by clear
or obvious religious characteristics”). Nor is there any re-
quirement, as Grussgott seems to think, that a religious insti-
tution employ “ordained clergy” at the head of an “ecclesias-
tical hierarchy.” Such a constraint would impermissibly favor
religions that have formal ordination processes over those
that do not. See Hosanna-Tabor, 565 U.S. at 198 (Alito, J., con-
curring); see also Larson v. Valente, 456 U.S. 228, 244 (1982)
(“The clearest command of the Establishment Clause is that
one religious denomination cannot be officially preferred
over another.”).
6 No. 17-2332
Further, the school’s nondiscrimination policy does not
constitute a waiver of the ministerial exception’s protections.
There is no requirement that an organization exclude mem-
bers of other faiths in order to be deemed religious. See Ho-
sanna-Tabor, 565 U.S. at 177 (finding school was religious or-
ganization even though lay teachers were not required to be
Lutheran). And, in any event, a religious institution does not
waive the ministerial exception by representing itself to be an
equal-opportunity employer. See Tomic v. Catholic Diocese of
Peoria, 442 F.3d 1036, 1041–42 (7th Cir. 2006), abrogated on other
grounds by Hosanna-Tabor Evangelical Lutheran Church and
School v. E.E.O.C., 565 U.S. 171 (2012)). We therefore should
not use the school’s promotion of inclusion as a weapon to
challenge the sincerity of its religious beliefs.
The closer question is whether Grussgott’s role can
properly be considered ministerial. This case presents the first
opportunity for us to address the ministerial exception in
light of Hosanna-Tabor. Consequently, Grussgott’s argument
focuses on differentiating herself from the teacher in that case,
and she is correct that her role is distinct from the called
teacher’s in Hosanna-Tabor. But the Supreme Court expressly
declined to delineate a “rigid formula” for deciding when an
employee is a minister. Hosanna-Tabor, 565 U.S. at 190, 192. In-
stead, the Court emphasized that it was conducting a fact-in-
tensive analysis, considering (1) “the formal title” given by
the Church, (2) “the substance reflected in that title,” (3) “[the
teacher’s] own use of that title,” and (4) “the important reli-
gious functions she performed for the Church.” Id. at 192.
As noted by The Becket Fund for Religious Liberty in its
amicus brief, other courts of appeals have explained that the
same four considerations need not be present in every case
No. 17-2332 7
involving the exception. See Fratello v. Archdiocese of N.Y., 863
F.3d 190, 206 (2d Cir. 2017) (concluding that lay principal was
covered by ministerial exception after discussing considera-
tions in Hosanna-Tabor); Conlon v. InterVarsity Christian Fellow-
ship, 777 F.3d 829, 835 (6th Cir. 2015) (finding that the minis-
terial exception applied when only two of four Hosanna-Tabor
factors were present); Cannata v. Catholic Diocese of Austin, 700
F.3d 169, 176 (5th Cir. 2012) (“Any attempt to calcify the par-
ticular considerations that motivated the Court in Ho-
sanna-Tabor into a ‘rigid formula’ would not be appropriate”).
But because they provide a useful framework, we examine
those factors here.
First, Grussgott’s job title cuts against applying the minis-
terial exception. She identifies her role as “grade school
teacher.” This ostensibly lay title is distinct from Hosanna-Ta-
bor, in which the plaintiff was a “called teacher” (as opposed
to a “lay teacher”) who had been given the formal title of
“Minister of Religion, Commissioned.” Hosanna-Tabor, 565
U.S. at 178, 191. And even if we consider her title to be “He-
brew teacher,” this alone would not show that Grussgott
served a religious role. One might have this same title at a
public school and perform a completely secular job, although,
in this case, the school insists that its students learn Hebrew
as a religious exercise that cannot be characterized simply as
foreign-language instruction. In any case, Grussgott’s title
alone, while “surely relevant,” is not “by itself” dispositive.
Id. at 193. Assuming that Grussgott had the purely secular ti-
tle of “grade school teacher” does not rule out the application
of the ministerial exception. See Tomic, 442 F.3d at 1040–41
(applying exception to organist/music director); Alicea-Her-
nandez v. Catholic Bishop of Chi., 320 F.3d 698, 704 (7th Cir.
2003) (applying exception to press secretary).
8 No. 17-2332
Grussgott’s use of her title also does not support the appli-
cation of the ministerial exception. In analyzing this factor,
other circuits have examined how an employee presented
herself to the public. See Conlon, 777 F.3d at 835 (concluding
that teacher who occasionally led prayer did not satisfy this
consideration because she did not have public role interacting
with community); Fratello, 863 F.3d at 208 (explaining that
school principal presented herself as spiritual leader by lead-
ing school prayer and conveying religious messages in
speeches and newsletters). There is no evidence that
Grussgott ever held herself out to the community as an am-
bassador of the Jewish faith, nor that she understood that her
role would be perceived as a religious leader. See Conlon, 777
F.3d at 835; Fratello, 863 F.3d at 208. Rather, she has consist-
ently maintained that her teaching was historical, cultural,
and secular, rather than religious. Although, as discussed be-
low, we cannot consider the accuracy of this distinction
(which the school insists does not exist), how Grussgott de-
fined her position at the school and to the community is rele-
vant.
The substance reflected in Grussgott’s job title, on the
other hand, weighs in favor of applying the ministerial excep-
tion. True, teachers at the school were not required to com-
plete rigorous religious requirements comparable to the
teacher in Hosanna-Tabor. See 565 U.S. at 191 (noting that it
took plaintiff six years to complete educational coursework
and other requirements to become commissioned minister).
And though Grussgott obtained the certification required for
Tal Am, the record lacks any description of what this entailed
other than the completion of seminars in either the United
States or Israel. See Conlon, 777 F.3d at 835 (finding this factor
was not demonstrated when employee received certification
No. 17-2332 9
in “spiritual direction” but court was not provided with fur-
ther details). But Hebrew teachers at Milwaukee Jewish Day
School were expected to follow the unified Tal Am curricu-
lum, meaning that the school expected its Hebrew teachers to
integrate religious teachings into their lessons. Grussgott’s re-
sume also touts significant religious teaching experience,
which the former principal said was a critical factor in the
school hiring her in 2013. Thus, the substance of Grussgott’s
title as conveyed to her and as perceived by others entails the
teaching of the Jewish religion to students, which supports
the application of the ministerial exception here. See Fratello,
863 F.3d at 208.
The final factor also supports the application of the minis-
terial exception. Specifically, Grussgott performed “im-
portant religious functions” for the school. Hosanna-Tabor, 565
U.S. at 192; see Alicia-Hernandez, 320 F.3d at 703. Grussgott un-
disputedly taught her students about Jewish holidays, prayer,
and the weekly Torah readings; moreover, she practiced the
religion alongside her students by praying with them and
performing certain rituals, for example. Grussgott draws a
distinction between leading prayer, as opposed to “teaching”
and “practicing” prayer with her students. She also chal-
lenges the notion that the “Jewish concept of life” taught at
Milwaukee Jewish Day School is religious, claiming this too
is predominately taught in a historical manner. But
Grussgott’s opinion does not dictate what activities the school
may genuinely consider to be religious. “What makes the ap-
plication of a religious-secular distinction difficult is that the
character of an activity is not self-evident.” See Corp. of Presid-
ing Bishop of Church of Jesus Latter-day Saints v. Amos, 483 U.S.
327, 343 (1987) (Brennan, J., concurring in judgment). For ex-
ample, some might believe that learning the history behind
10 No. 17-2332
Jewish holidays is an important part of the religion.
Grussgott’s belief that she approached her teaching from a
“cultural” rather than a religious perspective does not cancel
out the specifically religious duties she fulfilled.
Further, there may be contexts in which drawing a distinc-
tion between secular and religious teaching is necessary, but
it is inappropriate when doing so involves the government
challenging a religious institution’s honest assertion that a
particular practice is a tenet of its faith. See Sch. of Dist. of
Abington Twp., Pa. v. Schempp, 374 U.S. 203, 306 (1963) (Gold-
berg, J., concurring) (recognizing distinction between “teach-
ing religion” and “teaching about religion” in determining
what is permissible to teach in public schools). And not only
is this type of religious line-drawing incredibly difficult, it im-
permissibly entangles the government with religion. See
Amos, 483 U.S. at 343 (“[D]etermining whether an activity is
religious or secular requires a searching case-by-case analysis.
This results in considerable ongoing government entangle-
ment in religious affairs.”); Alicea-Hernandez, 320 F.3d at 702.
This does not mean that we can never question a religious or-
ganization’s designation of what constitutes religious activ-
ity, but we defer to the organization in situations like this one,
where there is no sign of subterfuge. See Tomic, 442 F.3d at
1039.
Grussgott maintains that because she voluntarily per-
formed religious functions but was not required to do so, she
remained a secular employee. She concedes that she taught
her students about prayer, Torah portions, and Jewish holi-
days, but says that it does not matter because she chose these
topics. But whether Grussgott had discretion in planning her
No. 17-2332 11
lessons is irrelevant; it is sufficient that the school clearly in-
tended for her role to be connected to the school’s Jewish mis-
sion. In Hosanna-Tabor, the Court considered it important that
the plaintiff was “expressly charged” with “lead[ing] others
to Christian maturity.” Hosanna-Tabor, 565 U.S. at 192. Com-
parably, Milwaukee Jewish Day School expected Grussgott to
follow its expressly religious mission and to teach the Tal Am
curriculum, which is designed to “develop Jewish knowledge
and identity in [its] learners.” Mission, HEBREW AND HERITAGE
CURRICULA FOR JEWISH SCHOOLS, http://www.talam.org/mis-
sion.html (last visited Jan. 10, 2017); see Conlon, 777 F.3d at 835.
This, combined with the importance of Grussgott’s Judaic
teaching experience in her being hired, confirms that the
school expected her to play an important role in “transmitting
the [Jewish] faith to the next generation.” Hosanna-Tabor, 565
U.S. at 192. Even if Grussgott did not know this, the purpose
of the ministerial exception is to allow religious employers the
freedom to hire and fire those with the ability to shape the
practice of their faith. Thus, it is the school’s expectation—that
Grussgott would convey religious teachings to her students—
that matters. See Cannata, 700 F.3d at 177 (explaining that mu-
sic director served ministerial role because he conveyed
church’s message to congregants, even though he believed he
“merely played the piano at Mass” and completed secular du-
ties).
Furthermore, although Grussgott maintains that any reli-
gious tasks she performed were voluntary, there is evidence
that she was tasked with specific religious duties on occasion.
At least once in 2015, the school rabbi asked her to take the
second-graders to study the week’s Torah portion. And even
Grussgott’s own (rejected) expert contradicts her assertion
12 No. 17-2332
that any religious role she took on was voluntary: his declara-
tion states that Grussgott is “called upon to ‘lead in prayer’ …
in the course of a teaching component of her job.”
In this case, at most two of the four Hosanna-Tabor factors
are present. But even referring to them as “factors” denotes
the kind of formulaic inquiry that the Supreme Court has re-
jected. And surely it would be overly formalistic to call this
case a draw simply because two “factors” point each way. As
the district court concluded, the “formalistic factors are
greatly outweighed by the duties and functions of
[Grussgott’s] position.” The school intended Grussgott to take
on a religious role, and in fact her job entailed many functions
that simply would not be part of a secular teacher’s job at a
secular institution.
Eschewing a formal four-factor test, however, does not
warrant adopting the approach of the amicus, which, though
narrower, is just as formulaic. The amicus argues that we
should adopt a purely functional approach to determining
whether an employee’s role is ministerial. In other words, it
suffices to ascertain whether an employee performed reli-
gious functions and apply the exception if she did. But look-
ing only to the function of Grussgott’s position would be in-
appropriate. See Cannata, 700 F.3d at 176 (“[B]ecause the Su-
preme Court eschewed a ‘rigid formula’ in favor of an all-
things-considered approach, courts may not emphasize any
one factor at the expense of other factors.”); Conlon, 777 F.3d
at 835 (declining to decide whether the presence of the fourth
factor is sufficient to find the ministerial exception applies).
We read the Supreme Court’s decision to impose, in essence,
a totality-of-the-circumstances test. And it is fair to say that,
under the totality of the circumstances in this particular case,
No. 17-2332 13
the importance of Grussgott’s role as a “teacher of [] faith” to
the next generation outweighed other considerations. See Ho-
sanna-Tabor, 565 U.S. at 199 (Alito, J., concurring). We do not
adopt amici’s position that “function” is the determining fac-
tor as a general rule; instead, all facts must be taken into ac-
count and weighed on a case-by-case basis.
As a final matter, Grussgott argues that the district court
abused its discretion when it disregarded Broyde’s expert tes-
timony. But the court acted reasonably by not considering
Broyde’s declaration. The declaration conveyed a legal opin-
ion as to whether the ministerial exception applied to
Grussgott. As the district court properly recognized, Broyde
had overstepped his role as an “expert” by opining on the ul-
timate question of whether Grussgott was a ministerial em-
ployee. United States v. Knoll, 785 F.3d 1151, 1156 (7th Cir.
2015); FED. R. EVID. 702(a). Courts do not consult legal experts;
they are legal experts.
III. CONCLUSION
Some factual disputes exist in this case, but they are not
enough to preclude summary judgment. Even if we disre-
garded the school’s version of facts altogether, Grussgott’s
own admissions about her job are enough to establish the
ministerial exception as a matter of law. For these reasons, we
AFFIRM the district court’s grant of summary judgment in fa-
vor of the defendant-appellee.