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Janet Herzog v. St. Peter Lutheran Church

August 1, 2012


The opinion of the court was delivered by: Charles P. Kocoras, District Judge:


This matter comes before the Court on Defendants St. Peter Lutheran Church (the "Church") and St. Peter Lutheran School's (the "School") (collectively, "St. Peter") motion to dismiss Plaintiff Janet Herzog's ("Herzog") complaint pursuant to Federal Rule of Civil Procedure 12(b)(1). For the reasons stated below, St. Peter's motion is converted to a motion for summary judgment and is granted pursuant to Federal Rule of Civil Procedure 56.


This case arises out of alleged employment discrimination by St. Peter, a Lutheran church and parochial school. Between August 1987 and June 2009, Herzog was employed as a teacher at St. Peter. St. Peter employs both "lay teachers" and "called teachers." A called teacher at St. Peter is regarded as having been "called" to her vocation by God. Before becoming a called teacher, an individual must attend theological courses at a Lutheran academic institution. The Missouri Synod, the governing body for Lutheran churches, considers called teachers to be Ministers of Religion.

Herzog began her employment at St. Peter as an elementary school lay teacher in 1987. Thereafter, Herzog enrolled at Concordia College, a Lutheran institution, where she studied the canons and doctrines of the Lutheran church. After completing her studies at Concordia College, St. Peter's congregation voted to extend Herzog a "call of the Ministry" in August 1988. Upon accepting St. Peter's invitation, Herzog was commissioned as a called teacher in a ceremony at the Church. As a called teacher, Herzog received a Minister of Religion Commissioned Diploma of Vocation ("Diploma of Vocation"), which provided that she "perform all duties of [her] office according to the Word of God and the confessional standards of the Evangelical Lutheran church as drawn from the Sacred Scriptures and contained in the Book of Concord." Herzog also received a Supplement to the Diploma of Vocation, which provided that as a called teacher, Herzog was expected to "teach faithfully the Word of God, the Sacred Scriptures in its truth and purity as set forth in all the symbolic books of the Lutheran church."

Herzog's status as a called teacher included certain benefits, including a pay increase and a special exemption on her income taxes that were available to ministerial employees. At the beginning of each academic year, Herzog would re-affirm her call at a ceremony at the Church, and she maintained her called status throughout her employment.

Herzog taught her students a variety of secular subjects. Spelling, reading, and English lessons were held five days per week; social studies and science were held two to three days per week; and art classes were held once or twice per week. Herzog used secular textbooks to teach each of these subjects and maintains that she did not incorporate religious principles into these classes. Although approximately half of the students at St. Peter were not Lutheran, the St. Peter Lutheran Church School Board Handbook required that its called teachers integrate Christian instruction into the study of every subject. In this vein, every science textbook included a sticker on the inside cover providing that, in the event of a conflict between the materials in the book and the tenets of the Lutheran faith, teachers at St. Peter would teach the Lutheran perspective. Herzog never encountered such conflicts in her teaching career.

In addition to these secular subjects, Herzog also held religion classes four days per week. Herzog maintains that she led religion classes by following the instructions in the teaching manuals accompanying the religion textbooks. On the day that Herzog did not hold religion classes, she attended church services with her class. Herzog and her students prayed at the beginning and end of each school day. Additionally, Herzog annually volunteered her class to lead a church service and guided, instructed, and prepared her class for that service.

St. Peter's Divine Call Policy provides that the right to dismiss called teachers is vested in the Voters Assembly of the Congregation of the Church (the "Voters Assembly"). When a reduction in force is called for, the final recommendation as to which teachers should be selected for termination are to be made by the School Board and approved by the Voters Assembly. St. Peter's written policies prohibit discrimination based on sex or age.

In June 2009, St. Peter's Principal Bruce Rudi ("Rudi") allegedly proposed to terminate Herzog's employment to the Voters Assembly and told Herzog that his decision was based on budget constraints. On January 17, 2010, the Voters Assembly approved Herzog's termination. Two weeks later, St. Peter terminated Herzog's employment.

On October 31, 2011, Herzog filed an amended complaint alleging employment discrimination based on age, sex, and marital status in violation of federal and state law. St. Peter filed a motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). St. Peter's motion is based on the "ministerial exception," which provides that a court lacks jurisdiction to intrude into matters of a church's self-governance.*fn1

The Supreme Court recently considered the applicability of the ministerial exception to claims of employment discrimination by a teacher at a parochial school. Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 132 S.Ct. 694 (2012). The Court stayed briefing on St. Peter's motion to dismiss pending the Supreme Court's decision. Now that the Supreme Court has spoken definitively on the issue, we consider the merits of St. Peter's motion to dismiss.


A. Characterization of St. ...

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