United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON DEFENDANTS' MOTION TO BIFURCATE
Baker United States Magistrate Judge
are resisting efforts by Plaintiff Lynn Starkey to discover
facts she contends are vital to proving her claims. Earlier
in this case, Defendants filed a motion to stay the
proceedings pending an anticipated and potentially
controlling U.S. Supreme Court case. [Filing No.
12.] This Court thwarted that attempt with a marginal
entry. [Filing No. 21.] Defendants have now taken a
different approach. This time around, Defendants have filed a
motion to bifurcate discovery [Filing No. 25]
seeking to limit initial discovery to the issue of the
applicability of what is termed the “ministerial
exception” that provides First Amendment safeguards to
religious groups. Defendants' motion to bifurcate raises
a significantly closer question than did their motion to stay
proceedings. In the end, however, the result is the same:
discovery shall procced unbridled by bifurcation.
Hosanna-Tabor Evangelical Lutheran Church & Sch. V.
E.E.O.C., 565 U.S. 171 (2012), the Supreme Court
unanimously recognized the “ministerial
exception”-a First Amendment doctrine that bars certain
employment disputes between a religious organization and its
“ministers.” This doctrine protects
“religious groups in choosing who will preach their
beliefs, teach their faith, and carry out their
mission”-including within religious schools.
Id. at 194-96. Defendants terminated Starkey, a
homosexual female, from her position as Co-Director of
Guidance at Roncalli High School after learning Starkey was
in a same-sex union. In the pending motion to bifurcate,
Defendants assert that the Court must first address the
applicability of the ministerial exception, and that the
remainder of this case should be bifurcated unless and until
the Court deems this exception inapplicable.
cite numerous cases in support of their argument that
bifurcation is standard practice in ministerial exception
cases and that the exception is a threshold matter that must
be decided before merits-based discovery. Kirby v.
Lexington Theological Seminary, 426 S.W.3d 597, 608-09
(Ky. 2014); Sterlinski v. Catholic Bishop of
Chicago, No. 16-C-00596, 2017 WL 1550186, at *5 (N.D.
III. May 1, 2017); Herzog v. St. Peter Lutheran
Church, 884 F.Supp.2d 668, 671 (N.D. III. 2012);
Grussgott v. Milwaukee Jewish Day Sch. Inc., 260
F.Supp.3d 1052, 1053 (E.D. Wis. 2017); Collett v.
Archdiocese of Chicago, 200 F.Supp.3d. 730, 735 (N.D.
III. 2016); Lishu Yin v. Columbia Int'l Univ.,
No. 3:15-CV-03656-JMC, 2017 WL 4296428, at *4 (D.S.C. Sept.
28, 2017); Miller v. Intervarsity Christian
Fellowship/USA, No. 09-CV-680 SLC, 2010 WL 2803123, *2
(W.D. Wis. July 14, 2010); Stabler v. Congregation
Emanu-El of the City of New York, No. 16 CIV.9601 (RWS),
2017 WL 3268201, at *7 (S.D.N.Y. July 28, 2017); Fassl v.
Our Lady of Perpetual Help Roman Catholic Church, No.
CIV.A. 05-CV-0404, 2005 WL 2455253, at *1 (E.D. Pa. Oct. 5,
2005); Demkovich v. St. Andrew the Apostle Parish,
343 F.Supp.3d 772, 786-87 (N.D.III. 2018). And as Defendants
correctly note, Starkey offers scant case law in response to
none of these decisions is binding on this Court. Moreover, a
closer look at the foregoing cases reveals they are not as
formidable on individual inspection as they may appear at
first blush to be collectively. For example,
Kirby's relevant holding is based on Kentucky
law. Kirby, 426 S.W.3d 597 at 608-09. In
Sterlinski, No. 16-C-00596, 2017 WL 1550186, at *5,
it is not clear that the parties even requested bifurcation,
and the discovery the court authorized included expert
witness discovery. In Herzog, 884 F, Supp. 2d at
671, the court limited discovery, but this discovery included
written discovery, affidavits, and multiple depositions. In
Grussgott, 260 F.Supp.3d at 1053, the parties agreed
to limit discovery, so that case has no applicable legal
holding. Likewise, in Collett, 200 F.Supp.3d. at
735, the court denied a motion to dismiss that raised the
ministerial exception and set a status conference to address
limited discovery and dispositive motions. In
Lishu,, No. 3:15-CV-03656-JMC, 2017 WL 4296428, at
*4-6, and Miller, No. 09-CV-680 SLC, 2010 WL
2803123, at *2, the courts simply ordered limited discovery
without any discussion whatsoever of bifurcation. In
Stabler, No. 16 CIV.9601 (RWS), 2017 WL 3268201, at
*7, the court ordered the parties to meet and confer
regarding the scope of discovery. In Fassl, No.
CIV.A. 05-CV-0404, 2005 WL 2455253, at *1, the court limited
discovery, but the court also noted that apparently neither
side conducted any discovery. Finally, in Demkovich,
343 F.Supp.3d at 786-87, bifurcation or limited discovery was
not even at issue. The Demkovich court had
previously found plaintiff to be a minister for purposes of
the ministerial exception, and instead the issue was whether
the exception could be extended to hostile work environment
claims. Id. at 778. Thus, while the foregoing cases
support Defendants' argument for limited discovery, they
are far from conclusive on the bifurcation issue.
than addressing these cases head on, Starkey directs her
arguments against bifurcation elsewhere. For example, Starkey
argues that even if the ministerial exception applied, it
would not bar all of her claims, noting that the Seventh
Circuit has not decided whether the ministerial exception
bars Title IX claims. [Filing No. 34, at ECF p. 5.]
Starkey also contends that evidence of pretext related to the
ministerial exception will be “intertwined” with
general discovery. [Filing No. 34, at ECF p. 8.] And
perhaps most interesting, Starkey submits as an exhibit an
email chain to support the contention that “Defendants
even admitted in 2016 that school counselors are not covered
by the ministerial exemption.” [Filing No. 34, at
ECF p. 5; Filing No. 34-1, at ECF Ex. A.] Defendants do
their best to counter each of these arguments. They point
out, for instance, that other courts have held that the
ministerial exception bars Title IX claims. See Petruska
v. Gannon University, No. 1:04-cv-80, 2008 WL 2789260,
at *4 (W.D. Pa. Mar. 31, 2008.) And Defendants take issue
with Starkey's reliance on the email chain, contending
that Starkey cites this out of context and that a careful
reading of the emails reflects that the Archdiocese viewed
Starkey as a minister. Perhaps so, but the email string
undeniably states that, according to legal counsel, school
counselors “do not meet the definition for the
ministerial exemption.” [Filing No.34-1 at ECF p. 3.]
Thus, Starkey's arguments against bifurcation carry some
however, the Court is struck by what appear to be significant
and material disputes in the facts underlying Starkey's
duties with the Archdiocese. As a consequence of these
disputes, the applicability of the ministerial exception is
very much up in the air at this juncture. The materiality of
these disputes is best illustrated by the parties'
respective descriptions of Starkey's job duties, which
the Court sets forth verbatim below.
describe Starkey's duties as follows:
Plaintiff Lynn Starkey worked for Defendants for over
thirty-nine years in various capacities, including as a
religion teacher, music teacher, drama teacher, choral
director, guidance counselor, and Co-Director of the Guidance
Department. Each year, she was employed pursuant to a
one-year employment contract that expired at the end of the
school year. In the latest school year, Ms. Starkey was
employed as Co-Director of Guidance at Roncalli. Compl.
¶ 13; Answer ¶ 13. She was also a member of the
school's Administrative Council, which was a position of
leadership within the school.
As Co-Director of Guidance, Ms. Starkey was designated in her
written employment contact as a “a minister of the
faith.” Ministry Description - School Guidance
Counselor ¶ II, attached as Exhibit 1; see
2018-2019 School Guidance Counselor Ministry Contract -
Roncalli High School ¶ 4, attached as Exhibit 2
(incorporating the Ministry Description document into the
contract). The very first “Role” identified in
the description of her ministry was to “Facilitat[e]
Faith Formation” in her students the following ways:
1. Communicat[ing] the Catholic faith to students and
families through implementation of the school's guidance
curriculum…[and] offering direct support to individual
students and families in efforts to ...