Lawsuits Among Believers and the LCMS Hosanna-Tabor Decision Part 3

When I left off with Part 2 of this series, Hosanna-Tabor instructor  Cheryl Perich had taken a disability leave, been diagnosed, treated, and gotten competent medical opinion that she could fully resume her duties as of Feb 22, 2005. While she was on disability leave the school administration hired a substitute teacher for the full 2005 winter/spring term and took steps with the net effect being that Perich would not have a job when she came off disability leave.

This installment covers the balance of the timeline through Cheryl’s termination by the school followed by how this case might impact members of the body of Christ.

Feb 22, 2005:

• Perich presents herself at the school for 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.

The big concern I have is the school “asked that (Perich) continue her leave to allow the congregation a chance to develop a possible plan for her return.” The record clearly shows that Perich’s disability insurance required her to return to work when she was medically cleared to do so – which was Feb 22, 2005. For the school to ask her to “continue her leave” raises the question of “With what justification? And who is going to pay for it?” If Perich’d tried to remain on disability leave past the legal bounds of her health care plan, that’d be insurance fraud. Had she taken an unpaid leave of absence, this would’ve let the school off the hook at her expense. And if the school was offering her a paid leave of absence, that certainly sounds reasonable. In all these circumstances, could Perich taking leave been construed as vacating her position?

Unfortunately the court record does not detail what form of leave the school expected Perich to take or who would’ve picked up the tab. Whatever it was clearly was not acceptable to Perich.

What I see here is that Perich was attempting to comply with the school handbook requirements while the school administrators are doing everything in their power to stop her and get her to ‘resign’. I have little doubt that if Perich had left the school without documentation that she’d presented herself for work the administration would’ve tried to claim that she had “vacated” the position. (Note 1).

Finally, I’m not sure what “improper notification of her return to work” means because the school administration had almost three months notice that Perich would be ready to return to work in mid/late Feb. She’d also declined to resign as of Feb 21, 2005.

Continuing –

• Later that day  Perich spoke with (school principal) Hoeft over the phone.
• Hoeft told Perich that she would likely be fired,

In other words do what the handbook says and you’ll be fired for it.

• 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.

This is the first time that Perich raised the possibility of suing the school for discrimination, and she only did it after she’d been threatened with being fired.

• 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).

Looking at this from a strictly rational perspective, I’m not sure what the school board was expecting from Perich. The school handbook detailed what was expected from its teachers when their disability leave ended, she did her best to follow through, the school board tries to change the rules to get her to quit, and somehow it’s her conduct that is “regrettable”?

On the other hand, if the school board was trying to force Perich out, then the language makes perfect sense. Clearly the school board was manipulating circumstances such that, no matter what Perich did she would either be in the wrong or out of a job. Ultimately the school board’s threat to fire Perich succeeded in provoking her to file a lawsuit against them. In this manner they got her to do the one thing they could claim was such a gross violation of Christian doctrine that it was absolute grounds for her dismissal.

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.

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To start with – this case was never about the government foisting a minister on a church – it was about a church that abused its position in order to oust a teacher from employment after she went on disability leave and then trying to use the ministerial exception to cover their legal tracks.

Second, if the LCMS was serious about dispute resolution and ecclesiastical jurisprudence then this case never would’ve gotten to the courts. For all the wailing and gnashing of teeth about “Christians not suing Christians” and “not following the dispute resolution process”, the school board didn’t cite the LCMS dispute resolution process in any of their correspondence with Perich. Their position was “we’ve decided, you’re gone, and we’re willing to do whatever it takes to get you out out of here.” In addition, not only did the LCMS fail to step in and work to resolve the suit, it joined with the school against Perich. 

Third, as this series of articles has documented, the public narrative that Perich was fired for “insubordination”, “disruptive behavior”, and breaching Christian doctrine is in itself a breach of the Lutheran understanding of the 8th commandment:

Thou shalt not bear false witness against thy neighbor. What does this mean? We should fear and love God that we may not deceitfully belie, betray, slander, nor defame our neighbor, but defend him, speak well of him, and put the best construction on everything.

Given that the text of the SCOTUS decision supports this narrative while making no mention made of the preceding circumstances means that Cheryl Perich’s name will continue to be illegitimately besmirched while the school board that bullied her out of her position appear to come up smelling like roses.

Fourth, from the analysis I’ve read Perich had a good chance of winning a case of disability discrimination and retaliation by the school board IF she had been a straight employee and not a commissioned minister. This leads to the question of why commissioned ministers should have less protections from medical issues, abuse, and mistreatment than non-ministers? And why on earth would the church support that abuse?

Finally, for all the thankfulness that President Harrison and the LCMS administration have made for this decision, they left out some critically important aspects of this decision – namely that it effectively gives every religious institution almost absolute protection to do whatever they want while stripping every “minister” of the protection of neutral laws of general applicability.

From THE IRONY OF HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCH AND SCHOOL V. EEOC

The second problem with this distinction is that it results in a free exercise jurisprudence that provides more protection for religious institutions than it does for religious individuals.The combination of Smith and Hosanna-Tabor means that religious individuals have absolutely no protection from neutral laws of general applicability, even if the laws bar them from participating in a sacrament (the Smith rule), while religious institutions may be protected absolutely, even if their acts have no religious basis (the ministerial exception approved by Hosanna-Tabor).

Furthermore, the implications of this decision should scare the wits out of any church worker that thinks they have the protection of the rule of law. It should certainly quiet anyone celebrating this decision:

Furthermore, the Court’s acceptance of the school’s all-litigious ministers-are-spiritually deficient argument suggests that religious employers now have carte blanche to retaliate with impunity. A church may be able to dismiss as insubordinate and spiritually unfit a minister who threatens to sue after the church breaches its contract and fails to pay the agreed-upon salary. A church may also be able to terminate without interference a minister who helps a colleague file a sexual harassment claim. Likewise, a church, religious school, or religious hospital may be able to fire as insubordinate and spiritually unfit a minister who reports any wrongdoing, whether it be discrimination, embezzlement, or the sexual abuse of children.

What this means is that if a pastor working under US law raised concerns about the way the church body was conducting its business and that it might be illegal and/or unChristian and reported the matter to the appropriate authorities or sued the church in court, the church could remove them from their call and they’d have absolutely no way to defend themselves. If the church operated an extension fund that went bankrupt as the result of fraud and a church-worker joined with the representative action in order to recover funds, they also could lose their position for the crime of “suing another Christian.”

Is this really the kind of justice and righteousness we see in the church of Scripture?

Furthermore:

If a church has an absolute right to select its ministers, it is not clear why the result would be different if it wished to fire a whistle-blower minister or a minister who brought a breach of contract suit rather than a discrimination suit. In short, letting a religious organization claim that any minister who insists on compliance with the law is spiritually unfit creates a potentially limitless loophole and allows it to be “a law unto itself.”

Is this what the people celebrating this decision really want?

I’ll have some closing thoughts in my next installment.

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Note 1: This is exactly what the Lutheran Hour did to Dr Wally Schultz after he ruled that the LCMS Atlantic District President Dr Benke was guilty of the charges filed against him after he participated in an interfaith prayer service at Yankee Stadium after 9/11. While the LHM tried to get Dr Schultz to recuse himself from the case, Dr Schultz declined to do so and performed the duties of his LCMS office. After Dr Schultz handed down his decision the LHM accused him of violating the League’s conflict of interest and Code of Ethics policies and added stipulations to his continued employment. Dr Schultz could not agree to these stipulations and as a result the LHM deemed Dr Schultz to’ve “vacated” his position.

In essence, the LHM – a RSO of the LCMS – decided that holding a position in the LCMS executive branch and deciding cases in accordance with LCMS policy was incompatible with his service as the LHM speaker.  More on this later.