FILED

NOT FOR PUBLICATION

NOV 23 2021

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHRISTOPHER ORR, No. 21-15109

Plaintiff-Appellant, D.C. No. 2:20-cv-00177-JAM-CKD v.

CHRISTIAN BROTHERS HIGH MEMORANDUM*

SCHOOL, INC., a California corporation; LORCAN BARNES, an individual,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding

Argued and Submitted November 16, 2021 San Francisco, California

Before: THOMAS, Chief Judge, McKEOWN, Circuit Judge, and RESTANI,** Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation. Christopher Orr appeals the district court’s summary judgment ruling

dismissing his racial harassment, race discrimination, retaliation, and wrongful

termination claims against Lorcan Barnes and Christian Brothers High School, Inc.

under Title VII of the Civil Rights Act of 1964, Section 1981 of the Civil Rights

Act of 1866, the California Fair Employment and Housing Act, and California

common law. We have jurisdiction pursuant to 28 U.S.C. § 1291. Because the

parties are familiar with the history of this case, we need not recount it here. We

review orders granting motions for summary judgment de novo. A.G. v. Paradise

Valley Unified Sch. Dist. No. 69, 815 F.3d 1195, 1202 (9th Cir. 2016). We affirm.

I

The district court correctly concluded that Orr qualified as a minister for the

purposes of the ministerial exception. The Supreme Court has broadly defined

what employment positions are eligible for application of the exception. In

determining whether employees at religious schools are ministers, the Supreme

Court has explained that the core consideration is their “role in conveying the

Church’s message and carrying out its mission.” Our Lady of Guadalupe Sch. v.

Morrissey-Berru, 140 S. Ct. 2049, 2063 (2020) (citing Hosanna-Tabor

Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 192 (2012)).

“[E]ducating young people in their faith, inculcating its teachings, and training

2 them to live their faith are responsibilities that lie at the very core of the mission of

a private religious school.” Id., at 2064. Thus, in Hosanna-Taylor and

Morrissey-Berru, the Supreme Court held that many teachers at religious schools

qualified as “ministers” for the purposes of the exception, even though they were

not considered formal ministers.

Here, Orr played an important role in the religious education and formation

of the students at Christian Brothers. Orr participated in religious services and

activities, aiding the school in developing a faith-based community and inculcating

faith-based teachings. He had supervisory authority over aspects of religious

instruction and programming. He also received religious education as part of his

role. In the context of the ministerial exception, there is no principled distinction

to be drawn between teachers and principals. Thus, under the Supreme Court’s

formulation of the ministerial exception, Orr qualified for its application to him.

II

Given that Orr qualified for application of the ministerial exception, and the

factual allegations underlying Orr’s harassment claims, the district court properly

concluded that his employment claims were barred by the exception.

Orr asserted claims under Title VII of the Civil Rights Act of 1964, Section

1981 of the Civil Rights Act of 1866, the California Fair Employment and Housing

3 Act, and California common law. The “ministerial exception” to application of

employment laws to religious institutions arose from the First Amendment’s

protection of the right of churches and other religious institutions to decide

“matters of church government as well as those of faith and doctrine” without

government intrusion. Morrissey-Berru, 140 S. Ct. at 2055 (citation omitted). The

ministerial exception “insulates a religious organization’s employment decisions

regarding its ministers from judicial scrutiny under Title VII.” Werft v. Desert

Southwest Annual Conference of United Methodist Church, 377 F.3d 1099,

1100–01 (9th Cir. 2004). Thus, Orr’s employment claims are precluded by the

ministerial exception.

There are certain employment claims that are not necessarily subject to the

ministerial exception. For example, in Bollard v. California Province of the

Society of Jesus, 196 F.3d 940, 947 (1999), we held that a sexual harassment claim

unrelated to a religious organization’s employment decisions was not subject to the

ministerial exception. See also Elvig v. Calvin Presbyterian Church, 375 F.3d 951,

959–66 (9th Cir. 2004) (holding that sexual harassment and retaliatory harassment

claims survived the ministerial exception).

In this case, Orr has asserted claims of racial harassment that created a

hostile work environment. Applying the Bollard/Elvig framework, such a claim

4 could survive the ministerial exception. However, unlike the circumstances in

Bollard and Elvig, the allegations here are so intertwined with the employment

decisions that the claims cannot be separated. See Elvig, 3675 F.3d at 960

(explaining that courts may not scrutinize employment actions, which are protected

from Title VII liability).

III

The district court properly concluded that Christian Brothers did not waive

the California Fair Employment & Housing Act’s (“FEHA”) statutory exemption

for non-profit religious corporations. Christian Brothers’ employee handbook

“never explicitly references FEHA” and “makes no promise that [it] will be bound

by FEHA.” Mathews v. Happy Valley Conference Center, Inc., 43 Cal. App. 5th

236, 258 (2019). Thus, there was no waiver of the religious entity statutory

exemption, which applies to Orr’s state statutory claims.

IV

In sum, Orr’s employment position qualifies for application of the

ministerial exception under Supreme Court precedent. The exception precludes his

employment claims. Under the factual circumstances presented by this case, the

Bollard/Elvig exception for hostile work environment, harassment, and retaliation

5 does not apply. The state statutory claims are precluded by the statutory exemption

for non-profit religious corporations.

AFFIRMED.

6