Age Discrimination Cases

Directed verdict; wage discrimination; Ohio's Equal Pay Act; R.C. 4111.17; age discrimination; disparate treatment; disparate impact; prima facie case; indirect evidence; R.C. 4112.02; de novo. Judgment affirmed. The trial court's grant of appellee's motion for directed verdict on appellant's wage- and age-discrimination claims was proper. Appellant failed to demonstrate that the employee wage compensation plan adopted by appellee is discriminatory and violates R.C. 4111.17 and 4112.02. When construing the facts most strongly in appellant's favor, we find that appellant did not meet his burden to establish the elements of his wage-discrimination claim or his age-discrimination claim. Appellant admitted that all of the vascular interventional radiologists with the same academic rank were paid the same base salary, failed to present evidence of adverse employment actions by appellee, and failed to present a statistically relevant analysis to prove that appellee's wage compensation plan caused an adverse impact on employees over 40.

Motion for Summary Judgment, Employment, Age Discrimination, Sex Discrimination. No genuine issues as to any material fact existed regarding plaintiff's claims for age or sex discrimination. Defendant presented legitimate, non-discriminatory reasons for plaintiff's termination. Plaintiff failed to establish a prima facie case by presenting facts which demonstrated that defendant's reasoning for termination of plaintiff's employment was pretextual. Defendant's motion for summary judgment was granted.

Court lacked subject-matter jurisdiction of age discrimination claim against school board where employee elected to file OCRC charge tortious violation of rights not recognized claim under Ohio law employee failed to submit proper evidence to support disability discrimination claim employee failed to make prima facie case of retaliation conduct supporting IIED claim not sufficiently extreme and outrageous no abuse of discretion in affirming termination under R.C. 3319.16.

Temple Emanuel of Newton vs. Massachusetts Commission Against Discrimination. Suffolk. May 8, 2012. September 19, 2012. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Anti-Discrimination Law, Age, Religious beliefs. Religion. Constitutional Law, Freedom of religion. Massachusetts Commission Against Discrimination. Jurisdiction, Administrative matter. Administrative Imw, Primary jurisdiction, Exhaustion of remedies, Judicial review. Employment, Discrimination. Review of authorities pertaining to the “ministerial exception” grounded in the First Amendment to the United States Constitution, precluding the application of antidiscrimination laws to the employment relationship between a religious institution and its ministers. [476-478] This court concluded that, in a civil action, a Superior Court judge should have abstained from ordering the dismissal of an age discrimination complaint filed with the Massachusetts Commission Against Discrimination (commission) for lack of subject matter jurisdiction until the commission had reached a final decision in its adjudicatory proceeding, where there was no statutory authority for judicial review of the denial, by an investigating commissioner, of the employer’s motion to dismiss the complaint before the commission, in that the denial had occurred during the investigatory stage of the commission proceedings, before any finding had been made as to probable cause and before any public hearing had been conducted [478-479]; and where no reason existed to suspend the requirement of exhaustion of the administrative remedy, in that resort to the administrative remedy was not futile; in that, while the case raised important public questions, the resolution of those questions would not affect people beyond the parties to the case; in that pursuit of the administrative remedy would not result in irreparable harm; and in that, although the case reduced to a constitutional question, it was not a question that is peculiarly within judicial competence [479-484]. The “ministerial exception” grounded in the First Amendment to the United States Constitution barred an age discrimination complaint filed with the Massachusetts Commission Against Discrimination (commission) by a part-time teacher at a religious school after she had not been rehired by the religious school, where ordering a religious group to hire or retain a religious teacher that the religious group did not want to employ, or ordering damages for refusing to do so, would infringe the free exercise of religion or cause excessive entanglement between the State and the religious group. [484-487] Civil action commenced in the Superior Court Department on May 11, 2009. The case was heard by Nancy S. Holtz, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Catherine C. Ziehl for the defendant. Thomas J. Carey, Jr. (Michael L. Chinitz with him) for the plaintiff. Gants, J. This case presents two issues. The first is whether a judge in the Superior Court erred in ordering the dismissal of an age discrimination complaint filed with the Massachusetts Commission Against Discrimination (commission) for lack of subject matter jurisdiction before a final decision had been reached by the commission. The second is whether the “ministerial exception” required by the First Amendment to the United States Constitution prohibits a court or administrative agency from applying our State antidiscrimination laws to the decision of a Jewish temple not to rehire a teacher in its Sunday and after-school religious school. We conclude that the judge erred in deciding whether the “ministerial exception” barred the discrimination claim before the commission had entered a final decision on the claim. We nonetheless affirm the dismissal of the complaint because, relying solely on facts not in dispute, we conclude that the ministerial exception bars the claim of discrimination. Background. Temple Emanuel of Newton (Temple), a Conservative Jewish congregation of over 1,100 families, operates the synagogue-based Rabbi Albert I. Gordon Religious School (religious school). The religious school is an after-school and Sunday program for children in kindergarten through seventh grade. Gaye Hilsenrath was a part-time teacher at the religious school for over twenty-four years. Like all teachers at the religious school, Hilsenrath was employed on a part-time basis pursuant to a yearly letter of appointment. During the 2006-2007 school year the religious school employed approximately twenty part-time teachers, including Hilsenrath. In 2007 the Temple began to review and change the religious school in response to declining enrollment and dissatisfaction with the religious school among the congregation. Under its new staffing model, the religious school reduced the number of teachers from approximately twenty to twelve, each of whom would teach all subjects in kindergarten through fifth grade. In January, 2008, the Temple notified the teachers who were then employed by the religious school that they could apply for one of the twelve teaching positions for the 2008-2009 year. Ten of the twenty teachers then on staff, including Hilsenrath, applied for teaching positions. Hilsenrath was not offered a position. On August 4, 2008, Hilsenrath filed a complaint against the Temple with the commission. In the complaint she alleged that she had been subjected to harassment and discrimination on the basis of her age, and that she was not rehired by the religious school because of her age. A commission investigator advised the Temple by letter that it was required within twenty-one days to submit a formal written answer to the complaint, described as a position statement, with a full description of its defenses, signed under the pains and penalties of perjury. The investigator also provided the Temple with interrogatories and document requests that required the Temple to answer, among other questions, whether Hilsenrath was terminated from employment and to provide the reasons for her “separation from employment.” The Temple filed a motion with the commission to dismiss the complaint for lack of subject matter jurisdiction based on the First Amendment, and a separate motion to stay the filing of the position statement and responses to the commission’s discovery requests until the motion to dismiss was decided. On January 30, 2009, the investigating commissioner denied the Temple’s motion to dismiss without prejudice and without a statement of reasons. The Temple appealed from the denial to the full commission. On April 10, 2009, the investigating commissioner denied the appeal, again without a statement of reasons. On April 27, 2009, the investigating commissioner denied the Temple’s motion to stay, and the commission ordered the Temple to file its position statement in response to the complaint within twenty-one days. On May 11, 2009, the Temple filed a complaint against the commission in the Superior Court seeking a judgment declaring that the First Amendment prohibits the commission from exercising subject matter jurisdiction over the claims in the complaint, and an order directing the commission to dismiss the complaint. The Temple also moved for a preliminary injunction prohibiting the commission from exercising subject matter jurisdiction over the complaint, and staying administrative proceedings pending final adjudication of the declaratory judgment action. The commission moved to dismiss the Temple’s complaint. A judge in the Superior Court denied the commission’s motion to dismiss and entered judgment in favor of the Temple. The judge recognized that “G. L. c. 151B confers upon [the commission] the authority to investigate and act upon complaints of discrimination without judicial interference unless and until [the commission] has made a final decision in an adjudicatory proceeding.” But the judge determined that, in “extraordinary circumstances,” where the exhaustion of administrative remedies would prove futile, where the only question is one of law, and where irreparable harm would result if judicial action were delayed, a judge in the Superior Court may enter a declaratory judgment while an administrative proceeding is pending and before an agency’s final decision. The judge concluded that this was one of those rare cases where these extraordinary circumstances were present. The judge found that exhaustion of administrative remedies would be futile because “there can be no doubt that [the commission] has made a final determination . . . that it has [subject matter] jurisdiction,” and “intends to delve into the decision making thoughts and processes of the leadership of the Temple.” The judge also found that the question of subject matter jurisdiction was one of law. Finally, the judge found that irreparable harm would arise from delay because the commission’s attempt to conduct discovery and subject the Temple to the full adjudicatory process would itself be a constitutional violation if the employment decision were protected by the ministerial exception. The judge concluded that the employment decision here was protected by the ministerial exception because “Hilsenrath’s role as teacher at the religious school simply cannot be extracted from the school’s overall religious mission and integration” into the synagogue. The commission appealed, and we transferred the case on our own motion. Discussion. 1. Ministerial exception. The First Amendment provides, in part, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” When judgment was issued in this case, the United States Courts of Appeals “uniformly recognized the existence of a ‘ministerial exception,’ grounded in the First Amendment,” that precludes the application of Federal antidiscrimination law under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (2006), to the employment relationship between a religious institution and its ministers, but the Supreme Court of the United States had yet to consider the issue. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 705 & n.2 (2012) (Hosanna-Tabor) (collecting cases). This court, too, recognized that the First Amendment precludes application of State antidiscrimination law to employment decisions made by religious institutions regarding their ministers. Where an Episcopal priest had filed suit under G. L. c. 15IB claiming discrimination on the basis of gender, we affirmed that the case should be dismissed for lack of subject matter jurisdiction. Williams v. Episcopal Diocese of Mass., 436 Mass. 574, 577, 583 (2002). We noted that the principle that the First Amendment “precludes jurisdiction of civil courts over church disputes touching on matters of doctrine, canon law, polity, discipline, and ministerial relationships is firmly established in Massachusetts case law.” Id. at 579, and cases cited. We concluded that a dispute over a priest’s discharge from employment is “a quintessential example” of a church dispute that a court could not examine “without intruding into matters of the internal management of the Diocese.” Id. at 579, 580. We held that, where there is a “conflict between the legislative mandate of G. L. c. 151B to eliminate discrimination in the workplace and our constitutional mandate to preserve the separation of church and State, the constitutional directive must prevail.” Id. at 583. See Callahan v. First Congregational Church of Haverhill, 441 Mass. 699, 711-712 (2004). Earlier this year, the Supreme Court agreed that there is a ministerial exception that bars an employment discrimination suit brought on behalf of a minister. Hosanna-Tabor, supra at 706, 710. The Court reasoned: “The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.” Id. at 706. The Court also ruled that an award of money damages against the church for employment discrimination would be barred by the ministerial exception, because it “would operate as a penalty on the Church for terminating an unwanted minister, and would be no less prohibited by the First Amendment than an order overturning the termination.” Id. at 709. Resolving a conflict among some of the circuit courts of the United States Court of Appeals, the Court ruled that the ministerial exception “operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar.” Id. at 709-710 n.4. To the extent that we had held under the First Amendment that courts are without subject matter jurisdiction to decide employment disputes involving a minister and a church, the Court’s decision in Hosanna-Tabor overruled that holding. Contrast Hosanna-Tabor, supra, with Callahan v. First Congregational Church of Haverhill, supra at 711-712; Williams v. Episcopal Diocese of Mass., supra at 577, 583. Because the parties and the judge did not have the benefit of the Supreme Court’s decision in Hosanna-Tabor, all assumed that the ministerial exception raised a question of subject matter jurisdiction, not an affirmative defense. 2. Judicial abstention. We consider first whether the judge erred in granting the relief sought before the commission had made a final decision in its adjudicatory proceeding. To resolve this issue, we briefly explore the adjudicatory process within the commission that leads to a final decision. Once a complaint is filed with the commission, the chair of the commission designates one of the commissioners as an investigating commissioner to investigate the complaint with the assistance of commission staff. 804 Code Mass. Regs. § 1.13(2) (1999). After the completion of the investigation, the investigating commissioner determines whether or not there is probable cause to believe “the respondent committed an unlawful practice.” 804 Code Mass. Regs. § 1.15(7)(a) (1999). Where probable cause is found, after being notified by the parties that discovery is complete, the investigating commissioner issues an order of certification to hold a public hearing, identifying each issue to be considered at a public hearing, which may include subject matter jurisdiction as well as the merits of the discrimination claims. 804 Code Mass. Regs. § 1.20(1), (3)(a) (2004). The public hearing is conducted by a commissioner (other than the investigating commissioner), a hearing officer, or the full commission. 804 Code Mass. Regs. § 1.21(1) (1999). After the hearing, the hearing commissioner, hearing officer, or commission issues a written decision with necessary findings of fact and conclusions of law, resolving the issues certified by the investigating commissioner. 804 Code Mass. Regs. § 1.21(18) (1999). Any party aggrieved by the decision of the hearing commissioner or hearing officer may request review by the full commission. 804 Code Mass. Regs. § 1.23(1)(a) (1999). The full commission may affirm the decision, remand it for further proceedings, or set aside or modify the decision. 804 Code Mass. Regs. § 1.23(1)(h) (1999). Among the issues that may be addressed by the full commission are whether the decision is “[i]n violation of constitutional provisions” or “[i]n excess of the statutory authority or jurisdiction of the Commission.” Id. A complainant, respondent, or other person aggrieved by a final decision of the commission may obtain judicial review in the Superior Court. G. L. c. 151B, § 6. See G. L. c. 30A, § 14. For the purpose of judicial review, “the Decision of the Full Commission . . . shall constitute the Final Order of the Commission.” 804 Code Mass. Regs. § 1.24(1) (1999). Here, the Temple’s motion to dismiss the commission complaint was denied during the investigatory stage of the commission proceedings, before any finding had been made as to probable cause, and before any public hearing had been conducted. Therefore, there was no statutory authority for judicial review of the denial of the motion to dismiss by the investigating commissioner. Only in extraordinary cases may a court take jurisdiction of a matter that is pending before an administrative agency. “Exceptions to the exhaustion requirement have been made when the administrative remedy is inadequate.” Hingham v. Department of Hous. & Community Dev., 451 Mass. 501, 509 (2008). Factors we have considered in determining whether to suspend the exhaustion requirement include: whether resort to the administrative remedy would be futile, Ciszewski v. Industrial Acc. Bd., 367 Mass. 135, 141 (1975); whether the case raises important public questions whose resolution will affect people beyond the parties to the case, East Chop Tennis Club v. Massachusetts Comm’n Against Discrimination, 364 Mass. 444, 450 (1973); whether pursuing the administrative remedy will result in irreparable harm to either party, Everett v. Local 1656, Int'l Ass’n of Firefighters, 411 Mass. 361, 368 (1991); and whether there is a question of law “peculiarly within judicial competence,” id. We address each of these factors. First, the record before the judge did not permit a finding that the exhaustion of administrative remedies would be futile. Only the investigating commissioner had denied the motion to dismiss based on the ministerial exception. The question whether the ministerial exception barred the age discrimination claim here, whether because of subject matter jurisdiction or as a successful affirmative defense, had yet to be decided by a hearing commissioner or a hearing officer, or by the full commission, which would issue the final decision, and there could be no assurance as to how the commission ultimately would rule on this issue. Furthermore, exhaustion of administrative remedies is generally only considered futile “where the power and authority of the agency themselves are in question, and not where the exercise of that agency’s discretion is challenged.” Ciszewski v. Industrial Acc. Bd., supra. Because the ministerial exception would not divest the commission of jurisdiction over Hilsenrath’s complaint, see Hosanna-Tabor, supra at 709-710 n.4, the Temple’s challenge is to the commission’s evaluation of an affirmative defense rather than its authority to adjudicate the complaint. Second, although the case raises important legal questions about the ministerial exception, the resolution of such claims is fact intensive and a decision in Hilsenrath’s case will, at most, only resolve disputes as to the application of the ministerial exception to teachers in Sunday and after-school religious schools. Compare East Chop Tennis Club v. Massachusetts Comm’n against Discrimination, supra (legal determination whether private club is place of public accommodation subject to discrimination laws is fact intensive and “would only resolve the specific dispute between the club and the commission”) with ACE Prop. & Cas. Ins. Co. v. Commissioner of Revenue, 437 Mass. 241, 243 (2002) (resolution of legal question raised would affect “other taxpayers, who are asserting the identical preemption argument in applications for abatement and appeals to the board”). Third, the judge’s finding that irreparable harm would result if she abstained from taking action until a final decision had been rende