Moving Up the Naughty List: Level of Progressive Discipline Can Be Non-Discriminatory Reason, Says Eighth CircuitMany employers have progressive discipline policies. Are they always followed? Probably not. Should they be? Absolutely, and Lindeman v. St. Luke’s Hospital of Kansas City, a recent case in the Eighth Circuit, demonstrates that being able to point to the use of a progressive discipline policy can help dispose of an ADEA/ADA case.

The Facts

Todd Lindeman worked in St. Luke’s Hospital of Kansas City where the progressive discipline policy had varying penalties for each infraction: verbal warning for the first; written warning for the second; suspension or second written warning for the third; and termination for any subsequent infraction. After a change in his supervisors, Mr. Lindeman quickly moved through the discipline system, incurring three infractions in a four-month period. Finally, Mr. Lindeman violated the patient confidentiality policy and was terminated as a result of this fourth infraction.

Mr. Lindeman, who was over age 40 and suffers from obsessive compulsive disorder, attention deficit disorder, and bipolar disorder, filed suit under the ADA and the ADEA. St. Luke’s moved for summary judgment stating that the reason for his termination—disclosure of confidential information in violation of hospital policies—was a legitimate, nondiscriminatory reason. The burden then shifted back to Mr. Lindeman to show that the reason was pretextual. Mr. Lindeman claimed that two other employees also revealed the confidential information but were not terminated. The district court granted summary judgment, noting that Mr. Lindeman had not shown that the other two employees were at the last stage of the progressive disciplinary policy, as he was. Mr. Lindeman appealed, and the Eighth Circuit affirmed.

Moral of the Story: Follow Your Policy

This may seem like a minor case on a minor issue, but it again points to the gospel that we preach over and over: If you have a policy—enforce it and enforce it consistently. You may find a disciplinary system beneficial, as the hospital did here, to show a non-discriminatory reason for treating employees differently. But it only works if you use it properly.

A Political Entity Can Be Liable, No Matter How Small: Supreme Court Holds ADEA Still Applies to Small County EmployerCan small municipalities make decisions based on age? Not according to the United States Supreme Court, which recently resolved a circuit split on the question of whether the Age Discrimination in Employment Act (ADEA) applied to state and federal political entities with fewer than 20 employees. In Mount Lemmon Fire District v. Guido, a unanimous court found that the ADEA applies to all federal and state entities, regardless of the size of those entities’ workforce.

Mount Lemmon Facts and the Supreme Court’s Rationale

To resolve a budget shortfall, Mount Lemmon terminated its two oldest firefighters, both of whom were over age 40. Those firefighters filed suit in federal court, alleging their termination violated the ADEA. Mount Lemmon moved to dismiss the lawsuit, arguing the ADEA did not apply to it because it had fewer than 20 employees. The district court agreed. The Ninth Circuit Court of Appeals reversed the district court, finding that the ADEA applied. Because the Sixth, Seventh, Eighth, and Tenth Circuits previously found otherwise, the Supreme Court granted review of the case, siding with the Ninth Circuit’s interpretation of the ADEA.

By way of background, the ADEA initially applied to private sector employers with 20 or more employees. In 1974, Congress amended the ADEA to cover state and local governments. The amended ADEA defined a covered “employer” as:

[A] person engaged in an industry affecting commerce who has twenty or more employees . . . The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State.

Prior to the Mount Lemmon ruling, smaller political entities were able to argue that the numerical threshold of 20 employees for ADEA claim exposure applied to them as it did private employers. The Supreme Court rejected that argument, finding that the ADEA’s:

“two-sentence delineation, and the expression ‘also means’ at the start of the second sentence, combine to establish separate categories: persons engaged in an industry affecting commerce with 20 or more employees; and State or political subdivisions with no attendant numerosity limitation.”

The Supreme Court also found that the ADEA’s 20-employee threshold did not apply to federal employers either. Therefore, all political entities, regardless of size, are subject to potential ADEA claims.

Seven justices joined the opinion, which was authored by Justice Ruth Bader Ginsburg, with Justice Brett Kavanaugh not participating.

Takeaways

Although this case applies to small political subdivisions, it is a good reminder for everyone to be careful about potential age or other discrimination claims related to reductions in force. We don’t have any information on what criteria Mount Lemmon used to pick these two firefighters to lay off, but it probably was not their age. The fact that the terminated employees were the oldest in the department was likely a coincidence. So, when looking to save some money and balance the budget, employers need to keep an eye on whether the decisions look like discrimination (age or otherwise) and be sure they can defend the decisions. Your employment counsel can help.

Cue the Organ Music: Court Administers the Ministerial Exception to Music MinisterCan an organist really be considered a church minister? In a detailed and unique opinion, an Illinois federal court applied the First Amendment’s religious clauses to a church employee who claimed he had been discriminated against due to his age and national origin. While it is unlikely that many of us will confront such a factual situation, the case does provide some lessons about the importance of job descriptions and case-by-case factual inquiries.

The Demoted Organist

Since 1992, the Plaintiff, Stanislaw Sterlinski, was the Director of Music at St. Stanislaus Bishop and Martyr Parish in Illinois. In 2014, Sterlinski was demoted, and instead of running the music program (with all that entailed) he only played the organ at church functions. He was no longer full-time and lost his benefits. Sometime after the demotion, Sterlinski was fired. He subsequently filed suit against the Catholic Bishop of Chicago claiming he was demoted and then terminated because of age discrimination, national origin discrimination and retaliation.

The church moved to dismiss the claims based on the First Amendment ministerial exception. The court granted the motion as to the demotion from Director of Music, but permitted limited discovery on the question of whether Sterlinski’s organist job qualified as ministerial. The church filed for summary judgment claiming that as an organist Sterlinski was a minister and that the First Amendment protected the church’s employment decision because of the protection of freedom of religion. As such, the court’s main focus was on whether Sterlinski’s job counted as a minister and whether the functions he performed as an organist were ministerial in nature.

Does Music Matter?

The most interesting part of the court’s opinion is its detailed analysis of the role that music plays in church functions. Why did the court look at this? The court first noted that case law shows that the First Amendment grants a ministerial exception to employment discrimination laws; “ministers” cannot sue  a religious-institution employer for race, sex or other discrimination. The purpose of the exception is to ensure that “the authority to select and control who will minister to the faithful—a matter strictly ecclesiastical—is the church’s alone.” However, in this case, the applicability of that exception depended on whether Sterlinski’s job as an organist, and solely an organist, rose to the level of minister. In order to make this determination, the court had to figure out if music was such an essential part of worship that Sterlinski’s playing of it counted as ministering to the faithful.

In support of their claim that playing the organ at church functions was a ministerial function, the church presented an affidavit from the Office of Divine Worship that stated that music played and sung at Mass is never “simply music,” but is instead sung prayer. The church also submitted a church document specifically emphasizing the organ in worship, stating that the instrument is “accorded pride of place” due to its size and ability to generate emotion during worship. These pieces of evidence, coupled with the court’s deference to a religion’s own designation of what constitutes religious activity, were enough to sway the court that music plays a significant role in the church’s services.

Sterlinski countered these arguments by stating that he wasn’t allowed to pick the music played in the services and only “robotically played notes from sheet music.” He argued that these facts took him out of the role of ministerial function. On the first point, the court noted that his lack of choice in picking the music wasn’t that different from a priest being told what scripture to read based on a liturgical calendar. On the second point, the court cited several cases where accompanists were found to be performing ministerial functions even if they just played the notes on the page. The court noted again that official church doctrine establishes that music conveys a religious message and instrumentalists who play it are important ministers of the faith. Based on all these reasons, the court found that Sterlinski performed ministerial functions, even as only an organist, and therefore his suit could not proceed.

My Workplace Doesn’t Have an Organ, So Who Cares?

Understandably, this district court opinion will have a direct effect on a very small group of cases (if any). However, the court’s attention to detail and the evidence shows how important it is to have specific documents and testimony to back up an employment decision. Here, the church was able to provide specific evidence as to the importance of some of the job duties of the organist position.

As we preach (pun intended) from this blog all the time, be sure your employment decisions are consistent with your policies and your job descriptions. Nothing gives a lawyer more heartburn than to hear that an employer has no documentation to support an employment decision.

(Cue the sad organ music.)