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May 20, 1992


The opinion of the court was delivered by: THELTON HENDERSON

 This matter came before the Court on defendants' Motion for Summary Judgment, which came on for hearing on Monday, May 18, 1992 at 10:00 a.m. After considering the parties' written and oral arguments, and for the reasons set forth below, it appears to the satisfaction of the Court therefrom that defendants' motion for summary judgment should be DENIED.


 There is no substantial dispute about most of the underlying facts in this case. Defendants are a church, a parochial school run by the church, and several church and school administrators. Plaintiff was employed by the school as a librarian.

 All employees of the school and church are required to be "born-again believers living a consistent and practical Christian life." They are required to sign a statement of faith, to commit themselves to the mission of the church (to instill fundamentalist christian values) and to commit themselves to a fundamentalist christian lifestyle that emulates the life of Christ.

 Although plaintiff was primarily employed as a librarian, throughout her employment she fulfilled various other roles as well. She had daily contact with students in her role as librarian, and although she was never a "teacher" in that she did not teach either religion or secular courses, she did work as a physical education teacher, a teacher's aid, and a child care worker at times in addition to her work as librarian. She had ultimate responsibility for managing the library and censoring the books brought into the school.

 Plaintiff sent her children to the school. Each year, when she re-enrolled them, she signed an affirmation agreement in which she agreed that she and her children would be bound by the moral values, codes, doctrines and beliefs of the church. When she became a school employee, she received a "handbook" and "manual" which detailed the school's and church's mission, her role in that mission as mentor and roll model, and repeatedly stressed that employees of the school were required to live a life in conformity with the fundamentalist beliefs of the church.

 It is undisputed that plaintiff was fired from her job as school librarian after she informed the administration that she was pregnant. Apparently, plaintiff was in the process of having one marriage annulled and was planning to marry her current husband at the time she became pregnant. She subsequently gave birth to a son, who is the child of her present husband, not the man she was married to at the time her son was conceived.

 There is substantial disagreement, however, as to one material fact in this case. Defendants originally asserted (in their motion to dismiss) that plaintiff was fired for the sin of being pregnant out of wedlock. They included a copy of her termination letter to prove that point. It states without equivocation that the reason for her termination was the fact that she was "pregnant without benefit of marriage", which condition was inconsistent with the religious values of the church and school. However, in their summary judgment motion, defendants -- for the first time -- assert that plaintiff's termination had nothing to do with her pregnancy. On the contrary, she was fired, they now allege, because the school learned that she was involved in an adulterous relationship (i.e., sexual relations with her "new" husband before she was divorced from her "old" husband). Her pregnancy was evidence of that adulterous relationship, they now allege, but had nothing to do with the religious reason for her termination.


 Summary judgment is appropriate when there is no genuine dispute as to material facts and the moving party is entitled to judgement as a matter of law. Jung v. FMC Corp., 755 F.2d 708, 710 (9th Cir. 1985); Fed. R. Civ. P. 56. Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1976). A dispute as to a material fact is "genuine" if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. The court may not weigh the evidence, and is required to view the evidence in the light most favorable to the nonmoving party. Id.

 A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion, and of identifying those portions of the pleadings and discovery responses which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Where the moving party will have the burden of proof on an issue at trial, she must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. However, on an issue for which her opponent will have the burden of proof at trial, the moving party can prevail merely by "pointing out to the District Court . . . that there is an absence of evidence to support the nonmoving party's case." Id.

 If the moving party meets its initial burden, the opposing party must then "set forth specific facts showing that there is some genuine issue for trial" in order to defeat the motion. Anderson, supra at 250; Fed. R. Civ. P. 56(e). A grant of summary judgment is reviewed de novo by the appellate court; a denial of summary judgment is reviewed for an abuse of discretion. United States v. 5,644,540 in U.S. Currency, 799 F.2d 1357, 1361 (9th Cir. 1986).

 As noted above, there is a dispute in the record as to the exact reason for plaintiff's termination. Therefore, the primary question before this Court is whether defendants' change in position raises material questions of fact which require resolution by a jury. Plaintiff apparently does not see a material difference between defendants' differing positions. However, it is apparent to this Court that defendants' "new" position -- that plaintiff was fired for adultery, and not on account of her pregnancy -- would not give rise to a Title VII claim. Congress has specifically exempted religious organizations from Title VII liability on the basis of religious discrimination. E. E. O. C. v. Pacific Press Publishing Ass'n, 676 F.2d 1272, 1276 (9th Cir. 1982); Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, et. al. v. Amos, 483 U.S. 327, 107 S. Ct. 2862, 97 L. Ed. 2d 273 (1987); see discussion infra at 7-12.

 However, defendants' "old" position -- that plaintiff was fired because she was pregnant and not married -- raises the possibility of sex discrimination. If Title VII does not apply to that decision, there would obviously be no material fact in dispute because plaintiff would not be entitled to relief under Title VII in either event. If Title VII does apply, however, the dispute as to the true basis for plaintiff's termination becomes material. Therefore, it is necessary to determine whether Title VII applies to a decision to fire plaintiff based on her pregnancy and whether that application overcomes First Amendment scrutiny.


 Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on sex. 42 U.S.C. §§ 2000e et. seq. ...

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