Opinion
Case No.: 2:19-cv-10704-JWH-SK
2023-01-03
Yaakov MARKEL, Plaintiff, v. UNION OF ORTHODOX JEWISH CONGREGATIONS OF AMERICA, a corporation; Nachum Rabinowitz, an individual; and Does 1-100, Defendants.
Michael Elliot Friedman, Law Office of Steven Friedman, Los Angeles, CA, Steven R. Friedman, Los Angeles, CA, for Plaintiff. Leonora M. Schloss, Kevin David Finley, Sevada Hakopian, Jackson Lewis LLP, Los Angeles, CA, James Putman Carter, Jackson Lewis PC, Irvine, CA, Paige Taylor Bennett, Jackson Lewis PC, Houston, TX, for Defendant Union of Orthodox Jewish Congregations of America. James Putman Carter, Jackson Lewis PC, Irvine, CA, Kevin David Finley, Akerman LLP, Los Angeles, CA, Leonora M. Schloss, Sevada Hakopian, Jackson Lewis LLP, Los Angeles, CA, Paige Taylor Bennett, Jackson Lewis PC, Houston, TX, for Defendant Nachum Rabinowitz.
Michael Elliot Friedman, Law Office of Steven Friedman, Los Angeles, CA, Steven R. Friedman, Los Angeles, CA, for Plaintiff. Leonora M. Schloss, Kevin David Finley, Sevada Hakopian, Jackson Lewis LLP, Los Angeles, CA, James Putman Carter, Jackson Lewis PC, Irvine, CA, Paige Taylor Bennett, Jackson Lewis PC, Houston, TX, for Defendant Union of Orthodox Jewish Congregations of America. James Putman Carter, Jackson Lewis PC, Irvine, CA, Kevin David Finley, Akerman LLP, Los Angeles, CA, Leonora M. Schloss, Sevada Hakopian, Jackson Lewis LLP, Los Angeles, CA, Paige Taylor Bennett, Jackson Lewis PC, Houston, TX, for Defendant Nachum Rabinowitz.
MEMORANDUM OPINION AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND REQUEST FOR JUDICIAL NOTICE [ECF Nos. 56 & 67]
John W. Holcomb, UNITED STATES DISTRICT JUDGE
This case calls upon this Court to determine whether the First Amendment's "ministerial exception" applies to a mashgiach—an individual who serves as onsite supervisor and inspector to ensure that a restaurant, winery, or other food service establishment is acceptably kosher under the Jewish religion. This Court concludes that, under the facts presented here, the "ministerial exception" forecloses the employment-related claims of the mashgiach-Plaintiff Yaakov Markel.
Before the Court are (1) the motion of Defendants Union of Orthodox Jewish Congregations of America (the "OU") and Rabbi Nachum Rabinowitz for summary judgment; and (2) Defendants' request for judicial notice. After considering the papers filed in support and in opposition, as well as the oral argument of counsel at the hearing on the Motion, the Court orders that the Motion is GRANTED and the Request for Judicial Notice is GRANTED in part and DENIED in part, for the reasons set forth herein.
Defs.' Mot. for Summ J. (the "Motion") [ECF No. 56]; Defs.' Req. for Judicial Notice (the "RJN") [ECF No. 67].
The Court considered the documents of record in this case, including the following: (1) Compl. (the "Complaint") (including its attachments) [ECF No. 1-2]; (2) the Motion (including its attachments); (3) Am. Joint Statement of Undisputed Facts and Genuine Disputes (the "Joint Statement") [ECF No. 73]; (4) Joint Ex. For the Motion, Parts A through F [ECF Nos. 60-65]; (5) Pl.'s Opp'n to the Motion (the "Opposition") [ECF No. 76]; and (6) Defs.' Reply in Supp. of the Motion (the "Reply") [ECF No. 81].
I. PROCEDURAL BACKGROUND
In September 2019, Markel filed a Complaint in California state court against Defendants asserting five claims for relief:
• Violation of Labor Code;Defendants removed the case to this Court in December 2019 on the basis of diversity jurisdiction.
• Unfair Business Practices;
• Fraud;
• Negligent Misrepresentation; and
• Failure to Provide Itemized Wage Statements.
See Complaint.
See Notice of Removal [ECF No. 1] 1:24-27.
Defendants filed their instant moving papers in September 2022, including a Joint Statement of Undisputed Facts and Genuine Disputes and corresponding exhibits. In response to Markel's Ex Parte Application to continue the hearing on the instant Motion, the Court granted Markel an additional week to file his Opposition and permitted him the opportunity to file a Supplemental Statement of Disputed Facts. The deadline passed without Markel filing a Supplemental Statement. The Court conducted a hearing on the Motion in November 2022.
See Joint Statement.
See Order Granting In Part and Denying In Part Pl.'s Ex Parte Appl. [ECF No. 75].
II. LEGAL STANDARD
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). When deciding a motion for summary judgment, the court construes the evidence in the light most favorable to the non-moving party. See Barlow v. Ground, 943 F.2d 1132, 1135 (9th Cir. 1991). However, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original). The substantive law determines the facts that are material. See id. at 248, 106 S.Ct. 2505. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. Factual disputes that are "irrelevant or unnecessary" are not counted. Id. A dispute about a material fact is "genuine" "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
Under that standard, the moving party has the initial burden of informing the court of the basis for its motion and identifying the portions of the pleadings and the record that it believes demonstrate the absence of an issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the non-moving party bears the burden of proof at trial, the moving party need not produce evidence negating or disproving every essential element of the non-moving party's case. See id. at 325, 106 S.Ct. 2548. Instead, the moving party need only prove there is an absence of evidence to support the nonmoving party's case. See id.; In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). The party seeking summary judgment must show that "under the governing law, there can be but one reasonable conclusion as to the verdict." Anderson, 477 U.S. at 250, 106 S.Ct. 2505.
If the moving party sustains its burden, the non-moving party must then show that there is a genuine issue of material fact that must be resolved at trial. See Celotex, 477 U.S. at 324, 106 S.Ct. 2548. A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. "This burden is not a light one. The non-moving party must show more than the mere existence of a scintilla of evidence." Oracle Corp. Sec. Litig., 627 F.3d at 387 (citing Anderson, 477 U.S. at 252, 106 S.Ct. 2505). The non-moving party must make that showing on all matters placed at issue by the motion as to which it has the burden of proof at trial. See Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Anderson, 477 U.S. at 252, 106 S.Ct. 2505.
Furthermore, a party "may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Fed. R. Civ. P. 56(c)(2). "The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated." Advisory Committee Notes, 2010 Amendment, to Fed. R. Civ. P. 56. Reports and declarations in support of an opposition to summary judgment may be considered only if they comply with Rule 56(c), which requires that they "be made on personal knowledge, set forth facts that would be admissible evidence, and show affirmatively that the declarant is competent to testify to the matters stated therein." Nadler v. Nature's Way Prod., LLC, 2015 WL 12791504, at *1 (C.D. Cal. Jan. 30, 2015); see also Loomis v. Cornish, 836 F.3d 991, 996-97 (9th Cir. 2016) (noting that hearsay statements do not enter into the analysis on summary judgment).
III. REQUEST FOR JUDICIAL NOTICE
Defendants request that the Court take judicial notice of the following four items:
• a U.S. Equal Employment Opportunity Council ("EEOC") "Dismissal and Notice of Rights" regarding non-party Devorah Lunger's charge against the OU dated June 14, 2012;
• the judicial decision Wechsler v. Orthodox Union, 2008 U.S. Dist. LEXIS 105780 (S.D.N.Y. Dec. 18, 2008);
• the decision of the Supreme Court of the State of New York, New York County, in Rabbi Taakov Yitzhak Horowitz v. Union of Orthodox Jewish Confederations, et al., and the corresponding transcript of the proceeding; and
• the OU's Articles of Incorporation filed with the State of New York in 1898.
See RJN.
The Federal Rules of Evidence permit the Court to take judicial notice of facts that are "not subject to reasonable dispute" because they "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). Such facts include "matters of public record." Intri-Plex Techs., Inc. v. Crest Grp., Inc., 499 F.3d 1048, 1052 (9th Cir. 2007). Additionally, "[t]he court may judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b)(c). In the Ninth Circuit, "court filings and other matters of public record" are sources whose accuracy cannot reasonably be questioned for the purposes of Rule 201. Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006). "The court . . . must take judicial notice if a party requests it and the court is supplied with the necessary information." Fed. R. Evid. 201(c)(2).
First, Lunger's EEOC complaint is not relevant to the instant Motion. Although the EEOC denied Lunger's complaint due to the ministerial exception, Lunger is not a party to this lawsuit, and Defendants have not provided sufficient grounds to introduce the EEOC complaint in the instant case. There is no evidence of overlap in facts or law between Lunger's complaint and Markel's lawsuit. Therefore, this request is DENIED.
Pl.'s Opp'n to the RJN [ECF No. 77] 3:24-27 & 4:1-5.
Next, Defendants request that the Court take judicial notice of two publicly available judicial decisions—a published opinion in Wechsler v. Orthodox Union, 2008 U.S. Dist. LEXIS 105780 (S.D.N.Y. Dec. 18, 2008), and an order dated September 7, 2016, entered by the New York Supreme Court in a case captioned as Rabbi Taakov Yitzhak Horowitz v. Union of Orthodox Jewish Confederations of America and the Manischewitz Company, together with a transcript of that proceeding. Because those are "court filings and other matters of public record" whose authenticity Markel does not dispute, Defendants' request for judicial notice is GRANTED. See Fed. R. Evid. 201(b)(c).
Finally, Markel did not oppose Defendants' request that the Court take judicial notice of the OU's Articles of Incorporation, which is a publicly filed document and which is relevant to the OU's status as a religious organization. According, this request is GRANTED, and the Court will take judicial notice of the OU's Articles of Incorporation.
IV. FACTUAL BACKGROUND
The material facts set forth below are sufficiently supported by admissible evidence and are uncontroverted. They are "admitted to exist without controversy" for the purposes of summary judgment. See Fed. R. Civ. P. 56(e)(2); L.R. 56-3. The Court deems a fact undisputed when the parties' "disputes" of that fact are merely restatements of the same fact, they do not actually contradict the substance of a fact, or they argue the relevancy and materiality of an otherwise undisputed fact. See Fed. R. Civ. P. 56(e)(2); L.R. 56-3.
Markel and Defendants object to multiple items of evidence filed with the Motion. "[O]bjections to evidence on the ground that it is irrelevant, speculative, and/or argumentative, or that it constitutes an improper legal conclusion are all duplicative of the summary judgment standard itself"; they are thus "redundant" and need not be considered. Burch v. Regents of Univ. of California, 433 F. Supp. 2d 1110, 1119 (E.D. Cal. 2006); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ("Factual disputes that are irrelevant or unnecessary will not be counted."). The Court therefore OVERRULES all such objections. Additionally, the Court need not consider some of the evidence to which the parties have objected, in order to decide the Motion. Objections not specifically addressed are OVERRULED.
A. Defendants the OU and Rabbi Rabinowitz
The OU is an Orthodox Jewish synagogue organization that represents several hundred congregations across the United States. The OU is organized as a 26 U.S.C. § 501(c)(3) not-for-profit corporation, and it receives donations from individuals, foundations, and synagogues. The OU is a religious organization whose mission is to serve the Orthodox Jewish community. It provides services and programs supporting the Orthodox Jewish community and the greater Jewish faith. The services and programs that the OU offers include religious advocacy, religious study programs, religious youth programs, and kosher food certification. One of the OU's primary services is ensuring the availability of kosher foods by acting as the leading national certification agency of kosher food products.
Joint Statement, Defs.' No. 1.
Id. at Defs.' Nos. 2 & 3; see RJN, Ex. D.
Joint Statement, Defs.' No. 4; see RJN, Ex. D.
Joint Statement, Defs.' No. 6.
Id. at Defs.' No. 7.
One of the important rituals that the Orthodox Jewish community follows is the observance of "kashruth," or keeping kosher—the body of Jewish religious laws concerning the suitability of food and the fitness for use of ritual objections. The OU provides kosher certifications, which verify that a product's ingredients, its production facility, and its actual production derivatives, tools, and machinery meet kosher standards. The OU markets its kosher certifications to producers, and it licenses those producers to label their products with the OU's symbol indicating that the goods are kosher.
Id. at Defs.' No. 11.
Id. at Defs.' No. 12.
Id. at Def.'s No. 13.
"Mashgiach" is the Hebrew term for a supervisor of kashruth. The OU certifies grape products and wine as kosher and retains mashgichim (plural of mashgiach)—who must be verified Sabbath-observing Jews with basic knowledge of the concepts of Jewish laws pertaining to winemaking, to oversee the kashruth of grape products. In order for grape products and wine to be considered kosher, the production must be restricted to handling and manipulation exclusively by Sabbath-observing Jews during specified periods. The OU's Kosher Division earns income through its kosher certification process and licensing, and the OU uses its funding to finance its activities supporting the Orthodox Jewish community.
Id. at Defs.' No. 14.
Id. at Defs.' No. 15.
Id. at Defs.' No. 49.
Rabbi Rabinowitz served as the OU's Senior Rabbinic Coordinator during all times relevant to Markel's Complaint, and he acted as Markel's supervisor during Markel's employment with the OU.
Joint Exhibit D 168:5-12; Joint Statement Defs.' No. 39.
B. Plaintiff Markel
To become a mashgiach, one must be Jewish, Sabbath-observant, and Torah-observant, and one must personally fulfill the laws of kashrut. Mashgichim must be knowledgeable about Jewish law, and they play a social and technical role in the production of kosher products. Markel was employed by the OU as a mashgiach from the summer of 2011 to March 18, 2018. While Markel was employed as a mashgiach, he worked at facilities at Delano and Fresno, California, at which the OU had contracts to oversee the kosher production of grape products.
Joint Statement Defs.' No. 19.
Id. at Defs.' No. 21.
Complaint ¶ 6.
Id.; see also Joint Statement Defs.' No. 23.
Before the OU hired Markel as a mashgiach, Markel was required to submit a letter from an Orthodox Rabbi that he was a Sabbath observer who was trustworthy and fit to carry out the OU's religious mission. Markel describes himself as a "Frum Jew"—a Yiddish term for religiously devoted—and he avers that he grew up in an Orthodox household and attended a Jewish Day School where he learned about keeping kosher. Prior to his work with the OU, Markel was employed for more than 10 years as a mashgiach with a different kosher agency. Additionally, Markel worked at his father's kosher supervision agency for years before he began his employment with the OU.
Joint Statement Defs.' Nos. 29 & 30.
Id. at Defs.' No. 31-33.
Id. at Defs.' No. 34.
Id. at Defs.' No. 35.
Markel served as a head mashgiach for the OU. He wrote job descriptions for mashgichim performing hashgacha—the rabbinic supervision by a mashgiach—and provided detailed instructions via email regarding the koshering of grape products at the Delano and Gallo wineries. Markel would consult with poskim—experts—who assisted him with his duties as a mashgiach, and he would report halachic issues—issues pertaining to Jewish law—to Rabbi Rabinowitz and others. As a head mashgiach, Markel would request Piskei Dinim—rabbinical rulings on Jewish law—for assistance with issues or operations at the wineries.
Id. at Defs.' No. 26 & 27.
Id. at Defs.' No. 38-39.
Id. at Defs.' No. 38; Joint Exhibit B 56:4-25, 57:1-4, 57:24-25, & 58:1-5.
In his capacity as a head mashgiach for the OU, Markel was also responsible for supervising workers, and he would provide them with instructions on how to maintain kosher standards at the wineries. Markel would make determinations regarding whether the wine was meshuval—boiled or cooked—at which point a non-Jew could handle the wine without negatively impacting its kosher status. Markel also trained others on procedures for koshering tanks—i.e., cleaning them to kosher specifications—and he was generally responsible for implementing OU policies and for kosher integrity at the Delano winery.
Joint Statement Defs.' No. 40; after reviewing Joint Exhibit A 32:25-33:21, the Court did not find evidence that Markel instructed non Jewish workers.
Id. at Defs.' No. 41.
Id. at Defs.' No. 42.
V. DISCUSSION
A. The "Ministerial Exception"
It appears that courts within the Ninth Circuit have not addressed whether the First Amendment's "ministerial exception" applies to mashgichim. The First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. CONST. amend. I. "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." Orr v. Christian Bros. High Sch., Inc., 2021 WL 5493416, at *1 (9th Cir. Nov. 23, 2021) (non-precedential) (citing Our Lady of Guadalupe Sch. v. Morrissey-Berru, — U.S. —, 140 S. Ct. 2049, 2055, 207 L.Ed.2d 870 (2020)), cert. denied sub nom. Orr v. Christian Bros. Sch., — U.S. —, 143 S.Ct. 91, 214 L.Ed.2d 16 (2022).
The Supreme Court recently held that "[s]tate interference in [matters of faith and doctrine] would obviously violate the free exercise of religion, and any attempt by government to dictate or even to influence such matters would constitute one of the central attributes of an establishment of religion." Morrissey-Berru, 140 S. Ct. at 2060. The independence of religious institutions in matters of "faith and doctrine" is closely linked to "matters of church government," and the "ministerial exception" protects "their autonomy with respect to internal management decisions that are essential to the institution's central mission." Id. (citing Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171, 186, 132 S.Ct. 694, 181 L.Ed.2d 650 (2012)).
Under the "ministerial exception," "courts are bound to stay out of employment disputes involving those holding certain important positions with churches and other religious institutions." Id. The rule's name stemmed from initial cases concerning individuals described as "ministers," "[b]ut the ministerial exception encompasses more than a church's ordained ministers." Alcazar v. Corp. of the Cath. Archbishop of Seattle, 627 F.3d 1288, 1291 (9th Cir. 2010) (en banc). The Supreme Court and the Ninth Circuit have declined "to adopt a rigid formula for deciding when an employee qualifies as a minister"; instead, courts must analyze individual plaintiffs within the context of their religious employment. Morrissey-Berru, 140 S. Ct. at 2062; Alcazar, 627 F.3d at 1291-92.
In Hosanna-Tabor, the Supreme Court listed four circumstances that might qualify an employee as a "minister" within the meaning of the "ministerial exception": (1) when a religious organization holds out an employee as a minister by bestowing a religious title; (2) when an employee's title as minister reflects a significant degree of religious training followed by a formal process of commissioning; (3) when an employee's job duties reflect a role in conveying the religious organization's message and carrying out its mission; and (4) when an employee holds him or herself out as a religious leader. See Puri v. Khalsa, 844 F.3d 1152, 1160 (9th Cir. 2017) (citing Hosanna-Tabor, 565 U.S. at 191-92, 132 S.Ct. 694). B. Applying the "Ministerial Exception" to Mashgichim
Although there is no binding precedent regarding the "ministerial exception" and kosher food supervisors, two persuasive authorities apply the doctrine to the facts presented here. First, in Morrissey-Berru, the Supreme Court noted that "since many religious traditions do not use the title 'minister,' it cannot be a necessary requirement" for applying the "ministerial exception" to religious employees. Morrissey-Berru, 140 S. Ct. at 2064. The Supreme Court highlighted with approval "[a] brief submitted by Jewish organizations [that] makes the point that 'Judaism has many "ministers," ' that is, 'the term "minister" encompasses an extensive breadth of religious functionaries in Judaism.' " Id. In the specified amicus brief, the authors stated:
In today's Jewish communities, teachers, cantors, kosher-food supervisors , and administrators of other religious facilities carry out functions that are central in Jewish observance. All these "ministers" are appointed and supervised by their Jewish communities. Government does not designate them or participate in their selection.Brief Amicus Curiae of Colpa, Agudath Israel of America, Agudas Harabbonim, National Council of Young Israel, Orthodox Jewish Chamber of Commerce, Rabbinical Alliance of America, and Rabbinical Council of America in Support of Petitioners, 2020 WL 687700, at *3-*4 (emphasis added).
The same amici also urged the Supreme Court to adopt the "ministerial exception" as applied to kashruth supervisors in Shaliehsabou v. Hebrew Home of Greater Washington, Inc., 363 F.3d 299 (4th Cir. 2004). In Shaliehsabou, the Fourth Circuit held that a Jewish nursing home could not be held liable under federal and state labor laws because the plaintiff—a kosher supervisor—was considered a "minister" under the "ministerial exception." Id. at 311.
The plaintiff in Shaliehsabou worked as a mashgiach for the defendant. The court defined the position as "an inspector appointed by a board of Orthodox rabbis to guard against any violation of the Jewish dietary laws." Id. at 301. The defendant was a non-profit religious and charitable corporation whose mission was, according to its by-laws, to serve "aged of the Jewish faith in accordance with the precepts of Jewish law and customs, including the observance of dietary laws." Id. As a mashgiach, the plaintiff was responsible for the nursing home's compliance with kashruth. He was selected by the Rabbinical Council of Greater Washington (the "Vaad") because he was knowledgeable about the basic laws of kashruth and was Sabbath-observant. The plaintiff would liaise with the Vaad on difficult questions of Jewish dietary law. Id. at 303-04.
The plaintiff resigned as a mashgiach and sued the defendant for unpaid overtime wages under the Fair Labor Standards Act ("FLSA") and Maryland wage and hour law. Id. at 303-04. The Fourth Circuit examined two questions in connection with its application of the "ministerial exception" to the mashgiach plaintiff:
• Did the plaintiff serve as a minister?
• Was the defendant a religious institution?
The court held that mashgichim were "ministers" for the purposes of the "ministerial exception" because their "primary duties included supervision and participation in religious ritual and worship, and [the plaintiff's] position is important to the spiritual mission of Judaism." Id. at 309. The court noted that the "failure to apply the ministerial exception in this case would denigrate the importance of keeping kosher to Orthodox Judaism" and that mashgichim "occupied a position that is central to the spiritual and pastoral mission of Judaism" because "in the Jewish faith, non-compliance with dietary laws is a sin." Id.
The court also held that the defendant Jewish nursing home was a religious institution because "a religiously affiliated entity is a 'religious institution' for purposes of the ministerial exception whenever that entity's mission is marked by clear or obvious religious characteristics." Id. at 310. Although the defendant offered and profited from secular services, the court held that entities can provide secular services and still have a substantially religious character. Id. Furthermore, the defendant's by-laws defined it as a charitable and non-profit corporation with a mission to care for the elderly "aged of the Jewish faith in accordance with the precepts of Jewish law and customs," and, in accordance with that mission, it "employed mashgichim to ensure compliance with the Jewish dietary laws." Id. at 310-11.
Consequently, the court held that the defendant Jewish nursing home was a religious institution for purposes of the "ministerial exception," and the Fourth Circuit upheld the district court's grant of summary judgment in favor of the defendant and held it not liable for overtime wages pursuant to the "ministerial exception." Id. at 311.
C. Applying the "Ministerial Exception" to Markel
To determine whether the "ministerial exception" applies in this case, the Court must analyze whether: (1) Markel served as a "minister"; and (2) the OU was a religious organization. If the answers to those two questions are "yes," then the Court must look to each of Markel's claims for relief and ascertain whether the "ministerial exception" bars relief.
1. "Minister" Analysis
It is undisputed that Markel worked as a mashgiach for the OU and that he supervised the kosher production of wine. Markel states in his Complaint that:
Beginning on or about the summer of 2011 and continuing until March 15, 2018, plaintiff was employed by defendant as a supervisor of kashruth (known by the Hebrew term "mashgiach"), the system of Jewish rules that ensure that food products are kosher according to religious regulations.Although of questionable relevance to the instant action, Markel argues that this fact is in dispute in view of the OU's previous statements in unrelated litigation. Specifically, Markel provides a declaration from Brian Yarmeisch, who was an opposing party in a different lawsuit pending in New York state court—in which the OU intervened on behalf of the defendants—regarding regulations of kosher certifications and businesses. Markel contends that the OU previously argued that kosher food production "is not a religious exercise" and that "[k]osher food, in and of itself, has no religious significance." But Markel's citation takes the OU's statement out of context. The following sentences from the OU's brief in that previous New York state court case reveal that kosher foods nevertheless involve Jewish religious beliefs:
That certain foods are designated as "kosher" does not signify or imply that they have received a special blessing. Food that is "kosher" is merely food that is fit or proper for consumption according to Jewish dietary laws. It is the observance the dietary laws themselves , as opposed to the actual food product , which implicates Jewish religious beliefs .
Complaint ¶ 6.; see also Joint Statement Defs.' No. 23.
Opposition 7:6-9.
Joint Ex. E 302 ¶¶ 6 & 7.
Id. at 302 ¶ 13.
Id. at 302 ¶ 15.
Id. (emphasis added).
Despite the statements that Yarmeisch made in his declaration, nothing in the OU's prior litigation position contradicts the facts that Markel was employed as a mashgiach and that he was tasked with duties involving Jewish religious beliefs.
Moreover, Markel does not identify a genuine dispute of material fact here because the implication of Jewish religious belief is what designates mashgichim as "ministers":
The Hebrew term kashrut, meaning "fit" or "proper," is "the collective term for the Jewish laws and customs pertaining to the types of food permitted for consumption and their preparation." Because the dietary laws are closely related to holiness in several passages of the Bible, many scholars believe that the dietary laws were established to promote holiness rather than hygiene.Gerald F. Masoudi, Kosher Food Regulation and the Religion Clauses of the First Amendment, 60 U. Chi. L. Rev. 667, 668 (1993) (footnotes omitted). Kosher preparation is particularly important for wine:
On the Orthodox view, Jews are forbidden to drink wine prepared by a non-Jew: "The interdiction against the drinking of non-Jewish wine is so severe, that even if a gentile merely touches wine prepared by a Jew it is still prohibited, unless the bottle was securely corked and sealed." However, only the Orthodox observe these strict prohibitions. In the United States, the Rabbinical Assembly of the Conservative movement requires the Orthodox standard only for the wine used during religious ceremonies.Id. at 671; see also Elick v. Keefe Commissary Network, LLC, 2020 WL 3429482, at *1 n.1 (Md. Ct. Spec. App. June 23, 2020) (non-precedential). Because mashgiach are undisputedly implicated in Jewish religious beliefs, for the purposes of the "ministerial exception" the Court concludes that their duties are consistent with that of a "minister."
2. Hosanna-Tabor Factors
Because the record is clear that Markel served as a mashgiach for the OU, the Court turns next to analyzing the Hosanna-Tabor factors to assist with determining whether Markel falls within the "ministerial exception."
First, as described above, the OU designated Markel as a head mashgiach at the Delano winery, and he was tasked with overseeing the kosher production of wine. Although a mashgiach may not be a "minister in the usual sense of the term—[he] was not a pastor or deacon, did not lead a congregation, and did not regularly conduct religious services"—Markel's title and assigned duties as mashgiach satisfy the first Hosanna-Tabor factor. See Morrissey-Berru, 140 S. Ct. at 2062. As mashgiach, Markel was integral to the koshering of wine for use by Orthodox Jews and the greater Jewish community, and his efforts were necessary in fulfilling an important function of the Jewish faith.
Joint Statement Defs.' No. 23.
Second, Markel's position "reflected a significant degree of religious training followed by a formal process of commissioning." Id.; see also Puri, 844 F.3d at 1161 (stating that "significant religious training" may be indicative of a ministerial position). For Markel to be hired as a mashgiach, he was required to be a Sabbath-observant Jew who kept kosher, and he needed a letter from an Orthodox Rabbi averring that Markel was fit and trustworthy to carry out the OU's religious mission. Additionally, Markel was required to have attended Jewish Day School (i.e. yeshiva), and, while Markel's Jewish education was limited to middle school and part of high school, it is undisputed that he learned about keeping kosher.
Id. at Defs.' Nos. 26 & 27.
Id. at Defs.' No. 33.
When the Supreme Court reversed the Ninth Circuit in Morrissey-Berru, it held that "judges have no warrant to second-guess that judgment or to impose their own credentialing requirements." Morrissey-Berru, 140 S. Ct. at 2068. Accordingly, the Court accepts the OU's educational and training requirements for mashgichim and finds the second factor satisfied.
Third, Markel's duties as a head mashgiach reflected the religious mission of the OU and the importance of supervising the kosher production of wine for the Orthodox Jewish faith. It is undisputed that Markel held himself out as a "head mashgiach" in his correspondence with OU clients, and even in his Complaint Markel recognized that his work duties were centered on applying Jewish rules of kashruth for food production according to religious regulations. Markel would consult with poskim on questions of Jewish law, and he reported issues to rabbis senior to him in the OU while he executed his duties as a mashgiach. Markel may not have had the same teaching role as the plaintiff in Hosanna-Tabor, but he did instruct other workers at the Delano winery regarding how to produce kosher wine, and he applied the tenants of the Jewish faith to his work. Because Markel's duties reflected a religious mission as a head mashgiach, the third and fourth factors are met. See Hosanna-Tabor, 565 U.S. at 192, 132 S.Ct. 694.
Id. at Defs.' No. 26; Complaint ¶ 6.
Joint Statement Defs.' Nos. 38-39.
Id. at Defs.' No. 40.
D. Applying the "Ministerial Exception" to the OU
It is undisputed that the OU is a 26 U.S.C. § 501(c)(3) not-for-profit corporation with a mission of supporting the Orthodox Jewish faith. Nevertheless, Markel contends that the OU should not qualify as a religious institution and that the OU is best characterized as a business because it operates its kosher certification division for profit. Markel notes that the OU claimed $10 million in federal aid through COVID-19-related loan forgiveness programs as a food service contractor.
Id. at Defs.' Nos. 2 & 3; see Defs.' Req. for Judicial Notice, Ex. D.
Id. at Pl.'s Nos. 15 & 16; Joint Ex. D 178-200.
The Ninth Circuit has considered the requirements for an entity to be considered a "religious organization" within the context of Title VII claims, and it has held that courts must "conduct a factual inquiry and weigh '[a]ll significant religious and secular characteristics . . . to determine whether the corporation's purpose and character are primarily religious.' " Spencer v. World Vision, Inc., 570 F. Supp. 2d 1279, 1283 (W.D. Wash. 2008), aff'd, 619 F.3d 1109 (9th Cir. 2010), and aff'd, 633 F.3d 723 (9th Cir. 2011) (citing EEOC v. Townley Eng. & Mfg. Co., 859 F.2d 610, 618 (9th Cir. 1988)). "Each case must turn on its own facts." Id.
The Ninth Circuit's case law concerning tests for "religious organizations" is scattered; several decisions present different tests. In Townley, the Ninth Circuit considered the secular characteristics of the corporation at issue:
(1) the company's for-profit status; (2) the company's purpose—production of a secular product; (3) the company's non-affiliation with or support by a church; and (4) the company's lack of religious purpose in its articles of incorporation.Spencer, 570 F. Supp. 2d at 1284 (citing Townley, 859 F.2d at 619). The Ninth Circuit also considered the corporation's religious characteristics:
(1) the enclosure of Gospel tracts in its outgoing mail; (2) the inclusion of printed Bible verses on its commercial documents (such as invoices and purchase orders); (3) the financial support given to churches, missionaries, and ministries; (4) the mandatory weekly devotional service for employees; and (5) the "discipleship [the corporation's founders and majority owners] have for the Lord Jesus Christ."Id. Incorporating the Ninth Circuit case law cited above, the Third Circuit held that a Jewish community center "qualified as a 'religious corporation, organization, or institution' " and applied a nine-factor test:
(1) whether the entity operates for a profit; (2) whether it produces a secular product; (3) whether the entity's articles of incorporation or other pertinent documents state a religious purpose; (4) whether it is owned, affiliated with or financially supported by a formally religious entity such as a church or synagogue; (5) whether a formally religious entity participates in the management, for instance by having representatives on the board of trustees; (6) whether the entity holds itself out to the public as secular or sectarian; (7) whether the entity regularly includes prayer or other forms of worship in its activities; (8) whether it includes religious instruction in its curriculum, to the extent it is an educational institution; and (9) whether its membership is made up by coreligionists.LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d 217, 226 (3d Cir. 2007). Although the district court's decision in Spencer was upheld by the Ninth Circuit—a non-profit Christian humanist organization was a "religious organization" for Title VII purposes by applying the nine LeBoon factors—the panel disagreed over which test to use and merely held that an entity is a "religious organization" "if it is organized for a religious purpose, is engaged primarily in carrying out that religious purpose, holds itself out to the public as an entity for carrying out that religious purpose, and does not engage primarily or substantially in the exchange of goods or services for money beyond nominal amounts." Spencer v. World Vision, Inc., 633 F.3d 723, 724 (9th Cir. 2011). Although the Ninth Circuit denied a petition for rehearing en banc, Judge O'Scannlain elaborated in his concurrence that an entity should be considered a "religious organization" when it:
(1) is organized for a self-identified religious purpose (as evidenced by Articles of Incorporation or similar foundational documents), (2) is engaged in activity consistent with, and in furtherance of,
those religious purposes, and (3) holds itself out to the public as religious.Spencer, 633 F.3d at 734 (O'Scannlain, J., concurring). Although the above-cited Ninth Circuit case law considered only Title VII complaints in applying the "ministerial exception," it provides a starting point in evaluating whether the OU is a religious institution for the purpose of this case.
The Ninth Circuit has also held that the following six factors are relevant in the educational context for a religious school: (1) ownership and affiliation; (2) purpose; (3) faculty; (4) student body; (5) student activities; and (6) curriculum. See EEOC v. Kamehameha Schools/Bishop Estate, 990 F.2d 458, 461-63 (9th Cir. 1993).
Beginning with Judge O'Scannlain's simplified test in Spencer, the OU meets the requirements for a "religious organization." First, the OU's Articles of Incorporation, filed with the State of New York in 1898, provide that:
[t]he objects of said corporation shall be to uphold and strengthen the observance of orthodox Judaism, otherwise designated as traditional, historical or biblical-rabbinical Judaism, by associating and uniting such congregations, organizations and individuals as adhere to or profess orthodox Judaism and affording them mutual aid and encouragement in religious faith and devotion to their common ideals, by maintaining or encouraging the maintenance of synagogues, schools, and other institutions for teaching or practicing the principles of orthodox Judaism; to promote the interests of orthodox Judaism by all lawful and proper means.The OU's services include kosher food production that enables religiously devout Jews to keep kosher. The duties that Markel performed as a mashgiach were necessary to produce kosher wine, which is essential to Jewish religious ceremonies. Additionally, the OU provides education and advocacy programs to the larger Jewish community. Weighing the three Spencer factors, the OU should be considered a "religious organization" for purpose of the "ministerial exception." Spencer, 633 F.3d at 734 (O'Scannlain, J., concurring).
Defs.' Req. for Judicial Notice, Ex. D § 2.
Joint Statement Defs.' No. 6.
Markel's primary objection to the OU's religious status is that the OU earns an income from its kosher certification business and it uses that income to support business operations in non-religious ways. It is undisputed, though, that the OU is a 26 U.S.C. § 501(c)(3) not-for-profit corporation, which means that the OU is exempt from taxation. See 26 U.S.C. § 501(c)(3). Although Markel claims that the OU "generates $130 million in revenue annually and pays its top employees high six figure salaries," that number comes from the minutes of a board meeting by the Build NYC Resource Corporation, and it is inadmissible hearsay. Fed. R. Evid. 801. Furthermore, when evaluating the OU for a tax-exempt § 501(c)(3) bond, the Build NYC board unanimously approved the OU's application—bolstering the evidence that the OU is a not-for-profit corporation.
Opposition 6:6-20.
Joint Statement Defs.' No. 2.
Joint Ex. E 488.
Id.
Although Markel alludes to arguments that the OU is a fraudulent § 501(c)(3) not-for-profit corporation, he does not present admissible evidence that materially disputes that fact. The OU's not-for-profit status is not invalidated simply because the OU's kosher certification division generates a profit and thereby funds its religious and advocacy missions. Morrissey-Berru and Hosanna-Tabor involved religious schools that generated income, but that fact did not disqualify them from qualifying as "religious institution[s]." See Morrissey-Berru, 140 S. Ct. at 2055.
Opposition 9:1-11.
Markel's arguments concerning the OU's acceptance of COVID relief funds similarly fail to negate the OU's religious status. It is undisputed that the OU received $10 million through its application for the Paycheck Protection Program and that the OU applied under two North American Industry Classification System ("NAICS") numbers—"Religious Organization" and "Food Service Contractor." The OU explained in its addendum to its Paycheck Protection Program application that it qualified under both NAICS numbers, and Markel presents no evidence or case law that invalidates the OU's status as a "religious institution."
Joint Ex. D 183.
Id.
Under either the simplified test in Spencer or the more involved balancing tests in Townley or LeBoon, this Court concludes that the OU is a "religious institution" for the purpose of the "ministerial exception." Markel does not present any admissible evidence to create a triable dispute of fact that the income earned by the OU's kosher division is outweighed by its religious mission and charitable programming. Although balancing tests often require courts to weigh evidence in a manner inappropriate for summary judgment, in this instance the Court need not undertake such a balancing test because Markel has failed to adduce sufficient evidence for a reasonable jury to find that the OU is not a "religious institution" under governing law. See Celotex Corp., 477 U.S. at 325, 106 S.Ct. 2548 ("[T]he burden on the moving party may be discharged by 'showing' . . . that there is an absence of evidence to support the nonmoving party's case."); see also Oracle Corp. Sec. Litig., 627 F.3d at 387 ("[T]he non-moving party must come forth with evidence from which a jury could reasonably render a verdict in the non-moving party's favor.") (citing Anderson, 477 U.S. at 252, 106 S.Ct. 2505). Because the Court also concludes as a matter of law that Markel served as a "minister" in his role as a mashgiach, his claims must be evaluated within the context of the "ministerial exception."
E. Claim Analysis
All five claims for relief that Markel asserts in his Complaint are anchored in violations of state employment and wage-related law. The California Labor Code serves as the foundation for Markel's tort-based claims, and all claims stem from the same facts regarding the OU's employment-related decision making.
Although the most recent Supreme Court cases of Morrissey-Berru and Hosanna-Tabor involved wrongful termination claims against religious employers, the Ninth Circuit has held that the "ministerial exception" governs wage-related claims as well. In Alcazar, the Ninth Circuit—sitting en banc—held that the "ministerial exception" barred wage-related claims against an employer in connection with a plaintiff's ministerial duties. Alcazar, 627 F.3d at 1293.
In that case, a plaintiff who was training in Catholic seminary to be a priest asserted claims for unpaid wages under Washington's Minimum Wage Act. Although the plaintiff was not yet ordained, the Ninth Circuit held that the church's employment decisions concerning him were protected by the First Amendment. Id. at 1292. The Ninth Circuit stated that the "ministerial exception" "exempts a church's employment relationship with its 'ministers' from the application of some employment statutes, even though the statutes by their literal terms would apply." Id. at 1290.
The Ninth Circuit's decision is in line with the Fourth Circuit in Shaliehsabou, which held that mashgichim fell within the "ministerial exception," which barred actions under the FLSA for unpaid wages. Shaliehsabou, 363 F.3d at 303-04. The Ninth Circuit has also upheld district courts applying the "ministerial exception" to bar wage-related claims under California law. See Headley v. Church of Scientology Int'l, 2010 WL 3157064, at *5 (C.D. Cal. Aug. 5, 2010), aff'd, 687 F.3d 1173 (9th Cir. 2012) ("Because the ministerial exception is constitutionally compelled, it applies as a matter of law across statutes, both state and federal, that would interfere with the church-minister relationship' . . . . The exception 'encompasses all tangible employment actions and disallows lawsuits for damages based on lost or reduced pay.' ").
Markel's tort-based claims for fraud and negligent misrepresentation are also barred under the "ministerial exception," because "[j]ust as the ministerial exception precludes . . . claims that implicate Defendants' protected ministerial decisions, it similarly precludes [the plaintiff] from seeking remedies that implicate those decisions." Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 966 (9th Cir. 2004) (emphasis in original). Markel's claims under the California Labor Code underly his entire Complaint, and all of the employment-related decisions by the OU implicated in each claim are barred by the "ministerial exception."
Markel's claims against Rabbi Rabinowitz are similarly barred, as courts have held that the "ministerial exception" insulates both religious organizations and individually named defendants. In Higgins v. Maher, 210 Cal. App. 3d 1168, 258 Cal. Rptr. 757 (1989), a priest who was terminated from his position filed both a state contract and tort claim against the diocese and an individual bishop. Id. at 1172-73, 258 Cal.Rptr. 757. The California appellate court held that the bishop's actions were "part and parcel" to his "administration of his ecclesiastical functions," and, therefore, they were subject to an ecclesiastical exemption. Id. at 1176, 258 Cal.Rptr. 757.
Here, Markel makes no allegations against Rabbi Rabinowitz that are separate from the employment-related decisions that the OU made. Accordingly, summary judgment is GRANTED in favor of Defendants on all of Markel's claims for relief.
VI. CONCLUSION
For the foregoing reasons, the Court hereby ORDERS as follows:
1. The Court GRANTS Defendants' Motion in full and DISMISSES Markel's Complaint with prejudice.
2. The Court GRANTS in part and DENIES in part the OU's request for judicial notice.
3. Judgment shall issue accordingly.
IT IS SO ORDERED.