Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 1
`FILED
`United States Court of Appeals
`Tenth Circuit
`
`June 7, 2022
`
`Christopher M. Wolpert
`Clerk of Court
`
`PUBLISH
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE TENTH CIRCUIT
`_________________________________
`
`
`
`
`
`No. 20-1230
`
`GREGORY TUCKER,
`
` Plaintiff - Appellee,
`
`v.
`
`FAITH BIBLE CHAPEL
`INTERNATIONAL, d/b/a Faith Christian
`Academy, Inc.,
`
` Defendant - Appellant.
`
`------------------------------------
`
`EUGENE VOLOKH; ROBERT J.
`PUSHAW; RICHARD W. GARNETT;
`ROBERT COCHRAN; ELIZABETH A.
`CLARK; THE ASSOCIATION OF
`CHRISTIAN SCHOOLS
`INTERNATIONAL; THE COLORADO
`CATHOLIC CONFERENCE;
`RELIGIOUS LIBERTY SCHOLARS;
`JEWISH COALITION FOR RELIGIOUS
`LIBERTY; PROFESSOR ASMA UDDIN;
`NATIONAL WOMEN’S LAW CENTER;
`AMERICAN FEDERATION OF STATE,
`COUNTY AND MUNICIPAL
`EMPLOYEES; AMERICAN SEXUAL
`HEATH ASSOCIATION; CALIFORNIA
`WOMEN LAWYERS; DC COALITION
`AGAINST DOMESTIC VIOLENCE;
`DESIREE ALLIANCE; EQUAL RIGHTS
`ADVOCATES; EQUALITY
`CALIFORNIA; EQUITY FORWARD;
`FORGE, INC.; GLBTQ LEGAL
`ADVOCATES & DEFENDERS; HUMAN
`
`
`
`
`

`

`Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 2
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`RIGHTS CAMPAIGN; IN OUR OWN
`VOICE; NATIONAL BLACK WOMEN’S
`REPRODUCTIVE JUSTICE AGENDA;
`KWH LAW CENTER FOR SOCIAL
`JUSTICE AND CHANGE;
`LATINOJUSTICE PRLDEF; LEGAL AID
`AT WORK; LEGAL VOICE; MUSLIMS
`FOR PROGRESSIVE VALUES; NARAL
`PRO-CHOICE AMERICA; NATIONAL
`ASIAN PACIFIC AMERICAN
`WOMEN’S FORUM; NATIONAL
`ASSOCIATION OF SOCIAL WORKERS;
`NATIONAL COALITION AGAINST
`DOMESTIC VIOLENCE; NATIONAL
`ORGANIZATION FOR WOMEN
`FOUNDATION; NEW YORK LAWYERS
`FOR THE PUBLIC INTEREST; PEOPLE
`FOR THE AMERICAN WAY
`FOUNDATION; RELIGIOUS
`COALITION FOR REPRODUCTIVE
`CHOICE; REPRODUCTIVE JUSTICE
`ACTION COLLECTIVE; SERVICE
`EMPLOYEES INTERNATIONAL
`UNION; SPARK REPRODUCTIVE
`JUSTICE NOW!, INC.; UJIMA INC.;
`THE NATIONAL CENTER ON
`VIOLENCE AGAINST WOMEN IN THE
`BLACK COMMUNITY; WOMEN
`EMPLOYED; WOMEN LAWYERS ON
`GUARD INC.; WOMEN’S BAR
`ASSOCIATION OF THE DISTRICT OF
`COLUMBIA; WOMEN’S BAR
`ASSOCIATION OF THE STATES OF
`NEW YORK; WOMEN’S INSTITUTE
`FOR FREEDOM OF THE PRESS; THE
`WOMEN’S LAW CENTER OF
`MARYLAND; WOMAN’S LAW
`PROJECT; WV FREE, CIVIL RIGHTS
`EDUCATION AND ENFORCEMENT
`CENTER; NATIONAL EMPLOYMENT
`LAWYERS ASSOCIATION; THE
`EMPLOYEE RIGHTS ADVOCACY
`INSTITUTE FOR LAW & POLICY, AND
`2
`
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`

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`Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 3
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`THE INSTITUTE FOR
`CONSTITUTIONAL ADVOCACY AND
`PROTECTION,
`
` Amici Curiae.
`
`_________________________________
`
`Appeal from the United States District Court
`for the District of Colorado
`(D.C. No. 1:19-CV-01652-RBJ-STV)
`_________________________________
`
`Daniel H. Blomberg (Daniel D. Benson and Christopher Mills, The Becket Fund for
`Religious Liberty, Washington, D.C., and Christopher J. Conant and Robert W. Hatch,
`Hatch Ray Olsen Conant LLC, Denver, Colorado, with him on the briefs), The Becket
`Fund for Religious Liberty, Washington, D.C. for Defendant-Appellant.
`
`Bradley Girard (Richard B. Katskee, Americans United for Separation of Church and
`State, and Bradley A. Levin, Jeremy A. Sitcoff, and Peter G. Friesen, Levin Sitcoff, PC,
`Denver, CO, with him on the brief), Americans United for Separation of Church and
`State, Washington, D.C., for Plaintiff-Appellee.
`_________________________________
`
`Before BACHARACH, EBEL, and McHUGH, Circuit Judges.
`_________________________________
`
`EBEL, Circuit Judge.
`
`_________________________________
`
`This appeal presents a single jurisdictional issue: Whether Appellant Faith
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`Bible Chapel International can bring an immediate appeal under the collateral order
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`doctrine challenging the district court’s interlocutory decision to deny Faith summary
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`judgment on its affirmative “ministerial exception” defense. Faith operates a school,
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`Faith Christian Academy (“Faith Christian”). Plaintiff Gregory Tucker, a former
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`high school teacher and administrator/chaplain, alleges Faith Christian fired him in
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`violation of Title VII (and Colorado common law) for opposing alleged race
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`Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 4
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`discrimination at the school. As a religious employer, Faith Christian generally must
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`comply with anti-discrimination employment laws. But under the affirmative
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`“ministerial exception” defense, those anti-discrimination laws do not apply to
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`employment disputes between a religious employer and its ministers. Here, Faith
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`Christian defended against Tucker’s race discrimination claims by asserting that he
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`was a “minister” for purposes of the exception.
`
`The Supreme Court deems the determination of whether an employee is a
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`“minister” to be a fact-intensive inquiry that turns on the particular circumstances of
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`a given case. Here, after permitting limited discovery on only the “ministerial
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`exception,” the district court ruled that, because there are genuinely disputed material
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`facts, a jury would have to resolve whether Tucker was a “minister.” Summary
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`judgment for Faith Christian, therefore, was not warranted. Faith Christian
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`immediately appealed that decision, seeking to invoke our jurisdiction under the
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`collateral order doctrine.
`
`The Supreme Court has stated time and again that the collateral order doctrine
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`permits a narrow exception to the usual 28 U.S.C. § 1291 requirement that we only
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`review appeals taken from final judgments entered at the end of litigation. In
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`deciding whether the collateral order doctrine permits immediate appeals from the
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`category of orders at issue here—orders denying summary judgment on the
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`“ministerial exception” because there remain disputed issues of material fact—we
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`must weigh the benefit of an immediate appeal against the cost and disruption of
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`allowing appeals amid ongoing litigation. After conducting that balancing, we
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`Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 5
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`determine that we do not have jurisdiction to consider this interlocutory appeal.
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`Instead, we conclude the category of orders at issue here can be adequately reviewed
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`at the conclusion of litigation.
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`In deciding that we lack jurisdiction, we reject Faith Christian’s arguments,
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`which the dissent would adopt. Faith Christian seeks to justify an immediate appeal
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`first by making the novel argument that the “ministerial exception” not only protects
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`religious employers from liability on a minister’s employment discrimination claims,
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`but further immunizes religious employers altogether from the burdens of even
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`having to litigate such claims. In making this argument, Faith Christian deems the
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`“ministerial exception” to be a semi-jurisdictional “structural” limitation on courts’
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`authority to hear Title VII claims. On that basis, Faith Christian then draws an
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`analogy between the decision to deny Faith Christian summary judgment on its
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`“ministerial exception” defense and those immediately appealable decisions to deny
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`government officials qualified immunity from suit under 42 U.S.C. § 1983.
`
`We reject both steps of Faith Christian’s argument. The Supreme Court has
`
`made clear that the “ministerial exception” is an affirmative defense to employment
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`discrimination claims, rather than a jurisdictional limitation on the authority of courts
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`to hear such claims. Further, the “ministerial exception” is not analogous to qualified
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`immunity available to government officials. The Supreme Court has only permitted
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`immediate appeals from the denial of qualified immunity when the issue presented
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`for appeal is one of law, not fact. Here, on the other hand, the critical question for
`
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`Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 6
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`purposes of the “ministerial exception” is the fact-intensive inquiry into whether
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`Tucker was a minister.
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`Moreover, the reason that the Supreme Court permits immediate appeals from
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`the denial of qualified immunity is to protect, not individual government officials,
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`but rather the public’s interest in a functioning government. That public interest is
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`not present when a private religious employer seeks to avoid liability under Title VII
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`from employment discrimination claims.
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`Faith Christian’s (and the dissent’s) argument for application of the collateral
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`order doctrine here contradicts several well-established lines of Supreme Court
`
`precedent establishing that
`
`- the question of whether an employee is a minister is a fact-intensive inquiry,
`rather than a legal determination, see Our Lady of Guadalupe Sch. v.
`Morrissey-Berru, 140 S. Ct. 2049, 2066–67 (2020);
`
` -
`
` the collateral order doctrine applies only narrowly, usually to review legal,
`rather than factual, determinations, see Johnson v. Jones, 515 U.S. 304, 307,
`309–10, 313–18 (1995);
`
` -
`
` qualified immunity protects only government officials, see Wyatt v. Cole,
`504 U.S. 158, 167–68 (1992), not private religious employers; and
`
` -
`
` the “ministerial exception” is an affirmative defense, not a limitation on
`courts’ authority to hear Title VII cases, see Hosanna-Tabor Evangelical
`Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171, 195 n.4 (2012).
`
`We cannot, and should not, ignore these well-established lines of Supreme
`
`
`
`Court precedent and, therefore, we reject Faith Christian’s (and the dissent’s)
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`arguments for application of the collateral order doctrine here. We conclude, instead,
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`Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 7
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`that we lack jurisdiction over this interlocutory appeal and, therefore, DISMISS this
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`appeal.
`
`A. Relevant Facts
`
`I. BACKGROUND
`
`Faith Christian Academy is a Christian school offering Bible-based education
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`from kindergarten through high school. The students and staff come from a wide
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`array of religious perspectives.
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`Tucker began teaching high school science at the school in 2000. Later he also
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`taught courses entitled “Leadership” and “Worldviews and World Religions.” In
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`2014, Faith Christian hired Tucker for the additional job of chaplain, a position also
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`referred to as the Director of Student Life. In 2017, Tucker was assigned the
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`additional task of planning Faith Christian’s weekly “Chapel Meetings.”
`
`
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`In January 2018, Tucker conducted a chapel meeting—he calls it a
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`symposium—on race and faith. Although Faith Christian initially congratulated
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`Tucker on the presentation, that presentation was not well-received by some parents
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`and students. As a result, the school relieved Tucker of his duties preparing and
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`conducting weekly chapel meetings and soon thereafter removed him from his
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`position as Director of Student Life. At the end of February 2018, the school also
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`fired him from his teaching position.
`
`B. Procedural Posture
`
`Tucker filed a complaint with the Equal Employment Opportunity Commission
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`and, after receiving a right-to-sue letter, sued Faith Christian. Tucker asserted two
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`Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 8
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`causes of action relevant here: 1) a claim under Title VII of the Civil Rights Act of
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`1964, alleging that the school fired him in retaliation for opposing a racially hostile
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`environment; and 2) a Colorado common law claim for wrongful termination in
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`violation of public policy.1
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`At the outset of this litigation, Faith Christian moved to dismiss the action
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`under Fed. R. Civ. P. 12(b)(6), asserting the “ministerial exception.” The exception
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`is rooted in the First Amendment, which “bar[s] the government from interfering
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`with the decision of a religious group to fire one of its ministers.” Hosanna-Tabor,
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`565 U.S. at 181; see also Our Lady, 140 S. Ct. at 2060–61. The “ministerial
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`exception” is “not a jurisdictional bar” that might abort the traditional judicial
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`process. Hosanna-Tabor, 565 U.S. at 195 n.4. Instead, it “operates as an affirmative
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`defense to an otherwise cognizable claim . . . because the issue presented by the
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`exception is ‘whether the allegations the plaintiff makes entitle him to relief,’ not
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`whether the court has ‘power to hear [the] case.’” Id. (quoting Morrison v. Nat’l
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`Australia Bank Ltd., 561 U.S. 247, 254 (2010)).
`
`Because it is well established that a religious employer does not “enjoy a
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`general immunity from secular laws,” Our Lady, 140 S. Ct. at 2060, the “ministerial
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`exception” does not preclude discrimination claims brought by a religious employer’s
`
`non-ministerial employees. See, e.g., Rayburn v. Gen. Conf. of Seventh-Day
`
`Adventists, 772 F.2d 1164, 1169 (4th Cir. 1985) (recognizing Title VII applies to a
`
`
`1 Tucker also asserted a claim under Title VI of the 1964 Civil Rights Act, which the
`district court dismissed. That dismissal is not at issue in this appeal.
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`Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 9
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`religious institution’s “secular employment decisions”), cited favorably in
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`Skrzypczak v. Roman Catholic Diocese, 611 F.3d 1238, 1245–46 (10th Cir. 2010).
`
`The “ministerial exception” is triggered only when the plaintiff-employee in a Title
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`VII case qualifies as a “minister.”
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`Here, Faith Christian asserted its affirmative “ministerial exception” defense in
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`a Rule 12(b)(6) motion to dismiss, but the district court converted that motion into
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`one for summary judgment under Fed. R. Civ. P. 56. The court then permitted
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`limited discovery only on the questions of whether Faith Christian is a religious
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`employer entitled to assert the “ministerial exception” and whether Tucker qualified
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`as a minister. After the parties addressed those questions, the district court denied
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`Faith Christian summary judgment, ruling that, while Faith Christian could assert the
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`“ministerial exception,” the question of “whether Mr. Tucker was a ‘minister’ within
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`the meaning of the ‘ministerial exception’ is genuinely disputed on the evidence
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`presented.” (Aplt. App. 284; see also id. (stating “that there is a genuine dispute of
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`material fact as to whether Mr. Tucker was a ‘minister’”).) The district court later
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`denied Faith Christian’s motion for reconsideration.2 Faith Christian immediately
`
`
`2 There are at least three questions underlying the determination of whether the
`“ministerial exception” applies in a given case: 1) Is the employer a religious
`organization entitled to assert the “ministerial exception” defense? 2) Is the employee
`a “minister”? And 3) is the claim that the employee is asserting against the employer
`the type of claim that is subject to the “ministerial exception”? As to the first
`question, Tucker does not challenge on appeal the district court’s ruling that Faith
`Christian could invoke the “ministerial exception.” It is the second question—
`whether Tucker qualifies as a “minister—that is the subject of this appeal. As to the
`third question, no one disputes that Tucker’s Title VII and state law wrongful
`discharge claims are subject to the “ministerial exception.” See Puri v. Khalsa, 844
`9
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`Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 10
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`appealed both decisions, invoking our jurisdiction under 28 U.S.C. § 1291 based on
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`the collateral order doctrine.3
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`II. DISCUSSION
`
`This case presents an important jurisdictional question of first impression for
`
`this Court: whether a decision denying a religious employer summary judgment on its
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`“ministerial exception” defense constitutes an immediately appealable final order
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`under the collateral order doctrine. Ultimately, we answer that question in the
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`negative and conclude we lack appellate jurisdiction to consider this interlocutory
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`appeal.
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`In reaching that conclusion, we: (A) address the scope of this appeal, which
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`involves the “ministerial exception”; (B) discuss general collateral-order-doctrine
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`principles, the only justification Faith Christian invokes in support of its
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`interlocutory appeal; and (C) apply those collateral-order principles to the category of
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`F.3d 1152, 1158 (9th Cir. 2017) (recognizing “ministerial exception” applies to state
`law causes of action “that would otherwise impinge on the church’s prerogative to
`choose its ministers or to exercise its religious beliefs in the context of employing its
`ministers.” (quoting Bollard v. Cal. Province of the Soc’y of Jesus, 196 F.3d 940, 950
`(9th Cir. 1999))); Conlon v. InterVarsity Christian Fellowship, 777 F.3d 829, 836 (6th
`Cir. 2015) (holding “ministerial exception can be asserted as a defense against state law
`claims”).
`
`3 Faith Christian has not invoked 28 U.S.C. § 1292(b), which permits a litigant to ask
`the district court to certify that the interlocutory “order involves a controlling
`question of law as to which there is substantial ground for difference of opinion and
`that an immediate appeal from the order may materially advance the ultimate
`termination of the litigation.”
`
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`orders at issue here, orders denying summary judgment on the “ministerial
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`exception” defense.
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`A. The Scope of This Appeal
`
`We first review what is at issue in this appeal—and what is not. Namely, this
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`appeal involves only Faith Christian’s affirmative defense under the “ministerial
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`exception,” not a defense under the broader church autonomy doctrine. Although the
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`two defenses share a common heritage, they are distinct defenses; we constrain our
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`analysis here to the “ministerial exception.” We begin by reviewing the similarities
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`and differences between the two defenses.
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`1. The “Ministerial Exception” and the Church Autonomy Doctrine
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`Both defenses are grounded in the First Amendment, which
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`protect[s] the right of churches and other religious institutions to decide
`matters “‘of faith and doctrine’” without government
`intrusion.
`Hosanna-Tabor, 565 U.S. at 186 (quoting Kedroff [v. St. Nicholas
`Cathedral of Russian Orthodox Church], 344 U.S. [94,] 116 [(1952)]). . . .
`
`The independence of religious institutions in matters of “faith and
`doctrine” is closely linked to independence in what we have termed
`“‘matters of church government.’” [Hosanna-Tabor,] 565 U.S. at 186.
`This does not mean that religious institutions enjoy a general immunity
`from secular laws, but it does protect their autonomy with respect to
`internal management decisions that are essential to the institution’s
`central mission. And a component of this autonomy is the selection of the
`individuals who play certain key roles.
`
`Our Lady, 140 S. Ct. at 2060.
`
`The “ministerial exception” is a narrower offshoot of the broader church
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`autonomy doctrine; it only precludes employment discrimination claims brought by a
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`“minister” against his religious employer.
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`[A] church’s independence on matters “of faith and doctrine” requires the
`authority to select, supervise, and if necessary, remove a minister without
`interference by secular authorities. Without that power, a wayward
`minister’s preaching, teaching, and counseling could contradict the
`church’s tenets and lead the congregation away from the faith. The
`ministerial exception was recognized to preserve a church’s independent
`authority in such matters.
`
`Id. at 2060–61 (footnote omitted); see also Hosanna-Tabor, 565 U.S. at 196. The
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`“ministerial exception,” then, is an exception to employment discrimination laws
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`which would otherwise apply to a religious employer when the employment dispute
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`involves a minister.
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`Like the church autonomy doctrine, the “ministerial exception” “operates as an
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`affirmative defense to an otherwise cognizable claim.” Hosanna-Tabor, 565 U.S. at
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`195 n.4. While these defenses are related, the threshold question for determining
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`when they apply differs. “Before the church autonomy doctrine is implicated, a
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`threshold inquiry is whether the alleged misconduct is ‘rooted in religious belief.’”
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`Bryce v. Episcopal Church in the Diocese of Colo., 289 F.3d 648, 657 (10th Cir.
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`2002) (quoting Wisconsin v. Yoder, 406 U.S. 205, 215 (1972)). The “ministerial
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`exception,” on the other hand, applies in one sense more broadly because it applies
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`regardless of whether the dispute is rooted in religious belief, but the exception also
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`applies more narrowly only to employment discrimination claims asserted by a
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`minister. See id. at 654 n.2. The threshold determination for applying the
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`“ministerial exception” is whether the plaintiff-employee qualifies as a “minister.”
`
`See id.
`
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`The Supreme Court has made clear, in both Hosanna-Tabor and Our Lady, that
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`this threshold determination of whether an employee is a “minister” for purposes of
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`the “ministerial exception” requires a fact-intensive inquiry into the specific
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`circumstances of a given case. See Our Lady, 140 S. Ct. at 2067 (“call[ing] on courts
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`to take all relevant circumstances into account and to determine whether each
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`particular position implicated the fundamental purpose of the exception”); see also id.
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`at 2063 (stating that, “[i]n determining whether a particular position falls within the
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`Hosanna-Tabor exception, a variety of factors may be important.”); id. at 2066
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`(noting that in Our Lady “[t]here is abundant record evidence that [the
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`plaintiffs-employees] both performed vital religious duties,” discussing that evidence
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`at length); Hosanna-Tabor, 565 U.S. at 190–94 (considering, in significant detail, “all
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`the circumstances of [the employee’s] employment”).
`
`Following those Supreme Court decisions, a number of circuit courts have also
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`recognized the fact-intensive nature of this inquiry. See Grussgott v. Milwaukee
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`Jewish Day Sch., Inc., 882 F.3d 655, 657–58 (7th Cir. 2018) (per curiam) (stating
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`that “whether Grussgott’s role as a Hebrew teacher can properly be considered
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`ministerial is subject to a fact-intensive analysis” required by Hosanna-Tabor);
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`Fratello v. Archdiocese, 863 F.3d 190, 206–10 (2d Cir. 2017) (conducting
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`fact-intensive inquiry into whether employee was a minister); Cannata v. Catholic
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`Diocese, 700 F.3d 169, 176 (5th Cir. 2012) (noting that “the Hosanna-Tabor Court
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`engaged in a fact-intensive inquiry and explicitly rejected the adoption of a ‘rigid
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`formula’ or bright-line test”); E.E.O.C. v. Roman Catholic Diocese, 213 F.3d 795,
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`801 (4th Cir. 2000) (pre-Hosanna-Tabor) (“While the ministerial exception promotes
`
`the most cherished principles of religious liberty, its contours are not unlimited and
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`its application in a given case requires a fact-specific inquiry.”); see also Clement v.
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`Roman Catholic Diocese, No. CV 16-117 Erie, 2017 WL 2619134, at *4 n.3 (W.D.
`
`Pa. June 16, 2017) (unreported) (stating that “the Supreme Court’s decision in
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`Hosanna-Tabor makes clear that the application of the ministerial exception requires
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`a factual inquiry to determine if the employee qualifies as a ‘minister’”). This court,
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`too, has treated the question of whether an employee qualifies as a “minister” as a
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`fact question. See Skrzypczak, 611 F.3d at 1243–44.
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`Contrary to all this authority, Faith Christian, as well as the dissent, deems the
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`determination of whether an employee is a minister instead to present a question of
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`law rather than fact. In reaching that conclusion, the dissent relies on three cases,
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`none of which come from the United State Supreme Court. First, the dissent relies on
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`Conlon, a case decided post-Hosanna-Tabor but before Our Lady. There, the Sixth
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`Circuit stated that “whether the [ministerial] exception attaches at all is a pure
`
`question of law which this court must determine for itself.” 777 F.3d at 833 (6th Cir.
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`2015). Conlon, however, made that statement in a Fed. R. Civ. P. 12(b)(6) context,
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`where every determination is a legal one. Id. Further, as previously noted, a number
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`of other circuits courts, following the Supreme Court, have instead recognized the
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`fact-intensive inquiry necessary to determine whether a plaintiff-employee was a
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`“minister.”
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`Second, the dissent mentions Skrzypczak, 611 F.3d 1238 (10th Cir. 2010), a
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`pre-Hosanna-Tabor case. A review of the Skrzypczak opinion indicates that the
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`Tenth Circuit treated the question of whether the plaintiff-employee was a minister
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`for purposes of the “ministerial exception” as one of fact. The Tenth Circuit, in that
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`pre-Hosanna-Tabor case, applied the Fourth Circuit’s general standard for
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`determining who qualifies as a minister—“any employee who serves in a position that
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`‘is important to the spiritual and pastoral mission of the church.’” Skrzypczak, 611 F.3d
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`at 1243 (quoting Rayburn, 772 F.2d at 1169 (4th Cir.)). In upholding summary
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`judgment for the religious employer under that standard, Skrzypczak first considered
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`the employer’s evidence of the plaintiff-employee’s job duties, determining that that
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`“evidence . . . tends to show her position was not limited to a merely administrative role,
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`but it also involved responsibilities that furthered the core of the spiritual mission of the
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`Diocese.” 611 F.3d at 1243. That was sufficient evidence under the Fourth Circuit’s
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`standard to prove that the plaintiff-employee was a minister, shifting the burden to
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`the plaintiff-employee, in opposing summary judgment, to “bring forward specific
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`facts showing a genuine issue for trial.” Id. (quoting Kannady v. City of Kiowa, 590 F.3d
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`1161, 1169 (10th Cir. 2010)). Skrzypczak concluded only that the plaintiff-employee
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`there had not met her burden because the only evidence she proffered were three deficient
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`affidavits:
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`All three affidavits contain identical language, beginning with the conclusion
`that “[Appellant’s] job was purely administrative,” and continuing with the
`statement, taken almost verbatim from Rayburn, that “[the job] in no way
`required or involved a primary function of teaching, spreading the faith,
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`Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 16
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`control of church governance, supervision of a religious order, or supervision
`or participation in religious ritual in worship.” (Appellant’s App. at 161–65.)
`
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`“To survive summary judgment, nonmovant’s affidavits must be
`based upon personal knowledge and set forth facts that would be admissible
`in evidence; conclusory and self-serving affidavits are not sufficient.”
`Murray v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir.1995) (internal
`quotation marks omitted). Despite Appellant’s contentions, these affidavits
`are exactly the type of conclusory affidavits that are insufficient to overcome
`summary judgment. Even if we accept [that] these affidavits are based on
`personal knowledge, they do not set forth any facts, admissible or otherwise,
`that a court could consider as raising a material issue of fact. Instead, each
`affidavit merely parrots a general rule that a court could consider in
`determining the ministerial exception’s application and then states, in the
`affiant’s opinion, the legal conclusion the court should reach. Accordingly,
`we hold the district court did not err in its determination that Appellant was
`a minister for purposes of the exception.
`
`
`Id. at 1244. Although Skrzypczak uses the phrase “legal conclusion” in describing the
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`plaintiff-employee’s deficient affidavits, the overall opinion treats the question of
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`whether the plaintiff-employee qualified as a “minister” as a factual determination.
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`Different from that case, here Tucker, in opposing summary judgment, submitted
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`evidence to support his assertion that he was not a minister.
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`Lastly, the dissent relies on a pre-Our Lady case from the Kentucky Supreme
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`Court, Kirby v. Lexington Theological Seminary, 426 S.W.3d 597, 608–09 (Ky.
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`2014), which applied state law to conclude that whether an employee is a minister is
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`a question of law. That state-law case is not persuasive in the face of two U.S.
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`Supreme Court cases, Our Lady and Hosanna-Tabor, as well as the Tenth Circuit
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`decision in Skrzypczak, treating the determination of whether a religious entity’s
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`employee is a minister as a fact-intensive inquiry.
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`Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 17
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`The cases on which the dissent relies, then, are not persuasive. We, therefore,
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`treat the question of whether Tucker is a minister, for purposes of applying the
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`“ministerial exception,” as a fact-intensive inquiry rather than a straight legal
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`conclusion.4
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`With this general legal framework in mind, we now turn to the circumstances
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`of the case before us.
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`2. The Defense Asserted in This Case is Only a “Ministerial Exception”
`Defense and Not a Church Autonomy Defense
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`Faith Christian, in its converted summary judgment motion, asserted only a
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`
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`“ministerial exception” defense and, importantly, the limited discovery and summary
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`judgment pleadings focused only on that issue.5 In its motion for reconsideration,
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`Faith Christian continued to assert the “ministerial exception” defense, but also for
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`the first time referred, perfunctorily, to a defense under the broader church autonomy
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`doctrine. On appeal, Faith Christian now relies on both defenses and, at times, lumps
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`them together.
`
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`4 The dissent, as well as Faith Christian and amici, gloss over the fact that the
`threshold question that triggers the application of the exception—whether the
`plaintiff-employee qualifies as a minister—requires a fact-intensive inquiry. In light
`of that, there will often be cases (like the case before us) where the district court will
`be unable to resolve that threshold question at the motion-to-dismiss or
`summary-judgment stage of litigation. In those cases, the jury will have to resolve
`the factual disputes and decide whether an employee qualifies as a “minister” before
`the affirmative “ministerial exception” defense is triggered.
`
` In arguing on appeal that it has asserted a church autonomy defense all along, Faith
`Christian only points to several sentences in its converted summary judgment motion
`taken out of context.
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`
` 5
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`Appellate Case: 20-1230 Document: 010110693741 Date Filed: 06/07/2022 Page: 18
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`Faith Christian, however, has not adequately developed a factual record for
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`asserting the church autonomy defense. In particular, there has been no record
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`development on that defense’s necessary threshold question: whether the employment
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`dispute between Tucker and Faith Christian is rooted in a difference in religious
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`belief or doctrine. Further, the parties only briefly and very generally alluded to the
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`nature of their dispute in their pleadings. In his amended complaint, for example,
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`Tucker alleged that Faith Christian fired him in retaliation for Tucker opposing race
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`discrimination at the school. Faith Christian asserted in its answer, filed after the
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`district court denied Faith Christian summary judgment on the “ministerial
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`exception,” that it fired Tucker because it disagreed with the biblical interpretations
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`upon which he relied in his “Race and Faith” presentation. Faith Christian makes
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`that argument again in its appellate briefs. Tucker counters that, prior to his firing,
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`Faith Christian never raised concerns about any religious message he conveyed as
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`part of the “Race and Faith” presentation and, instead, the school’s administration
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`told Tucker that his firing was an economic decision based on his offending too many
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`tuition-paying parents and their children. Whether or not Faith Christian’s conflict
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`with Tucker was rooted in religious belief, then, is directly disputed and the facts
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`underlying that question have not yet been developed. Therefore, because Faith
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`Christian did not adequately assert or develop a de