judicialsupport

Legal Writing for Legal Reading!

Archive for the tag “labor”

Clash of the Canons and Civil Law at GTS

This post is from Anglican Curmudgeon which you can find here.

An excerpt of the Anglican Curmudgeon post is as follows: “The recent meltdown at the country’s oldest theological seminary (and the only Episcopal seminary under the direct supervision of ECUSA) puts to the test some of the canonical abuses and litigation strategy implemented in the last few years by the Church’s leadership at 815 Second Avenue. Eight of the ten full-time faculty employed by General Theological Seminary declared in a September 17 letter to the Board of Trustees that due to the “hostile work environment” created by the Seminary’s Dean and President, the Very Rev. Kurt H. Dunkle, they were unable to continue to work under him.

The phrase “hostile work environment” is drawn from the well-developed body of labor law enforced in the United States by the National Labor Relations Board. However, ever since a decision by the United States Supreme Court in 1979, the NLRB’s jurisdiction has been held not to extend to religious schools and their faculties (including lay faculty), due to concerns over entanglement with religious rights under the First Amendment. Just as with all the recent Church property disputes, ECUSA has been at the forefront of insisting that the civil courts must defer to it in all civil litigation involving its religious affairs, governance and operations.”

You can learn more about this issue here.

Advertisements

Employees Beware of Complaining

Check out Faye Cohen’s blog post “Employees Beware of Complaining ” on her blog Toughlawyerlady here.

Rights of Employees in Pennsylvania

Check out Faye Cohen’s blog post “Rights of Employees in Pennsylvania ” on her blog Toughlawyerlady here.

Episcopalian Evicted and Vestry Vacated

As he was leaving Canterbury Cathedral on December 29, 1170, King Henry II of England, frustrated with Archbishop of Canterbury St. Thomas à Becket, mumbled under his breath those fateful words [w]ill no one rid me of this turbulent priest? Four knights who accompanied the King heard his grumble and, later that same day, returned to the Cathedral and martyred the great Saint on the stairs leading to the quire. Fortunately for the Rt. Rev. (now Bishop) David Moyer (Bp. Moyer), the Episcopal Diocese of Pennsylvania was able to rid itself of him in a much less bloody way, but it took a rather impressive amount of litigation to do it.

Over the last decade or so, due to theological division, with the Episcopal Church (Episcopal Church or National Church) choosing to proceed down a wide and liberal road and the orthodox within it choosing to proceed down a narrow and traditional road, a variety of civil litigation has emerged across the country between the Episcopal Church and the orthodox within it. The litigation has mostly regarded the status of church property held by an orthodox congregation within a liberal diocese, the status of an orthodox diocese within the liberal National Church, or the status of an orthodox clergyman relative to a liberal bishop above him.

The issues described above in general have been raging since about 2002 specifically in Montgomery County Court between Bp. Moyer, who was once an orthodox Episcopal priest and rector of the parish Church of the Good Shepherd in Rosemont (Good Shepherd), and the liberal Episcopal Diocese of Pennsylvania (the Diocese) and its equally liberal diocesan bishop, Rt. Rev. Charles E. Bennison (Bp. Bennison). I have written about the above issues and the litigation between Good Shepherd, Bp. Moyer, and the Diocese and/or Bp. Bennison previously in Upon Further Review. With regard to the issue of property ownership, my January 9, 2009, article National Church v. Regional Diocese: Property Ownership by a Religious Institution (which can be found here), described the legal issues surrounding the property disputes within the Episcopal Church. My March 9, 2009, article Episcopalian In-Fighting Spreads to Montgomery County Courthouse (which can be found here), described the legal issues surrounding the defrocking of Bp. Moyer by Bp. Bennison.

Although the precise issues in the above cited articles are slightly beyond the scope of the instant article, they certainly can help the reader get a clearer picture of the legal landscape over which Good Shepherd, the Episcopal Church, the Diocese, Bp. Moyer, and Bp. Bennison have trod in Montgomery County Court to set the tone for the matter described below, In Re: the Church of the Good Shepherd Rosemont, Pennsylvania Incorporated, No.: 09-0609. Suffice it to say here that the Court has essentially ruled that Bp. Moyer is no longer an employee of the Diocese and has no right to engage in clerical functions within the context of the Diocese and/or the Episcopal Church. The matter before the Court in In Re: the Church of the Good Shepherd Rosemont, Pennsylvania Incorporated is the determination of who has rightful control over the property of Good Shepherd and whether Bp. Moyer may reside in the its rectory.

The Diocese and the Episcopal Church (Petitioners) filed a Petition for Citation against Good Shepherd, Bp. Moyer, and members of Good Shepherds parish Vestry (the layman’s governing body) for possession of the Good Shepherd property and the removal of both Bp. Moyer and the Vestry members for attempting to obstruct and/or remove Petitioners from possession and/or control of the aforesaid property. After a complex web of responsive pleadings, including a series of opposing preliminary objections, the Petitioners filed for Summary Judgment against Good Shepherd and it is in the context of summary judgment that Judge Stanley Ott entered the Order at issue herein.

The Court reviewed the history of Good Shepherds property. Good Shepherd was incorporated in 1870 and in the charter for the parish it declared that it was a member of both the National Church and Diocese. The charter is consistent with the canons and constitutions of both the Diocese and National Church which mandate that parish property is held in trust for the Diocese and, in turn, the National Church. The canons and constitutions also prohibit parish property from being alienated without the consent of the Diocese. The deed to the parish was transferred to the Diocese in 1910 but was subsequently deeded back to the parish in 1967 with the proviso that it be used for worship according to the doctrine and discipline of the National Church.

The primary issue addressed by Judge Ott is who or what controls Good Shepherds property. In support of its petition, Petitioners set forth six (6) arguments: (1) Good Shepherd announced that it is no longer a part of the Diocese and/or National Church and was seeking affiliation with another denomination; (2) Good Shepherd continued to employ Bp. Moyer despite his defrocking in 2002 and the Diocesan canons requiring parishes to only employ clergy licensed by the Diocese; (3) Bp. Moyer entered Holy Orders in another denomination; (4) Good Shepherd has employed other priests not licensed by the Diocese; (5) Good Shepherd has used parish assets to support activities to subvert the Episcopal Church and/or the Diocese; and (6) the diocesan canons authorize the bishop, with consent of the Standing Committee (the Diocese’s layman’s governing body), after a determination has been made that a parish ceased to act in accordance with the Diocese’s constitution and canons, to take necessary measures to take over the parish’s property. The Diocese, through both its Standing Committee and bishop, believed that due to the actions of Bp. Moyer and the members of the Vestry, Good Shepherd had ceased to act within the canons and constitution of the Diocese and were taking necessary measures to take over its property.

Good Shepherd, in response to the Petition, answered the above six (6) arguments as follows: (1) it denied that it has determined to sever ties with the National Church or Diocese; (2) it alleged Bp. Moyer, though not licensed in the Diocese, was licensed by other Dioceses of the Episcopal Church, Anglican Communion, and the Archbishop of Canterbury; (3) it alleged parish assets are still used for the benefit of the Episcopal Church; (4) it denied that the Episcopal Church was hierarchical; (5) it denied that Bp. Moyer entered Holy Orders in a different church; and (6) it alleged the applicable canons and constitutions, when read in concert, do not indicate parish property is held in trust. Finally, Good Shepherd provided various arguments that the Diocesan Bishop of Pennsylvania did not have authority, under the canons and constitution, to bring the action against it.

As an initial matter, the Court, due to the United States Constitutions First Amendment guarantee of the freedom to practice ones religion, ruled that it could not inquire into the propriety of the internal governance or administration of the Church at issue. Further, it also refused, on the same grounds, to rule as to whether Bp. Moyer, who received Holy Orders in another branch of Anglicanism, can still be deemed an Episcopal priest. Regardless of the preceding, the Judge did not believe that either of the above was necessary to make a ruling on the Petition at issue. The Court ruled that although a church was involved, neutral legal principles could be applied to resolve the property dispute raised in the Petition without directly engaging any religious issues.

After all of the above were considered, the Diocese elected to restrict the relief it sought simply to a determination that the rector (Bp. Moyer) and the Vestry members be removed. Presumably the Diocese believed that all of the property dispute issues would be moot if it could successfully oust the rector and Vestry members who they believed were actively engaged in separating Good Shepherd from the Diocese and/or the National Church.

In analyzing the Episcopal Church’s structure, the Court found that it is hierarchical in nature, with a National Church having authority over a diocese which, in turn, has authority over a parish. The Court found that the Vestry of Good Shepherd could be viewed as having taken action to attempt to sever Good Shepherd from both the Diocese and the Episcopal Church. The Court, in the previous case, also found that Bp. Moyer had been defrocked in 2002 and is without license to function as a priest in either the Diocese or the Episcopal Church. With consideration of the above findings, the Judge ruled that it is the will of the Petitioners to evict both Bp. Moyer and the Vestry members and that they had authority to do it. The Petitioners decided to oust Bp. Moyer and the Vestry members because of the very divergent theological and ecclesiastical views between the parties and the Court refused to get involved in those issues. As Bp. Moyer is no longer employed by either the Diocese or National Church, and the Diocese, within an hierarchical church, having control over its property, the Diocese simply has the authority to evict Bp. Moyer out of Good Shepherds rectory and remove the Vestry members from their positions.

Due to the Courts ruling, Bp. Moyer must vacate the rectory immediately, and the Vestry members must immediately step down. Like the knights who martyred St. Thomas, the Petitioners herein, with reference to Bp. Moyer and the Vestry members, can say “let us away this fellow will arise no more.”

Originally published on November 9, 2011 in “Upon Further Review” and can be found here.

Gross Decision (?)

In the 1964 Christmas television classic, Rudolph the Red-Nosed Reindeer, prospector Yukon Cornelius, while in search of silver and gold (or is it gold and silver?), declares that the frightful Abominable Snowmonster of the North, who evokes fear and trembling in anyone who sees him, “is nothing without his choppers,” after toymaker turned dentist, Hermey the Elf, extracts all of the monster’s teeth. Consistent with Yukon’s observation, the United States Supreme Court, with Justice Clarence Thomas writing for the majority, in the recent case of Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343 (U.S. 2009), in what has become a landmark decision, may have used its judicial pliers to extract the teeth of the Age Discrimination in Employment Act (ADEA) for claims brought thereunder by plaintiffs who feel they were victims of age discrimination.

In Gross, the Plaintiff was at the time of the alleged actionable discrimination, a 54-year-old male claims administrator director who had worked for the Defendant for 30 years when Defendant elected to reassign Gross to the position of claims project coordinator. Simultaneously, Defendant reassigned Gross’ former subordinate, a woman in her early forties, to a newly created position that carried with it most of Gross’ former responsibilities. Gross believed his reassignment to be effectively a demotion, and that he was discriminated against based on his age, and he brought suit against Defendant under the ADEA claiming age discrimination.

At the conclusion of the trial of this matter at the District Court level, the Judge, over Defendant’s objections, instructed the jury that a verdict must be entered against the Defendant if Gross proved, by a preponderance of the evidence, that Defendant demoted him and Gross’ age was the motivating factor in Defendant’s decision to demote him. The jury was further instructed that Gross’ age was a motivating factor if it played a part or role in the Defendant’s decision to demote him. In other words, if the Defendant’s motives were a mix of lawful and unlawful (e.g.: age discrimination) reasons for demotion, then a verdict would have to be entered against the Defendant. Finally, the jury was instructed that if the Defendant proved, by a preponderance of the evidence, that it would have demoted Gross regardless of age, a verdict would have to be entered against Gross. This portion of the jury instructions presumes that the burden of proof shifts from Gross, who has to prove that age was the motivating factor in Defendant’s decision, to Defendant, who has to prove that it would have demoted Gross regardless of his age.

Gross was victorious at the District Court level causing the Defendant to appeal to the United States Court of Appeals for the 8th Circuit. The Circuit Court reversed and remanded the District Court decision for a new trial as a result of what it found to have been improper jury instructions. Gross appealed to the Supreme Court of the United States.

The question presented to that Court was whether a case under the ADEA requires (1) a shifting burden of proof and (2) could successfully proceed when an employer takes a discriminatory action against an employee based upon mixed motives. By including these two elements when enunciating jury instructions, the District Court implicitly requested the jury to apply an analysis required for alleged discrimination pursuant to Title VII of the Civil Rights Act as interpreted by the landmark case Price Waterhouse v. Hopkins, 490 US 228 (1989). The Court first examined whether a shifting burden of proof is warranted under the ADEA. It then examined whether the ADEA allows for a claim of mixed motives or requires a “but-for” analysis, id est but for the plaintiff’s age, the employer would not have taken the alleged discriminatory action.

As the District Court’s jury instructions were an application of the requirements under Title VII of the Civil Rights Act, the primary focus of the Court’s analysis was a comparison of the language of the ADEA with that of Title VII. When making its comparison, the Court, through Justice Thomas’ opinion writing for the majority, also took note of the fact that Congress has amended both Title VII and the ADEA, with some amendments occurring simultaneously. Ultimately, Justice Thomas’ textual analysis of the respective statutes is actually quite simple. First, Justice Thomas observed that the ADEA contains absolutely no language regarding a shifting of burdens of proof while Title VII does have such language. Second, Justice Thomas also noted that the ADEA does not contain any language implying that proving that an employer acted with mixed-motives is sufficient to warrant a judgment in favor of an allegedly discriminated-against plaintiff. Instead, as Justice Thomas pointed out, the ADEA specifically says that a discriminatory act must be “because of” an individual’s age. After a somewhat extensive, and perhaps torturously overwrought, dictionary and linguistic examination of the phrase “because of,” Justice Thomas concluded that a “but for” analysis is consistent with the aforesaid language. Finally, Justice Thomas, attempting to divine the mental intent of the legislators responsible for amending and voting for the changes to the ADEA years in the past, suggested that since both Title VII and the ADEA were amended around the same time, and the mixed-motives language inserted into Title VII was not correspondingly inserted into the ADEA, a logical conclusion could be drawn that Congress did not want and/or intend the ADEA to allow claims to successfully proceed in cases involving mixed-motives.

Justice Stevens, in his dissent, argued that burden shifting, and, therefore, permitting mixed-motives cases, ought to be permitted under the ADEA as the ADEA was drafted, in haec verba, from Title VII and that Title VII analysis has, for quite some time, been commonly applied to the ADEA by the United States Supreme Court. Furthermore, he explained that the phrase “because of” does not require the rigid and exclusive meaning that is synonymous with “but for” applied by Justice Thomas. Justice Stevens argues that “because of” can certainly permit multiple motives, including a discriminatory one, but does not, on its face, require a single motive as Justice Thomas suggests. Justice Stevens also pointed out that the cases under ADEA have regularly allowed burden-shifting and mixed-motives cases and one cannot conjure some sort of presumption, through an attempt to divine significant meaning from a non-action by Congress, from Congress’ amending Title VII and the ADEA differently. Indeed, as burden-shifting and mixed motives cases were already permitted under the Court’s previous rulings, why would Congress need to codify it? Justice Stevens argues that Congress’ lack of action confirms their approval of existing case law under the ADEA. Justice Breyer, in his rather brief dissent, simply focused upon the fact that a requirement to prove “but for” with direct evidence is, at its core, a requirement to prove what someone else’s thoughts were; an impossible task even for the thinker himself, especially after so much time and influences come to pass after the suit has been filed. For Justice Breyer, a “but for” analysis requires a plaintiff to engage in finding proof of hypothetical thoughts; proof that, in reality, could never be found, and resulting in a toothless ADEA that could never be effectively employed by plaintiffs. For Justice Beyer, Congressional intent was to have an ADEA under which plaintiffs could have successful claims, as opposed to an ADEA that requires a plaintiff to prove the impossible, effectively foreclosing any viable actions for age discrimination.

Obviously, Justice Thomas’ opinion had less-than-favorable results for Gross. As Gross’s employer did not have to prove what its actual motive was for demoting him, and Gross could not prove that “but for” his age he would not have been demoted, Gross’s matter was remanded to proceed in a manner consistent with Justice Thomas’ opinion. In sum, pursuant to the current authoritative precedent described herein, a plaintiff bringing an action under the ADEA must prove, by a preponderance of the evidence, that his age was the only factor motivating the alleged discriminatory action through the presentation of direct evidence in order to have a successful suit. As it stands now, plaintiffs bringing suit under the ADEA are required to plunge their way into the nearly impossible task of entering someone else’s mind to learn how he made his decisions. The Gross decision could not have come at a worse time because the declining economy has impacted heavily on older employees, resulting in a substantial increase in ADEA claims being filed at the state and federal discrimination administrative agency level by impacted employees. It makes their task of proving discrimination far harder. Although there is an effort by interest groups acting on behalf of employees within the ADEA age purviews to have Congress enact a law that would repudiate Gross, that effort may not be successful, especially given the outcome of the latest Congressional elections and the current political makeup of Congress.

After Gross, Hermey the Elf’s advice about the once-fearsome, but now-toothless, Abominable Snowmonster holds equally true for employers when faced with the post-Gross ADEA: “don’t let this big blowhard scare you anymore, just walk right past him.”

This article also appeared in the Philadelphia Bar Association’s “Upon Further Review” on January 6, 2011 and can also be found here on my website.

Episcopalian In-fighting Spreads to Montgomery County Courthouse

In October 2008 a Montgomery County jury ruled in favor of former Episcopal Bishop of Pennsylvania, Charles E. Bennison, Jr., and against the Rev. David Moyer, Rector of the Episcopal Church of the Good Shepherd in Rosemont, Pennsylvania.

Fr. Moyer and Bp. Bennison have had long-standing theological differences with Fr. Moyer being a traditional Episcopalian and Bp. Bennison holding to extremely liberal theological positions.  Their dispute was more than a private one, but also affected their professional relationship.  For example, Fr. Moyer prevented the Bishop from visiting his Parish, as required by the Canons, because Fr. Moyer believed such action was necessary to defend the faith he swore to adhere to in his ordination vows, as he believed the Bishop would inevitably preach things outside the bounds of traditional Episcopal faith.

Their dispute came to a head in 2002 when Bp. Bennison deposed (i.e. defrocked) Fr. Moyer from the priesthood without a trial.  Bp. Bennison deposed Fr. Moyer under a church Canon allowing for removal of a priest based upon “abandonment of communion”.  This Canon does not provide for a church trial before removal.  It essentially permits a Bishop to summarily remove a priest if certain criterion are met that signify that the priest is no longer in communion with his bishop.  The essence of Fr. Moyer’s claim was that the Bishop’s removal of him as Rector and as a priest in the Episcopal Church was fraudulent when the Bishop used the “abandonment of communion” Canon as opposed to a more typical Canon such as “conduct unbecoming of clergy,” which requires a church trial before the removal of a priest. Fr. Moyer asserted that he never abandoned the communion of the church, and that the Bishop had a personal vendetta against him and was intent on removing him by any means possible. Fr. Moyer, finding no relief under Church Canons, in regard to his removal, brought a civil suit against the Bishop for the alleged fraud, among other things.

Along with the fraud claims, Fr. Moyer also attempted to turn his deposition from the priesthood by his ecclesiastical superior into a case of unlawful termination from his position by his employer, the Episcopal Church.  In so doing, the issue could be framed not as an interchurch squabble over obscure, perhaps medieval, Canons, but rather as an employment matter between an employee and employer and the work rules that govern their relationship. Work rules, handbooks, or work policies are generally viewed as terms of a person’s employment and violation of the same by an employer allows an employee to bring a claim against that employer for the said violation.  It could be argued that as a priest is merely an employee of a diocese (and, by extension, the national church), his bishop is his “boss” and the church Canons are analogous to work rules.  As a result, if one finds this sort of framing convincing, the dispute between Fr. Moyer and Bp. Bennison was not a dispute between a priest and his prelate over church Canons, but between an employee and his employer over work rules.

Despite attempting to frame this issue as an employment issue, the fact remains that the review of interchurch rules, policies, and decisions are protected by the free exercise clause of the First Amendment.  In order to ensure adequate protection under the First Amendment, while also allowing a Plaintiff such as Fr. Moyer an opportunity for redress, the fraud claim was established as the gateway claim.

Although Montgomery County Court Judge Joseph Smyth voiced his concern  that the lawsuit crossed the line from civil to church issues protected by the First Amendment, he permitted the case to proceed out of respect for the judge previously assigned to the case who had permitted the lawsuit to continue.  Although Fr. Moyer brought a variety of employment and civil claims against the Bishop in addition to the fraud claim, Judge Smyth, due to his First Amendment concerns, instructed the jury that if Fr. Moyer’s evidence did not meet the fraud burden of proof, all of his remaining claims must be dismissed.  Indeed, the Judge indicated that fraud had to “pervade” the Bishop’s decision-making process to depose Fr. Moyer in order for some or all of Fr. Moyer’s other claims to be successful.

After deliberation, the jury found that there was insufficient evidence that the Bishop committed fraud in his deposition of Fr. Moyer.  The jury’s decision can be interpreted as determining that the Bishop acted well within his rights under the Canons, despite the evidence presented by Fr. Moyer that the Bishop had a personal vendetta against him.

The conclusion to be reached from this lawsuit is that the First Amendment protects the actions taken within a religious body and the actions of the Bishop in deposing Fr. Moyer were not so egregious that the protections provided by the First Amendment would be insufficient.

This article was originally published in “Upon Further Review” and can be found here and on my website here.

Post Navigation