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Elvig v. Calvin Presbyterian Church

United States Court of Appeals for the Ninth Circuit

October 8, 2003, Argued and Submitted, Seattle, Washington ; July 23, 2004, Filed

No. 02-35805


 [*953]  FISHER, Circuit Judge:


Plaintiff Monica L. McDowell Elvig ("Elvig"), an ordained Presbyterian minister, brought claims under Title VII against her employer Calvin Presbyterian Church, North Puget Sound Presbytery (together the "Church") and her supervisor Pastor Will Ackles (collectively "Defendants"), alleging that she was sexually harassed and retaliated against by [**2]  the Defendants. The district court dismissed Elvig's complaint, concluding that her Title VII claims fell within the scope of the so-called "ministerial exception" to Title VII. ] This exception saves Title VII from unconstitutionality under the First Amendment by requiring that Title VII suits be dismissed when they would impermissibly encroach upon the free exercise rights of churches or excessively entangle government and religion.

Applying our decision in Bollard v. California Province of the Society of Jesus, 196 F.3d 940 (9th Cir. 1999), we reverse and remand. ] Under the ministerial exception, a church's decisions about whom to employ as a minister are protected by the First Amendment. Thus to the extent Elvig's sexual harassment and retaliation claims implicate the Church's ministerial employment decisions, those claims are foreclosed. Nonetheless, Elvig has stated narrower and thus viable sexual harassment and retaliation claims that do not implicate protected employment decisions. Elvig's sexual harassment claim can succeed if she proves that she suffered a hostile work environment and if the Defendants do not prove that Elvig unreasonably failed to take advantage [**3]  of available measures to prevent and correct that hostile environment. Elvig's retaliation claim can succeed if she proves that she suffered retaliatory harassment -- here, in the form of verbal abuse and intimidation -- because of her complaints to the Church and the U.S. Equal Employment Opportunity Commission ("EEOC"). Should the Church be found liable on either of these claims, Elvig may recover damages for consequent emotional distress and reputational harm. Within this frame-work, Elvig's Title VII suit can provide her with redress for sexual harassment and retaliation without attaching liability to ministerial employment decisions protected by the First Amendment.


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375 F.3d 951 *; 2004 U.S. App. LEXIS 15285 **; 94 Fair Empl. Prac. Cas. (BNA) 206; 85 Empl. Prac. Dec. (CCH) P41,702


Subsequent History: Related proceeding at Elvig v. Ackles, 123 Wn. App. 491, 98 P.3d 524, 2004 Wash. App. LEXIS 2208 (2004)

Rehearing, en banc, denied by Elvig v. Calvin Presbyterian Church, 2005 U.S. App. LEXIS 2235 (9th Cir. Wash., Feb. 11, 2005)

Prior History:  [**1]  Appeal from the United States District Court for the Western District of Washington. D.C. No. CV-02-00626-BJR. Barbara Jacobs Rothstein, District Judge, Presiding.

Disposition: Reversed and remanded.


Church, harassment, ministerial, religious, sexual harassment, decisions, employment action, affirmative defense, tangible, secular, entanglement, vows, retaliation, alleges, termination, employment decision, ecclesiastical, discovery, district court, implicated, circulate, sexual harassment claim, hostile environment, retaliation claim, retaliatory, discipline, religious doctrine, subjected, sexual, personal information

Business & Corporate Compliance, Protection of Rights, Federally Assisted Programs, Civil Rights Act of 1964, Constitutional Law, Fundamental Freedoms, Freedom of Religion, Establishment of Religion, Bill of Rights, General Overview, Free Exercise of Religion, Labor & Employment Law, Discrimination, Title VII Discrimination, Civil Procedure, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, Judgments, Pretrial Judgments, Judgment on Pleadings, Appeals, Standards of Review, De Novo Review, Subject Matter Jurisdiction, Federal Questions, Jurisdiction, Federal Questions, Jurisdictional Sources, Constitutional Sources, Jurisdiction Over Actions, Responses, Motions to Dismiss, Harassment, Religious Harassment, Sexual Harassment, Burdens of Proof, Scope & Definitions, Sexual Harassment, Federal & State Interrelationships, Religious Discrimination, Employee Burdens, Covered Employees & Employers, Religion Defined, Defenses, Religious Organization Exemption, Employee Burdens of Proof, Employment Practices, Antiharassment Policy, Employer Liability, Hostile Work Environment, Torts, Vicarious Liability, Employers, Activities & Conditions, Unfair Labor Practices, Employer Violations, Interference With Protected Activities, Congressional Duties & Powers, Census, Composition of United States Congress, Actionable Discrimination, Collective Bargaining & Labor Relations, Federal Preemption, Primacy of Labor Policy, Freedom of Speech, Obscenity, Retaliation, Civil Rights Law, Contractual Relations & Housing, Equal Rights Under the Law (sec. 1981), Remedies, Remedies, Damages, Compensatory Damages, Pain & Suffering, Emotional Distress, Award Calculations, Amendments, Methods of Discovery, Depositions, Oral Depositions, Discovery & Disclosure, Discovery, Stipulations, Relevance of Discoverable Information