Case: 22-2954 Document: 53 Filed: 07/13/2023 Pages: 15

In the

United States Court of Appeals

For the Seventh Circuit
____________________
No. 22-2954
MICHELLE FITZGERALD,
Plaintiff-Appellant,
v.

RONCALLI HIGH SCHOOL, INC. and ROMAN

CATHOLIC ARCHDIOCESE OF INDIANAPOLIS, INC.,
Defendants-Appellees.
____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.
No. 19-cv-4291 — Richard L. Young, Judge.
____________________

ARGUED JUNE 2, 2023 — DECIDED JULY 13, 2023

____________________

Before FLAUM, BRENNAN, and ST. EVE, Circuit Judges.

ST. EVE, Circuit Judge. Michelle Fitzgerald worked for Ron-
calli High School—a Catholic high school run by the Archdi-
ocese of Indianapolis—for fourteen years. After providing
Fitzgerald years of exceptional performance reviews, the
school declined to renew her one-year employment contract
because it contended her same-sex marriage was contrary to
the school’s religious mission. Fitzgerald sued the school and
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2 No. 22-2954

Archdiocese for sex discrimination, and the defendants raised

the ministerial exception as a defense. The district court
granted summary judgment for the defendants on this
ground, and Fitzgerald appealed. We affirm.
I. Background
For fourteen years, Michelle Fitzgerald worked for the de-
fendants as a guidance counselor and Co-Director of Guid-
ance. She was, by all accounts, a good and effective employee
and earned years of stellar performance reviews during her
tenure at Roncalli. But in 2018, the defendants declined to re-
new her one-year employment agreement, explaining that her
same-sex marriage was contrary to the Catholic faith. Shortly
after Fitzgerald was placed on administrative leave, her Co-
Director of Guidance, Lynn Starkey, informed Roncalli that
she too was in a same-sex marriage. Like with Fitzgerald, the
school decided not to renew Starkey’s employment agree-
ment.
Fitzgerald and Starkey brought separate lawsuits against
the school for, among other things, sex discrimination under
Title VII. The cases were assigned to the same district court
judge. Starkey’s case proceeded to summary judgment first,
which the district court granted in favor of the defendants. We
affirmed the decision in Starkey v. Roman Catholic Archdiocese
of Indianapolis, Inc., 41 F.4th 931 (7th Cir. 2022).
About two months after our decision in Starkey, the district
court granted summary judgment to the defendants in Fitz-
gerald’s case, as well. Although the court acknowledged nu-
merous genuine factual disputes in the record, it found that
Starkey foreclosed Fitzgerald’s case. This timely appeal fol-
lowed.
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No. 22-2954 3

II. Analysis
There is no dispute that the defendants fired Fitzgerald be-
cause of her same-sex marriage and that Title VII prohibits
this kind of sex discrimination. See Bostock v. Clayton County,
140 S. Ct. 1731, 1744 (2020). But the defendants contend that
certain exceptions, exemptions, and protections guard their
actions from statutory liability. The district court granted
summary judgment on the ministerial exception. Our analysis
begins and ends there.
The First Amendment provides, in part, that “Congress
shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof.” U.S. Const. amend. I. In
Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C.,
565 U.S. 171, 176–77 (2012), the Supreme Court held that this
language bars employment discrimination suits “when the
employer is a religious group and the employee is one of the
group’s ministers.” This is what has long been called “the
ministerial exception.” Id. at 180. As the Court explained,
“[r]equiring a church to accept or retain an unwanted minis-
ter, or punishing a church for failing to do so, intrudes upon
more than a mere employment decision.” Id. at 188. “Such ac-
tion interferes with the internal governance of the church, de-
priving the church of control over the selection of those who
will personify its beliefs.” Id.
Because the ministerial exception is a defense, the burden
to prove that an employee is a minister is on the defendants.
See Sterlinski v. Cath. Bishop of Chi., 934 F.3d 568, 571 (7th Cir.
2019). This is a multi-factored, fact-specific inquiry. See Ho-
sanna-Tabor, 565 U.S. at 190 (refusing to “adopt a rigid formula
for deciding when an employee qualifies as a minister”). We
consider, among other things, “the formal title given [the
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4 No. 22-2954

plaintiff] by the Church, the substance reflected in that title,

her own use of that title, and the important religious functions
she performed for the Church.” Id. at 192; see also Our Lady of
Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2064 (2020)
(emphasizing that “[w]hat matters … is what an employee
does”). In determining whether an employee served a reli-
gious role, we show deference to the church. See Sterlinski, 934
F.3d at 570–71. That said, a church cannot show entitlement
to the ministerial exception simply by asserting that everyone
on its payroll is a minister or by requiring that all employees
sign a ministerial contract. Id. In such circumstances, like in
other Title VII cases, the plaintiff can defeat summary judg-
ment by producing evidence that the church’s justification is
pretextual. Id. at 571; see also Grussgott v. Milwaukee Jewish Day
Sch., 882 F.3d 655, 660 (7th Cir. 2018) (“This does not mean
that we can never question a religious organization’s designa-
tion of what constitutes religious activity, but we defer to the
organization in situations like this one, where there is no sign
of subterfuge.”).
Just last year, we affirmed the application of the ministe-
rial exception to Fitzgerald’s Co-Director of Guidance.
Starkey, 41 F.4th at 945. That decision goes a long way in re-
solving this case. As with Starkey, there is no genuine dispute
that Fitzgerald played a crucial role on the Administrative
Council, which was responsible for at least some of Roncalli’s
daily ministry, education, and operations. Id. at 940. And like
Starkey, Fitzgerald “helped develop the criteria used to eval-
uate guidance counselors, which included religious compo-
nents like assisting students in faith formation and attending
church services.” Id. Additionally, Fitzgerald held herself out
as a minister, further supporting the district court’s finding.
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No. 22-2954 5

Considered together, these undisputed facts preclude a rea-

sonable jury from finding that Fitzgerald was not a minister.
Administrative Council. Fitzgerald concedes that she sat on
the Administrative Council in her capacity as the Co-Director
of Guidance. Although Fitzgerald disputes the extent of the
Council’s involvement in the school’s religious operations,
she cannot deny that the Administrative Council participated
in at least some religious planning and discussion. Council
meeting notes suggested that it planned religious details of
religious services. On September 27, 2016, for example, the
Council discussed a morality survey, deciding to “[s]hape it
to assist with [the school’s] strategic planning goal of
‘[f]orming intentional disciples’ and developing soft skills.”
On November 8, 2016, the Council discussed “[c]oncerns with
the sung mass,” noting that people were less attentive and en-
gaged, and a “[c]oncern … over the distribution of wine” at
services. And on March 6, 2018, the Council discussed hold-
ing a prayer service for victims of the Parkland shooting and
“[m]usic at all school liturgies.”
Just like Starkey’s role on the Council, Fitzgerald’s mem-
bership in this group made her one of a handful of “key, visi-
ble leader[s]” of the school. And despite Fitzgerald’s attempts
to undermine her contributions, there is no genuine dispute
that Fitzgerald participated in some of the religious aspects of
the Administrative Counsel. Fitzgerald, for example, partici-
pated in the Counsel’s discussion of the Archdiocese’s policy
on transgender students, expressing concern “over the part of
having to tell the transgendered youth’s parents.” And, fol-
lowing the Parkland shooting, Fitzgerald was the one who
suggested the school provide students space and time to
gather and pray for victims. Fitzgerald attempts to
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6 No. 22-2954

characterize her contributions as logistical rather than reli-

gious, but under Supreme Court precedent, a school’s expla-
nation of ministry issues is entitled to deference. See Our Lady,
140 S. Ct. at 2066 (noting that “[a] religious institution’s expla-
nation of the role of such employees in the life of the religion
in question is important”).* For these reasons, it is undisputed
that Fitzgerald was a member of and participated in a reli-
gious leadership committee at Roncalli as the Co-Director of
Guidance.
Guidance Counselor Evaluation Criteria. Also supporting the
application of the ministerial exception, Fitzgerald concedes
that she helped implement the Catholic Educator Advance-
ment Program (“CEAP”) for the evaluation of guidance coun-
selors at Roncalli. Under this program, the school evaluates
guidance counselors on their embodiment of the “Spirit of
Roncalli,” which “seeks to identify in specific ways how the
teacher/guidance counselor is living out the mission of [the]
school, supporting the fulfillment of the mission of [the]
school, and living out the charisms of Saint John XXIII.” We
found the development of these same criteria relevant in
Starkey. 41 F.4th at 940.
Attempting to distinguish her role, Fitzgerald contends
that the “religious components” of the CEAP criteria do not

* This deference applies to the church’s characterization of certain ac-

tivities as religious or secular. It does not relieve a religious institution of
its obligation at summary judgment to show there is no genuine dispute
regarding the relevant underlying facts—for example, that the employee
was expected to or did perform those religious functions in the course of
her employment. In this case, Fitzgerald fails to dispute that she, like
Starkey, participated in the Council and helped perform its religious du-
ties.
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No. 22-2954 7

reflect guidance counselor duties and that these components

were only included because Principal Weisenbach believed it
would “not be fair to the teachers” for the guidance counse-
lors not to have the same standards. But Weisenbach’s state-
ment can only reasonably be interpreted in one way: he be-
lieved it would not be fair for guidance counselors to have
different standards because he believed teachers and guid-
ance counselors shared religious job responsibilities. If he did
not believe that religious criteria were relevant for guidance
counselors, it is hard to imagine why Weisenbach would have
thought that omission of these standards would have been
unfair to teachers. See REXA, Inc. v. Chester, 42 F.4th 652, 665
(7th Cir. 2022) (declining to draw unreasonable inferences at
summary judgment).
2016 CEAP Self-Evaluation. Lastly, the record supports that
Fitzgerald held herself out as a minister in her 2016 CEAP self-
evaluation. In it, she emphasized her participation in the
school’s religious services, noting: “I am working the first re-
treat of the year, and plan to help more with St. Vincent de
Paul. I consistently attend Sunday church service, all masses
at Roncalli, and morning communion services when I am
able.” She also emphasized the ways that she used her reli-
gious beliefs in her counseling duties, stating: “I consistently
use spiritual life and resources in my counseling conversa-
tions as well as sharing my own spiritual experiences. … I am
faithful, and have no problems sharing my beliefs and my
love of God.” She concluded: “In a faith-based school, I feel
this definitely is a strength when working with young people
who are seeking direction.” These statements confirm that
Fitzgerald was conveying religious teachings in her work.
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8 No. 22-2954

On the other hand, Fitzgerald now contends that she ex-

aggerated her involvement in the religious components of the
school because “it was part of the rubric” and she “wanted to
get a raise in pay.” But this does not help her case. Even if we
accept that she exaggerated on her evaluation and did not ac-
tually perform these religious duties, the fact that she men-
tioned these activities in her self-evaluation to get a raise sup-
ports that she understood these criteria to be important to the
school. As the defendants persuasively explain, “the very fact
that she would exaggerate about performing religious tasks
to get a raise only underscores that it was Roncalli’s expecta-
tion that she perform them.”
Considering all the evidence in the record, we conclude
that there is no daylight between this case and Starkey. Our
precedent makes clear that Fitzgerald was a minister at Ron-
calli and that the ministerial exception bars this suit. But cases
like today’s—involving two plaintiffs with the same title, at
the same school, performing the same duties, and bringing
the same claims in our court—are rare. A fact-specific inquiry
remains necessary in cases where the ministerial exception is
asserted as a defense to balance the enforcement of our laws
against the protections of our Constitution. See Hosanna-Tabor,
565 U.S. at 190.
III. Conclusion
For the foregoing reasons, the district court properly
granted the defendants summary judgment on the ministerial
exception. We therefore do not address the defendants’ alter-
nate arguments for affirmance.
AFFIRMED
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No. 22-2954 9

BRENNAN, Circuit Judge, concurring. I join the majority

opinion in full, as I agree this case can be resolved on consti-
tutional grounds. I write separately to highlight that, as noted
by our colleague in Starkey v. Roman Catholic Archdiocese of In-
dianapolis, Inc., 41 F.4th 931, 945 (7th Cir. 2022) (Easterbrook,
J., concurring), the Title VII claims may also be resolved by 42
U.S.C. § 2000e–1(a), the religious employer exemption, which
takes priority to avoid constitutional questions. N.Y.C. Transit
Auth. v. Beazer, 440 U.S. 568, 582–83 (1979); Ind. Right to Life
Victory Fund v. Morales, 66 F.4th 625, 632 (7th Cir. 2023). Some
district courts in our circuit have applied an atextual reading
of that statutory exemption, so I offer some thoughts to cor-
rect course.
A. Textual Reading
Section 702(a) of Title VII provides the religious employer
exemption, which reads:
This subchapter shall not apply … to a religious
corporation, association, educational institu-
tion, or society with respect to the employment
of individuals of a particular religion to perform
work connected with the carrying on by such
corporation, association, educational institu-
tion, or society of its activities.
42 U.S.C. § 2000e–1(a). “‘This subchapter’ refers to Title 42,
Chapter 21, Subchapter VI, which comprises all of Title VII.”
Starkey, 41 F.4th at 946 (Easterbrook, J., concurring). So when
the exemption applies, “all of Title VII drops out,” including
the provisions prohibiting discrimination on non-religious
bases and providing for mixed-motive liability. Id.; see gener-
ally 42 U.S.C. § 2000e–2(a), (m).
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10 No. 22-2954

Roncalli and the Archdiocese are religious employers eli-

gible for the exemption; the parties do not contest this point.
The debate as to whether the exemption applies is with the
qualifying clause: “with respect to the employment of indi-
viduals of a particular religion.” § 2000e–1(a). Under Title VII,
“religion” is a defined term that “includes all aspects of reli-
gious observance and practice, as well as belief.” 42 U.S.C.
§ 2000e(j). But who decides the requisite religious belief, ob-
servance, or practice? And what must courts do when a cov-
ered employer supplies a religious reason for an adverse em-
ployment decision that implicates a protected class other than
religion? These questions reveal the fault lines when consid-
ering the statutory text, caselaw, and the parties’ arguments.
Fitzgerald posits that the “religion” referenced in the ex-
emption is the individual’s religion. But were that the focus,
the exemption would read differently, as the “individual’s re-
ligion.” Instead, the exemption states, “individuals of a partic-
ular religion.” § 2000e–1(a) (emphasis added). “Of” in ordi-
nary usage has both a possessive and a descriptive meaning,
and to choose between the two, context is instructive. Of, GAR-
NER’S MODERN ENGLISH (4th ed. 2016).

The term “particular” in the phrase “individuals of a par-

ticular religion” already hints at a religious employer’s selec-
tivity in employment. Considered as a whole, the exemption’s
text applies only to a religious employer and only “with re-
spect to the employment of individuals … to perform work
connected with the carrying on by such [religious employer]
of its activities.” § 2000e–1(a). This context shows that the
§ 702(a) exemption is concerned with “alleviating significant
governmental interference with the ability of religious organ-
izations to define and carry out their religious missions.”
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No. 22-2954 11

Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day

Saints v. Amos, 483 U.S. 327, 339 (1987). The focus is on a reli-
gious employer’s ability to perform its religious activities.
This conclusion is reinforced by prior, narrower enactments
of the exemption, which read “to perform work connected
with the carrying on by such [religious employer] of its reli-
gious activities.” 42 U.S.C. § 2000e-1(a) (1970) (amended 1972)
(emphasis added); 42 U.S.C. § 2000e-1(a) (1964). All arrows
point one way: “Of” is descriptive, and “individuals of a par-
ticular religion” means individuals whose beliefs, obser-
vances, or practices align with the employer’s religious expec-
tations. See Starkey, 41 F.4th at 946 (Easterbrook, J., concur-
ring) (“A religious school is entitled to limit its staff to people
who will be role models by living the life prescribed by the
faith, which is part of ‘religion’ as § 2000e(j) defines that
word.”).
B. Other Circuits
When an employer provides a religious reason for an ad-
verse employment decision that implicates a protected class
other than religion, the circuits apply this exemption in vari-
ous ways. At one end of the spectrum, the Ninth Circuit has
held that the exemption applies only to religious discrimina-
tion and has suggested it does not apply where the adverse
employment decision implicates another protected class, even
when the employer provides a religious reason. See EEOC v.
Fremont Christian Sch., 781 F.2d 1362, 1364–66 (9th Cir. 1986);
EEOC v. Pac. Press Pub. Ass’n, 676 F.2d 1272, 1274–77 (9th Cir.
1982).1 Consonant with this view, some district courts in our

1 The Second Circuit has not grappled with this issue, but it has held
that the exemption applies only to religious discrimination claims. Fratello
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12 No. 22-2954

circuit sidestep employers’ religious justifications and find

that so long as the plaintiff alleges discrimination based on a
non-religious protected class, the exemption does not apply.
See, e.g., Starkey v. Roman Cath. Archdiocese of Indianapolis, Inc.,
496 F. Supp. 3d 1195, 1201–05 (S.D. Ind. 2020); Garrick v. Moody
Bible Inst., 494 F. Supp. 3d 570, 576 (N.D. Ill. 2020); Herx v. Di-
ocese of Ft. Wayne-S. Bend Inc., 48 F. Supp. 3d 1168, 1175–76
(N.D. Ind. 2014).
Three circuits have tempered this approach by accounting
for a covered employer’s religious rationale for an adverse
employment decision, subject to a pretext inquiry. For exam-
ple, the Sixth Circuit has allowed religious employers to avoid
Title VII liability for allegedly discriminating against other
protected classes where the employment decision was
grounded in a non-pretextual religious policy. See Cline v.
Cath. Diocese of Toledo, 206 F.3d 651, 658–59, 666–68 (6th Cir.
2000); Boyd v. Harding Acad. of Memphis, Inc., 88 F.3d 410, 413–
15 (6th Cir. 1996). On a similar tack, the Fourth and Fifth Cir-
cuits have held that once a religious employer “presents con-
vincing evidence that the challenged employment practice re-
sulted from discrimination on the basis of religion,” § 702(a)
forecloses further inquiry into “whether the religious discrim-
ination was a pretext for some other form of discrimination.”
EEOC v. Miss. Coll., 626 F.2d 477, 485–86 (5th Cir. 1980); Ray-
burn v. Gen. Conf. of Seventh-Day Adventists, 772 F.2d 1164, 1166
(4th Cir. 1985); see also Fremont Christian, 781 at 1366. These
circuits have recognized that non-pretextual religious
grounds for an employment decision can exempt the em-
ployer from Title VII, even when a religious employer also

v. Archdiocese of N.Y., 863 F.3d 190, 200 n.21 (2d Cir. 2017); DeMarco v. Holy
Cross High Sch., 4 F.3d 166, 173 (2d Cir. 1993).
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No. 22-2954 13

allegedly discriminates on a basis other than religion. Para-

doxically, these same circuits have also held—contrary to the
text—that the exemption applies to religious discrimination
only. Cline, 206 F.3d at 658; Boyd, 88 F.3d at 413; Kennedy v. St.
Josephʹs Ministries, Inc., 657 F.3d 189, 192 (4th Cir. 2011); Ray-
burn, 772 F.2d at 1166; Mississippi College, 626 F.2d at 484 (cit-
ing McClure v. Salvation Army, 460 F.2d 553, 558 (5th Cir.
1972)).
Similarly, the Third Circuit has held that an employer’s re-
ligious reason triggers the exemption, while reserving the
possibility that a religious justification could be pretext where
“a plaintiff avers that truly comparable employees were
treated differently following substantially similar conduct.”
Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 450
F.3d 130, 141 (3d Cir. 2006); see Little v. Wuerl, 929 F.2d 944,
949–51 (3d Cir. 1991). But unlike other circuits, the Third Cir-
cuit has explicitly acknowledged that the exemption can bar
Title VII claims alleging discrimination on bases other than
religion, such as sex. Curay-Cramer, 450 F.3d at 141–42.
C. The Exemption in Practice
The textual reading of § 702(a) is not far from that of the
Third, Fourth, Fifth, and Sixth Circuits. Like Judge Easter-
brook, I see no principled way to limit the all-encompassing
scope of “This subchapter” when the religious employer ex-
emption applies. See Starkey, 41 F.4th at 946 (Easterbrook, J.,
concurring). So, when a covered employer demonstrates that
an adverse employment decision was made because the rele-
vant individual’s beliefs, observances, or practices did not
conform with the employer’s religious expectations, the ex-
emption would apply and bar a Title VII claim on that em-
ployment decision. But as in our sister circuits, a pretext
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14 No. 22-2954

inquiry—akin to step three of the McDonnell Douglas Corp. v.

Green framework—should apply to the employer’s proffered
religious rationale. 411 U.S. 792, 804 (1973); cf. Cline, 206 F.3d
at 658–59, 666–68; Boyd, 88 F.3d at 413–15; Rayburn, 772 F.2d
at 1166; Mississippi College, 626 F.2d at 485–86. As under the
indirect method of proof, the plaintiff would bear the burden
of showing that the religious reason is pretext for discrimina-
tion on a basis other than religion. See generally Igasaki v. Ill.
Dep’t of Fin. & Pro. Regul., 988 F.3d 948, 957 (7th Cir. 2021).
Such a pretext inquiry would mitigate concerns raised by
Fitzgerald and amici that religious employers would have li-
cense to violate Title VII should they manufacture a religious
reason for an adverse employment decision. As always, the
pretext question would not be “whether the employer’s stated
reason was inaccurate or unfair, but whether the employer
honestly believed the reason it has offered to explain the dis-
charge.” O’Leary v. Accretive Health, Inc., 657 F.3d 625, 635 (7th
Cir. 2011). But an employee could rebut honest belief by
“weaknesses, implausibilities, inconsistencies, or contradic-
tions” in the employer’s proffered reason such that a reason-
able person could find it unworthy of credence. Castro v.
DeVry Univ., Inc., 786 F.3d 559, 565 (7th Cir. 2015) (citation
omitted). If there is a genuine issue of material fact as to pre-
text, it would go to trial. If not, the exemption would bar a
plaintiff’s Title VII claims.
Fitzgerald contends that Roncalli’s assignment of ministe-
rial labels and duties to her were pretextual. But the parties
do not dispute that Roncalli and the Archdiocese had a non-
pretextual religious policy against employees entering into
same-sex marriages and that Fitzgerald was terminated
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No. 22-2954 15

because she did so. As such, Fitzgerald’s Title VII claims

would be barred by the religious employer exemption.
Here, the § 702(a) exemption overlaps with the protections
of the ministerial exception. But, no doubt, our circuit and its
district courts will have occasion to address the statutory ex-
emption in another case where a non-minister plaintiff asserts
Title VII claims against a religious employer.