Lawsuits Among Believers and the LCMS Hosanna-Tabor Decision Part 1

In “CEF/DIL: Lawsuits Among Believers” I discussed the way the Lutheran-Church Canada has responded to the CEF offence in general and how some people are trying to use  1 Corinthians 6:1-8 to silence aggrieved parties from seeking redress without lifting a finger to provide a mechanism to resolve those disputes and so see that justice and righteousness is done within the body of Christ.

In this article I’m going to take a look at a case that took place in the LCMS and went all the way to the US Supreme Court. This case started with a teacher who suffered an unknown medical ailment, went on medical leave in order to get diagnosed and treated, and what happened next. According to a blog page on the

In the case, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, et al., a former commissioned-minister (teacher) at the now-closed Hosanna-Tabor school sued the school after she was dismissed in 2005 for “insubordination and disruptive conduct in violation of church teaching,” according to Hosanna-Tabor’s Petition for Certiorari.
The fourth-grade teacher, Cheryl Perich, sued the congregation for disability discrimination, claiming the church rescinded her call as a commissioned minister because of her narcolepsy, a sleep disorder that typically causes excessive daytime sleepiness.

LCMS President Harrison stated on the same blog page:

Speaking Jan. 11 on behalf of The Lutheran Church–Missouri Synod, President Rev. Dr. Matthew C. Harrison said, “We are delighted with the opinion issued by the U.S. Supreme Court in the Hosanna-Tabor case today. The Court, in upholding the right of churches to select their own ministers without government interference, has confirmed a critical religious liberty in our country.

It is said that history is written by the victors, and from reading this blog post one could get the impression this was an open-and-shut case of an uppity employee trying to use the courts to stop the school from firing her.

The truth of the matter is a bit different. The following summary is based on a combination of the United States Court of Appeals, Sixth Circuit. (9 Mar, 2010) decision  and the SCOTUS decision (Page 3 and following). This summary relies almost exclusively on the Court of Appeals decision as it has substantially more information than the SCOTUS decision and presents the circumstances of the case in a completely different light vs that of the SCOTUS decision and the LCMS blog page. (Update 2018-03-11: I’ve found more details in Bloomberg Law and have included them as well).

An opening note: Hosanna-Tabor did not require its teachers to be called or even Lutheran. Non-Lutheran teachers had identical responsibilities as Lutheran teachers, including teaching religion classes and leading chapel service.

Jul 1999: 

  • Hosanna-Tabor hires Cheryl Perich as a contract teacher

Mar 29, 2000: 

  • Hosanna-Tabor hires Cheryl Perich as a called teacher
  • Called teachers are hired on an open-ended basis and cannot be summarily dismissed without cause.

Jun 2004:

  • At a church golf outing Perich suddenly became ill and was taken to the hospital.
  • She underwent a series of medical tests to determine the cause.

Aug 2004:

  • Perich’s doctors had not reached a definitive diagnosis by August, and Hosanna-Tabor administrators suggested that Perich apply for a disability leave of absence for the 2004-2005 school year.
  • Stacy Hoeft – the principal of Hosanna-Tabor – informed Perich that she would “still have a job with [Hosanna-Tabor]” when she regained her health.
  • Perich agreed to take a disability leave and did not return to work at the beginning of the 2004-2005 school year.
  • Throughout her leave, Perich regularly provided Hoeft with updates about her condition and progress.

Nov 2004:

  • The Board of Directors began making plans to fill Perich’s position.
  • The Board first decided to combine three grades into one classroom with one teacher and one part time teaching assistant.

Dec 16, 2004:

  • Perich informed Hoeft by email that her doctor had confirmed a diagnosis of narcolepsy and that she would be able to return to work in two to three months once she was stabilized on medication.

Jan 10, 2005:

  • In response to teacher and parent complaints concerning the stress of teaching three grades with one teacher, the Board hired a long-term substitute for Perich.
  • Hoeft notified Perich of the Board’s decision.

Jan 19, 2005:

  • Hoeft asked Perich to begin considering and discussing with her doctor what she might be able to do upon return.
  • Perich responded the same day that she had discussed her work day and teaching responsibilities with her doctor, and he had assured her that she would be fully functional with the assistance of medication.

Jan 21, 2005:

  • Perich reiterated this sentiment with additional explanation.
  • Hoeft informed Perich that the school board intended to amend the employee handbook to request that employees on disability for more than six months resign their calls to allow Hosanna-Tabor to responsibly fill their positions.
  • Such resignations would not necessarily prevent reinstatement of these employees’ calls upon their return to health.
  • Perich had been on disability for more than five months when she received this email.

Jan 27, 2005:

  • Perich wrote to Hoeft that she would be able to return to work between Feb 14 and Feb 28, 2005.
  • Hoeft responded with surprise, because Perich had indicated a few days before that she had been unable to complete her disability forms because of her condition.
  • Hoeft expressed concern that Perich’s condition would jeopardize the safety of the students in her care.
  • Hoeft also indicated that Perich would not be teaching the third and fourth grades upon return, because the substitute teacher had a contract that ran through the end of the school year, and the third and fourth grade students had already had two teachers that year and having a third would not provide a good learning environment for them.

Jan 30, 2005:

Hosanna-Tabor held a meeting of its congregation. At that meeting

  • Hoeft and the school board expressed their opinion that it was unlikely that Perich would be physically capable of returning to work that school year or the next.
  • The congregation offered Perich a peaceful release wherein Perich would resign her call in exchange for the congregation paying for a portion of her health insurance premiums through Dec 2005.

Feb 7, 2005:

  • the Board selected Chairman Scott Salo to discuss this proposal with Perich.

Feb 8, 2005: 

  • Perich’s doctor gave her a written release to return to work without restrictions on Feb 22, 2005

Feb 9, 2005:

  • Salo contacted Perich to discuss her employment.
  • Perich instead requested to meet with the entire school board.

Feb 13, 2005:

  • The Board presented the peaceful release proposal,
  • Perich responded by presenting her work release note.
  • The Board continued to express concerns about Perich’s ability to supervise students for the entire day.
  • Perich explained that, as of her doctor’s release on February 22, 2005, she would no longer be eligible for disability coverage and would be required to return to work.
  • The Board, continued to request that Perich resign and asked her to respond to the peaceful release proposal by February 21, 2005.

Feb 21, 2005:

  • Shortly after 9PM Perich emailed Hoeft to confirm that she had decided not to resign from her position and that she planned to return to work in the morning.

Feb 22, 2005:

  • Perich presents herself at the school to work.
  • Because the school handbook states that failure to return to work on the first day following the expiration of an approved medical leave may be considered a voluntary termination, Perich refused to leave school grounds until she received a letter acknowledging that she appeared for work.
  • Perich received a letter signed by Hoeft and Salo, which said that Perich had provided improper notification of her return to work and asked that she continue her leave to allow the congregation a chance to develop a possible plan for her return.
  • Perich took the letter and left the premises.
  • Later that day  Perich spoke with Hoeft over the phone.
  • Hoeft told Perich that she would likely be fired,
  • Perich told Hoeft that she would assert her legal rights against discrimination if they were unable to reach a compromise.
  • Perich asked Hoeft to transmit that information to the Board.
  • Perich also sent Hoeff an email stating that her doctor had reaffirmed that she was healthy and ready to return to work.
  • Following a Board meeting the same day, Salo sent Perich a letter describing Perich’s conduct as “regrettable” and indicating that the Board would review the process of rescinding her call based on her disruptive behavior. (Dist. Ct. R.E. 22 Ex. B).

Mar 19, 2005: Salo sent Perich a follow-up letter stating that,

  • based on Perich’s insubordination and disruptive behavior on February 22, 2005, the Board would request rescinding Perich’s call at the next voter’s meeting on April 10, 2005.
  • Perich had “damaged, beyond repair” her working relationship with Hosanna-Tabor by “threatening to take legal action,” and it laid out the voting procedure by which the congregation could depose a called minister. (Dist. Ct. R.E. 24 Ex. 1).
  • proposing a peaceful release offer and gave Perich until April 8, 2005 to accept the offer.

Mar 21, 2005: Perich’s lawyer sent a letter to Hosanna-Tabor’s lawyer

  • stating that Hosanna-Tabor’s actions amounted to unlawful discrimination.
  • asking Hosanna-Tabor to respond seeking an amicable resolution to the matter, or else Perich would be forced to bring a lawsuit or file a complaint with the EEOC.

Apr 10, 2005:

  • The Hosanna-Tabor congregation voted to rescind Perich’s call

Apr 11, 2005:

  • Salo informed Perich of her termination.

This summary concludes here as I’m only concerned with events leading to Perich’s termination from the Hosanna-Tabor school. In the following article(s) I’ll offer an analysis of what happened, why it happened, and what that could mean for the church.

Update 2018-03-11: Right after posting this I found citations on SCOTUSblog which in turn had a citation to Bloomberg Law with more detail:

  • The LCMS personnel manual, which includes EEOC policy, and the Governing Manual for Lutheran Schools clearly contemplate that teachers are protected by employment discrimination and contract laws.
  • None of the letters that Hosanna-Tabor sent to Perich throughout her termination process reference church doctrine or the LCMS dispute resolution procedures.

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