NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 30 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

AGNES DEIRDRE MORRISSEY-BERRU, No. 17-56624 an individual, D.C. No. Plaintiff-Appellant, 2:16-cv-09353-SVW-AFM

v.

MEMORANDUM*

OUR LADY OF GUADALUPE SCHOOL,

a California non-profit corporation,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Stephen V. Wilson, District Judge, Presiding

Argued and Submitted April 11, 2019 Pasadena, California

Before: RAWLINSON and MURGUIA, Circuit Judges, and GILSTRAP,** District Judge.

Agnes Deirdre Morrissey-Berru brought a claim under the Age

Discrimination in Employment Act (“ADEA”) against her former employer, Our

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable James Rodney Gilstrap, United States District Judge for the Eastern District of Texas, sitting by designation. Lady of Guadalupe School (the “School”). The only issue reached by this Court is

whether the district court properly granted summary judgment in favor of the

School on the basis that Morrissey-Berru was a “minister” for purposes of the

ministerial exception. We have jurisdiction under 28 U.S.C. § 1291, and we

reverse.1

This Court reviews a grant of summary judgment de novo and views the

evidence in the light most favorable to the non-moving party. Olsen v. Idaho State

Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004).

In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the

Supreme Court recognized the ministerial exception for the first time, 565 U.S.

171, 188 (2012), and considered the following four factors in analyzing whether

the exception applied: (1) whether the employer held the employee out as a

minister by bestowing a formal religious title; (2) whether the employee’s title

reflected ministerial substance and training; (3) whether the employee held herself

out as a minister; and (4) whether the employee’s job duties included “important

religious functions,” id. at 191–92. Hosanna expressly declined to adopt “a rigid

formula for deciding when an employee qualifies as a minister,” and instead

considered “all the circumstances of [the employee’s] employment.” Id. at 190.

1 We assume the parties’ familiarity with the facts and procedural history of this case.

2 Considering the totality of the circumstances in this case, we conclude that

the district court erred in concluding that Morrissey-Berru was a “minister” for

purposes of the ministerial exception. Unlike the employee in Hosanna-Tabor,

Morrissey-Berru’s formal title of “Teacher” was secular. Aside from taking a

single course on the history of the Catholic church, Morrissey-Berru did not have

any religious credential, training, or ministerial background. Morrissey-Berru also

did not hold herself out to the public as a religious leader or minister.

Morrissey-Berru did have significant religious responsibilities as a teacher at

the School. She committed to incorporate Catholic values and teachings into her

curriculum, as evidenced by several of the employment agreements she signed, led

her students in daily prayer, was in charge of liturgy planning for a monthly Mass,

and directed and produced a performance by her students during the School’s

Easter celebration every year. However, an employee’s duties alone are not

dispositive under Hosanna-Tabor’s framework. See Biel v. St. James Sch., 911

F.3d 603, 609 (9th Cir. 2018). Therefore, on balance, we conclude that the

ministerial exception does not bar Morrissey-Berru’s ADEA claim.2 See id. at

608–11 (holding that the ministerial exception did not apply under similar

circumstances).

2 As the district court indicated, Morrissey-Berru’s ADEA claim, based on her demotion, appears to be time barred. However, we leave it to the district court to resolve this issue in the first instance on remand.

3

REVERSED.

4