ELVIG v. CALVIN PRESBYTERIAN CHURCH

FISHER, Circuit Judge.

Plaintiff Monica L. McDowell Elvig ("Elvig"), an ordained Presbyterian minister, brought claims under Title VII against her employer Calvin Presbyterian Church, North Puget Sound Presbytery (together the "Church") and her supervisor Pastor Will Ackles (collectively "Defendants"), alleging that she was sexually harassed and retaliated against by the Defendants. The district court dismissed Elvig's complaint, concluding that her Title VII claims fell within the scope of the so-called "ministerial exception" to Title VII. This exception saves Title VII from unconstitutionality under the First Amendment by requiring that Title VII suits be dismissed when they would impermissibly encroach upon the free exercise rights of churches or excessively entangle government and religion.

Applying our decision in Bollard v. California Province of the Society of Jesus, 196 F.3d 940 (9th Cir. 1999), we reverse and remand. Under the ministerial exception, a church's decisions about whom to employ as a minister are protected by the First Amendment. Thus to the extent Elvig's sexual harassment and retaliation claims implicate the Church's ministerial employment decisions, those claims are foreclosed. Nonetheless, Elvig has stated narrower and thus viable sexual harassment and retaliation claims that do not implicate protected employment decisions. Elvig's sexual harassment claim can succeed if she proves that she suffered a hostile work environment and if the Defendants do not prove that Elvig unreasonably failed to take advantage of available measures to prevent and correct that hostile environment. Elvig's retaliation claim can succeed if she proves that she suffered retaliatory harassment — here, in the form of verbal abuse and intimidation — because of her complaints to the Church and the U.S. Equal Employment Opportunity Commission ("EEOC"). Should the Church be found liable on either of these claims, Elvig may recover damages for consequent emotional distress and reputational harm. Within this framework, Elvig's Title VII suit can provide her with redress for sexual harassment and retaliation without attaching liability to ministerial employment decisions protected by the First Amendment.

Because this case comes to us on the pleadings only, we must assume the facts Elvig alleges in her complaint are true. According to her, she served as the Associate Pastor of Calvin Presbyterian Church from December 2000 to December 2001. Shortly after she took this position, defendant Will Ackles, the Church's Pastor, engaged in sexually harassing and intimidating conduct toward her, creating a hostile working environment. Invoking Church procedures, Elvig made a formal complaint of sexual harassment against Ackles to the Church, which she says took no action to stop the harassment or alleviate the hostile working environment. For his part, Ackles retaliated against her by relieving her of certain duties, verbally abusing her and otherwise engaging in intimidating behavior. Again, the Church, which knew or should have known of Ackles' improper behavior, failed to act.

Elvig filed a charge of discrimination with the EEOC in October 2001 and received a right-to-sue letter in December 2001. The Church placed her on unpaid leave on December 4, 2001, and the Presbytery voted later that month to terminate its employment relationship with her. The Presbytery subsequently notified Elvig that its Committee on Ministry had decided against permitting Elvig to circulate her church resume, or "personal information form," effectively preventing her from acquiring other pastoral employment in any Presbyterian church in the United States. Elvig then filed a second charge of discrimination with the EEOC alleging unlawful retaliation and, on March 25, 2002, received a second right-to-sue letter.

Elvig timely filed a complaint in federal district court for the Western District of Washington. The complaint asserted federal causes of action for sexual harassment, hostile work environment and retaliation, all in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as well as state law claims for defamation, negligent supervision and violations of the Washington Law Against Discrimination, Wash. Rev. Code §§ 49.60.210 and 49.60.220. Elvig sought back pay, front pay and damages for emotional distress and harm to her reputation. She also sought injunctive relief, including a preliminary injunction requiring the Defendants to permit her to circulate her personal information form.

The district court dismissed Elvig's Title VII suit under Rule 12(b)(6) for failure to state a claim. The court concluded that Elvig's allegations implicated the Church's constitutionally protected right to choose its ministers and were, therefore, barred by the ministerial exception to Title VII. The district court concluded that consideration of Elvig's claims would violate the Church's freedom of religion under the First Amendment's Free Exercise Clause, interjecting the court into ecclesiastical decision-making and involving it in the Church's choice of its ministers. Moreover, the court concluded that reviewing Elvig's retaliation claims would cause government entanglement with the Church's internal governance, in violation of the Establishment Clause. Having dismissed the federal claims, the court declined jurisdiction over the remaining state claims and dismissed them as well. Elvig timely appealed.

In dismissing Elvig's complaint, the district court mistakenly applied Federal Rule of Civil Procedure 12(b)(6). A Rule 12(b)(6) motion must be made before the responsive pleading. Fed.R.Civ.P. 12(b)(6). Here, the Defendants filed their motion to dismiss after filing their answer. Thus, the motion should have been treated as a motion for judgment on the pleadings, pursuant to Rule 12(c) or 12(h)(2). Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980). In this appeal, therefore, we treat the district court's dismissal as a grant of a motion for judgment on the pleadings. Id.

We review de novo a district court's dismissal of a complaint for judgment on the pleadings. See Weeks v. Bayer, 246 F.3d 1231, 1234 (9th Cir. 2001). At this stage in the proceedings, we accept as true all allegations in Elvig's complaint and treat as false those allegations in the answer that contradict Elvig's allegations. Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1301 n. 2 (9th Cir. 1992).

The Defendants contend that the First Amendment requires us to dismiss Elvig's claims for want of subject matter jurisdiction. We disagree. Federal question jurisdiction is statutorily established, giving district courts "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Elvig brings federal claims under 42 U.S.C. § 2000e. A Rule 12 judgment on the pleadings is not equivalent to a dismissal for failure to establish federal question jurisdiction under 28 U.S.C. § 1331, and a judgment on the pleadings may be appropriate even when federal question jurisdiction is established. As we explained in Bollard, "[a]ny non-frivolous assertion of a federal claim suffices to establish federal question jurisdiction, even if that claim is later dismissed on the merits." Bollard, 196 F.3d at 951; see also Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946) ("Jurisdiction . . . is not defeated . . . by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover. . . . [T]he failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction."). We therefore hold that the ministerial exception does not require us to dismiss Elvig's claims for lack of subject matter jurisdiction.

In recognition of the tension between the statutory protection Title VII provides to victims of sexual harassment and the constitutional protection religious institutions enjoy under the First Amendment, courts have crafted a "ministerial exception" to Title VII "in order to insulate the relationship between a religious organization and its ministers from constitutionally impermissible interference by the government." Bollard, 196 F.3d at 945; see, e.g., EEOC v. Roman Catholic Diocese of Raleigh, N.C., 213 F.3d 795, 800-01 (4th Cir. 2000). For this Circuit, Bollard establishes the exception's parameters. As the present case demonstrates, applying the principles set forth in Bollard requires a nuanced analysis in order to avoid trenching on religious freedom without entirely eviscerating Congress' "otherwise fully applicable command" to protect employees from sex discrimination — even employees of religious organizations. Bollard, 196 F.3d at 944; see also id. at 948 ("[T]he strength of the government's interest, expressed in the text of Title VII, in protecting employees against sexual harassment is difficult to overstate. As we have said previously, it is a matter of the `highest priority.'" (quoting EEOC v. Pac. Press Publ'g Ass'n, 676 F.2d 1272, 1280 (9th Cir. 1982))). Because of its importance to our analysis here, and to identify the extent to which Elvig's circumstances replicate or extend beyond those addressed in Bollard, we shall first review Bollard in some detail.

John Bollard was a novitiate in the Society of Jesus, an order of Roman Catholic priests commonly known as the Jesuits. Bollard's Title VII claim alleged that his superiors "sent him pornographic material, made unwelcome sexual advances, and engaged him in inappropriate and unwelcome sexual discussions." 196 F.3d at 944. Bollard claimed that the harassment was so severe and the Jesuits' response so inadequate that he left the Jesuit order before taking vows to become a priest. Id. The Jesuits argued that the ministerial exception to Title VII barred Bollard's claim, but we held otherwise, concluding that Bollard's claim survived both Free Exercise and Establishment clause inquiries.

The Free Exercise clause prohibits courts from "decid[ing] among competing interpretations of church doctrine, or other matters of an essentially ecclesiastical nature." Bollard, 196 F.3d at 946. Accordingly, Bollard explained:

A church must retain unfettered freedom in its choice of ministers because ministers represent the church to the people. . . . Indeed, the ministerial relationship lies so close to the heart of the church that it would offend the Free Exercise Clause simply to require the church to articulate a religious justification for its personnel decisions.

Id. Despite this constraint, Bollard's claim survived Free Exercise clause scrutiny because (1) the Jesuits "d[id] not offer a religious justification for the harassment Bollard allege[d]," and (2) neither Bollard nor the Jesuits alleged that the Jesuits had ever sought to prevent Bollard from taking the vows for priesthood. Id. at 947. Thus, Bollard's claim implicated neither "the Jesuit order's choice of representative" nor other conduct implicating church doctrine. Id. Absent a religious justification for the harassment Bollard alleged or a protected, ministerial choice that Bollard's suit would second-guess, the Jesuits' First Amendment argument boiled down to a "generalized and diffuse concern for church autonomy" that did not trigger the ministerial exception. Id. at 948.

Turning to the Establishment clause, Bollard applied the test promulgated by Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971): "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion." Id. at 612-13, 91 S.Ct. 2105; see Bollard, 196 F.3d at 948. In Title VII claims against religious employers, the relevant criterion is entanglement, which has both substantive and procedural dimensions.

Entanglement's substantive dimension is implicated "if the church's freedom to choose its ministers is at stake. A religious organization's decision to employ or to terminate employment of a minister is at the heart of its religious mission." Bollard, 196 F.3d at 949. Having already concluded, in its Free Exercise clause analysis, that Bollard's suit did not second-guess the Jesuits' ministerial choices, Bollard similarly concluded that the suit did not impermissibly promote substantive entanglement between church and state. Id.

Entanglement's procedural dimension is implicated by "a protracted legal process pitting church and state as adversaries." Bollard, 196 F.3d at 949 (quoting Rayburn v. Gen. Conference of Seventh-Day Adventists, 772 F.2d 1164, 1171 (4th Cir. 1985) (citing NLRB v. Catholic Bishop of Chi., 440 U.S. 490, 502, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979) ("It is not only the conclusions that may be reached by the Board which may impinge on rights guaranteed by the Religion Clauses, but also the very process of inquiry leading to findings and conclusions."))). Moreover,

the dangers of procedural entanglement are most acute where there is also a substantive entanglement issue. Where such a concern is absent, procedural entanglement considerations are reduced to the constitutional propriety of subjecting a church to the expense and indignity of the civil legal process.

Bollard, 196 F.3d at 949 (citations omitted). Because Bollard's suit presented no great danger of substantive entanglement and involved only secular inquiries, the procedural entanglement it entailed was "no greater than that attendant on any other civil suit a private litigant might pursue against a church." Id. at 950; see also Roman Catholic Diocese, 213 F.3d at 801 ("Where no spiritual function is involved, the First Amendment does not stay the application of a generally applicable law such as Title VII to the religious employer unless Congress so provides."). Thus, "the entanglement between church and state that would result if Bollard pursued his sexual harassment claim [was] not sufficiently significant to violate the Establishment Clause." Bollard, 196 F.3d at 949.

Ultimately, we reasoned that the issue to be adjudicated was "whether Bollard was subjected to sex-based harassment by his superiors that was sufficiently severe or pervasive to be actionable under Title VII," and that the Jesuits could assert as an affirmative defense that they "exercised reasonable care to prevent and correct the harassment, and that Bollard failed to take advantage of these opportunities to avoid or limit harm." Bollard, 196 F.3d at 949-50 (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 751-52, 764-65, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)). Thus, we concluded:

This is a restricted inquiry. Nothing in the character of this defense will require a jury to evaluate religious doctrine or the "reasonableness" of the religious practices followed within the Jesuit order. Instead, the jury must make secular judgments about the nature and severity of the harassment and what measures, if any, were taken by the Jesuits to prevent or correct it. The limited nature of the inquiry, combined with the ability of the district court to control discovery, can prevent a wide-ranging intrusion into sensitive religious matters.

Bollard, 196 F.3d at 950 (emphasis added).

As in Bollard, Elvig must as a predicate to a sexual harassment claim prove that Pastor Ackles' alleged conduct was severe and pervasive. See Ellerth, 524 U.S. at 754, 118 S.Ct. 2257. And to the extent relevant, the Church may have an affirmative defense that it exercised reasonable care to prevent or correct harassment and that Elvig failed to take advantage of preventative or corrective opportunities. See id. at 765, 118 S.Ct. 2257; Bollard, 196 F.3d at 950. Moreover, although Elvig has pled claims for both retrospective and prospective damages and unspecified injunctive relief, in light of Bollard's heavy reliance on Bollard's claiming only limited, retrospective damages, id., Elvig's remedies must be similarly limited. So limited, Elvig's claim for retrospective damages would appear to fall within the Bollard parameters of secular inquiry, and outside those of the ministerial exception. The question then becomes whether her circumstances or the nature of her claims takes her beyond Bollard and reverses the equation.

There are two obvious differences between this case and Bollard. First, Bollard was not an ordained minister, only a novitiate. We do not find this distinction to be material, however, and do not read Bollard itself as drawing such a distinction. Bollard regarded the plaintiff as a minister, see, e.g., Bollard, 196 F.3d at 947 (observing that "a minister is the target . . . of the harassing activity" and referring to the "church-minister employment relationship"), and nowhere relied on Bollard's novitiate status in the opinion. Other federal circuit courts have adopted similar approaches, looking to the function of the position rather than to ordination in deciding whether the ministerial exception applies to a particular employee's Title VII claim. Thus, we accept Bollard as treating a novitiate as a "minister" for the purposes of the ministerial exception.

Second, and quite significantly, unlike Bollard — whom the Jesuits professed to want to remain a member of the order — Elvig was terminated by the Church and foreclosed from seeking employment in other Presbytery parishes. Thus Elvig's claims do in certain respects very much involve the Church's decision-making about who shall be a minister of the Church — a decision clearly within the scope of the ministerial exception and to which, as Bollard put it, we must "simply defer without further inquiry." Id. at 947. Accordingly, to the extent Elvig's claims necessarily involve an inquiry into the Church's decision to terminate her ministry, those claims cannot proceed in civil court and were properly dismissed. As we shall explain, however, that does not mean the entirety of her Title VII claims must likewise be foreclosed.

Elvig claims that Pastor Ackles and the Church created a hostile work environment, which culminated in several tangible employment actions that occurred after she complained to the Church and later to the EEOC about that environment. These actions included the removal of certain duties by Pastor Ackles, then her suspension and termination by the Church and finally the Committee on Ministry's refusal to permit the circulation of her personal information form.

To prevail on a sexual harassment claim, a plaintiff must establish a "pattern of ongoing and persistent harassment severe enough to alter the conditions of employment." Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1108 (9th Cir. 1998). Elvig may, consistent with the First Amendment, attempt to show that she was sexually harassed and that this harassment created a hostile work environment. Bollard, 196 F.3d at 949-50. This showing would, after all, involve a purely secular inquiry. Assuming Elvig can prove a hostile work environment, the Church may nonetheless invoke First Amendment protection from Title VII liability if it claims that her subjection to or the Church's toleration of sexual harassment was doctrinal. We do not scrutinize doctrinal justifications because "[i]t is . . . not our role to determine whether the Church had a secular or religious reason for the alleged mistreatment of [Elvig]." Alicea-Hernandez v. Catholic Bishop of Chi., 320 F.3d 698, 703 (7th Cir. 2003). As in Bollard, however, the Defendants here "do not offer a religious justification for the harassment [Elvig] alleges," Bollard, 196 F.3d at 947, and, indeed, deny it occurred at all.

In Ellerth and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), the Supreme Court provided a framework for assessing an employer's liability where the plaintiff can show that she was subjected to a hostile environment. Within this framework, there are two, alternative theories under which a plaintiff may establish an employer's vicarious liability for sexual harassment. First, an employer is vicariously liable for a hostile environment that "culminates in a tangible employment action." Ellerth, 524 U.S. at 765, 118 S.Ct. 2257; Faragher, 524 U.S. at 808, 118 S.Ct. 2275. Second,

when no "tangible employment action" has been taken, an employer may raise "an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence." The affirmative defense has two prongs: (1) "that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior"; and (2) "that the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Whether the employer has a stated anti-harassment policy is relevant to the first element of the defense. And an employee's failure to use a complaint procedure provided by the employer "will normally suffice to satisfy the employer's burden under the second element of the defense."

Nichols v. Azteca Rest. Enters., 256 F.3d 864, 877 (9th Cir. 2001) (quoting Ellerth, 524 U.S. at 765, 118 S.Ct. 2257). Moreover, even if a tangible employment action occurred, an employer may still assert the affirmative defense if the tangible employment action "was unrelated to any harassment or complaint thereof." Nichols, 256 F.3d at 877; see also B. Lindemann P. Grossman, Employment Discrimination Law 609 nn. 160-63 (C. Geoffrey Weirich ed., 3d ed. 2002 supp.).

Thus, when a plaintiff proves that she was subjected to a hostile environment, the next and potentially final step in the typical Title VII case is to ascertain whether she suffered a tangible employment action related to that hostile environment. What makes this case atypical, however, is that each tangible employment action Elvig alleges implicates the Church's constitutionally protected prerogative "to choose [its] representatives free from government interference and according to the dictates of faith and conscience." Bollard, 196 F.3d at 945.

Because there is a "protected-choice rationale" for the Defendants' tangible employment actions in this case, Bollard, 196 F.3d at 947, we conclude as a matter of law that those actions must be treated as if they were "unrelated to any harassment or complaint thereof," Nichols, 256 F.3d at 877. We also conclude, however, that although Elvig cannot rely on showing that she suffered sexual harassment "culminat[ing] in a tangible employment action," she may nonetheless hold the Church vicariously liable for the sexual harassment itself unless the Church can satisfy the Ellerth/Faragher affirmative defense. Ellerth, 524 U.S. at 765, 118 S.Ct. 2257; Faragher, 524 U.S. at 808, 118 S.Ct. 2275.

A tangible employment action is "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Ellerth, 524 U.S. at 761, 118 S.Ct. 2257; see also Nichols, 256 F.3d at 877. Here, Elvig alleges four tangible employment actions — (1) the removal of certain duties, (2) her suspension, (3) her termination and (4) the refusal to permit the circulation of her personal information form — each of which involves the exercise of power over Elvig's ability to perform "spiritual functions." Roman Catholic Diocese, 213 F.3d at 801. Even the decision regarding Elvig's personal information form, in which the Committee on Ministry arguably prevented other parishes from exercising their judgments about Elvig's pastoral worth, is beyond our purview because it clearly involves the Presbytery's process of pastoral selection. Cf. Bollard, 196 F.3d at 947 ("Just as the initial function of selecting a minister is a matter of church administration and government, so are the functions which accompany such a selection. It is unavoidably true that these include the determination of a minister's salary, his place of assignment, and the duty he is to perform in the furtherance of the religious mission of the church." (quoting McClure v. Salvation Army, 460 F.2d 553, 559 (5th Cir. 1972))); Gellington v. Christian Methodist Episcopal Church, Inc., 203 F.3d 1299, 1304 (11th Cir. 2000) ("A church's view on whether an individual is suited for a particular clergy position cannot be replaced by the courts' [view] without entangling the government `in questions of religious doctrine, polity, and practice.'" (quoting Jones v. Wolf, 443 U.S. 595, 603, 99 S.Ct. 3020, 61 L.Ed.2d 775 (1979))). Because the four tangible employment actions Elvig alleges concern the Defendants' "choice of ministers," the Defendants retain "unfettered freedom" to take those actions without incurring Title VII liability. Bollard, 196 F.3d at 946.

That the tangible employment action inquiry looks not only to whether but also to why the employment action occurred raises additional concerns, because the particular employment actions Elvig alleges are also ministerial decisions protected by the First Amendment. See Nichols, 256 F.3d at 877. Elvig might argue, for example, that the Church's ministerial choices affecting her were part of the harassment she suffered, and therefore that any doctrinal or secular explanation dissociating those actions from harassment would be insincere or pretextual. But a judicial inquiry into this argument would, as a practical matter, necessarily create First Amendment problems:

[W]e cannot conceive how the federal judiciary could determine whether an employment decision concerning a minister was based on legitimate or illegitimate grounds without inserting ourselves into a realm where the Constitution forbids us to tread, the internal management of a church.

Bollard, 196 F.3d at 946 (quoting Combs v. Cent. Tex. Annual Conference of United Methodist Church, 173 F.3d 343, 350 (5th Cir. 1999)). Moreover, proving that a church's asserted justification for a protected employment decision was pretextual would come to nothing. A church's selection of its ministers is unfettered, and its true reasons — whatever they may be — are therefore unassailable. Thus, "it would offend the Free Exercise Clause simply to require the [C]hurch to articulate a religious justification for its personnel decisions." Bollard, 196 F.3d at 946; see also Rayburn, 772 F.2d at 1169 ("[T]he free exercise clause of the First Amendment protects the act of a decision rather than a motivation behind it."). Because the Church cannot be required to articulate a justification for its ministerial decisions, Elvig cannot show that those decisions were tangible employment actions related to the hostile environment to which she was subjected.

That said, insulating the Church's employment decisions does not foreclose Elvig from holding the Church vicariously liable for the alleged sexual harassment itself, which is not a protected employment decision. In Bollard, we accepted that Bollard had abandoned the novitiate program because of the hostile work environment, not because the Jesuits terminated him or took any other tangible employment action against him. Thus we treated his claim as one proceeding under the Ellerth /Faragher affirmative defense paradigm, rather than as one relying on a tangible employment action. Bollard, 196 F.3d at 949-50. Here, Elvig is functionally in a comparable position — not because she suffered no employment actions as a matter of fact, but because she cannot reach those actions as a matter of law. Thus, as in Bollard, Elvig has alleged facts upon which she may rely without triggering the ministerial exception and which suffice to allege a prima facie case of a Title VII violation.

In Title VII actions against secular employers, plaintiffs who suffer tangible employment actions but cannot connect those actions to harassment may nonetheless recover for the harassment itself if their employers cannot satisfy the Ellerth/Faragher affirmative defense. In Nichols, for example, we rejected a co-plaintiff's argument that his employer "may not assert the affirmative defense because he suffered a tangible employment action." 256 F.3d at 877. Although the co-plaintiff, Sanchez, was indeed fired, we ignored that firing and held that the Ellerth/Faragher affirmative defense was available to the employer, because:

Sanchez's termination was unrelated to any harassment or complaint thereof. Moreover, before being fired, Sanchez was not demoted or reassigned, and did not receive a cut in pay or benefits. Because Sanchez was not subjected to any tangible adverse employment action, we consider the merits of Azteca's affirmative defense.

Id.; see also Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1312, 1317 (11th Cir. 2001) (concluding that "Frederick failed to present sufficient evidence to establish any causal link between the adverse `tangible employment action' she suffered and the alleged harassment," and "remand[ing] on Frederick's no adverse tangible employment action claim" for an inquiry into the employer's affirmative defense); Lissau v. S. Food Serv., Inc., 159 F.3d 177, 182 (4th Cir. 1998) ("Tangible employment actions, if not taken for discriminatory reasons, do not vitiate the affirmative defense. If Lissau's termination did not result from a refusal to submit to Castillero's sexual harassment, then Southern may advance this defense."); Newton v. Cadwell Labs., 156 F.3d 880, 883-84 (8th Cir. 1998) (affirming the district court's finding that the plaintiff's discharge was unrelated to her supervisor's advances and holding that employer was entitled to assert affirmative defense on remand).

Given that the Defendants may not constitutionally be required to explain or justify the alleged tangible employment actions, Elvig, like Mr. Sanchez in Nichols, cannot establish a connection between those actions and the hostile environment to which she was subjected. As in Nichols, we must ignore actions by the employer that the plaintiff cannot link to the sexual harassment — here, by operation of law. But that does not defeat Elvig's underlying sexual harassment claim; rather, it simply means that, as Nichols illustrates, the Church may invoke the Ellerth/Faragher affirmative defense to avoid vicarious liability for Pastor Ackles' alleged harassment.

Permitting the Church to raise the affirmative defense also takes all protected employment decisions out of the equation, thus assuring that the Church's liability under Title VII will not be based on the decisions to reduce Elvig's duties, to suspend her, to terminate her employment or to refuse to allow her to circulate her personal information form. Instead, "the only relevant decision[s]" implicated here are Pastor Ackles' supposed decision to harass Elvig and the Church's "decision not to intervene to stop or curtail the sexual harassment [Elvig] reported." Bollard, 196 F.3d at 947. These alleged decisions to engage in and permit harassment are insufficient to trigger the ministerial exception. Id.

Again, the Church could invoke First Amendment protection from Title VII liability if it claimed doctrinal reasons for tolerating or failing to stop the sexual harassment Elvig alleges. The Church has pled no such religious justification; rather, it denies the harassment occurred at all and contends that, guided by its internal grievance procedures, it reasonably responded to Elvig's complaints. Nonetheless, the dissent, seeming to view this case as if it arose on summary judgment and construing the Church's Book of Order, finds that the Church's procedure for redressing sexual harassment is "designed to accomplish unmistakably religious goals" and is "animated by religious criteria." Even if this is so, the Church has not argued that its religious doctrine tolerates sexual harassment or compelled the Church to respond to Elvig's complaints in ways that would be seen as unreasonable in the context of proving its Ellerth/Faragher affirmative defense.

Thus, what is left open, as we expressly held in Bollard, is a restricted, secular inquiry: whether Elvig can carry her burden of proving she was sexually harassed and, if she can, whether the Church can prove its affirmative defense. "Nothing in the character of [the inquiry] will require . . . evaluat[ion of] religious doctrine or the `reasonableness' of the religious practices followed [by the church]." 196 F.3d at 950. The reasonableness component of the Ellerth/Faragher affirmative defense evaluates an employer's actions in responding to sexual harassment rather than the motivations for that response. In particular, "the reasonableness of an employer's remedy . . . depend[s] on its ability to stop harassment." Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991); see also Nichols, 256 F.3d at 875 ("In this circuit, as in others, remedies [for sexual harassment] should be reasonably calculated to end the harassment.") (internal quotation marks omitted) (alteration in Nichols). In short, the issue is what the Church did, and its response to Elvig's complaints and the texts guiding its actions can be subjected to secular legal analysis.

If the Church and the dissent are correct that the Church exercised reasonable care (and that Elvig herself acted unreasonably), then the Church might well prevail on summary judgment. But the merits of the Church's affirmative defense, which we must presume to be nil at this stage of the proceedings, provide no First Amendment basis for shielding the Church from its obligation to protect its employees from harassment when extending such protection would not contravene the Church's doctrinal prerogatives or trench upon its protected ministerial decisions. Indeed, if we were to ignore Bollard and adopt a rule that the First Amendment bars Elvig from even stating a Title VII claim — out of speculation that the affirmative defense might somehow involve some doctrinal component — we would be affording blanket First Amendment protection to churches that unreasonably fail to address clear instances of sexual harassment, such as unwanted sexual advances, see Bollard, 196 F.3d at 944; McKelvey, 800 A.2d at 845-46; sexual intimidation including "comment[s] inviting oral sex" and discussions of bestiality, see Pa. State Police v. Suders, ___ U.S. ___, ___, 124 S.Ct. 2342, 2347, 159 L.Ed.2d 204 (2004); or barrages of unwelcome sexual commentary and pornography, see Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1176 (9th Cir. 2003), even when no protected ministerial choice or church doctrine is in fact involved. As Bollard makes clear, accommodating Title VII's mandate and the First Amendment's strictures does not mean peremptorily dismissing all sexual harassment claims brought by ministers against churches.

In sum, because we must "simply defer without further inquiry" into the tangible employment actions Elvig suffered, Bollard, 196 F.3d at 947, those actions may not give rise to Title VII liability for the Defendants. The extent of our deference is limited, however. It requires only that the Church here, as in Bollard, be permitted to raise the Ellerth/Faragher affirmative defense. Thus, Elvig's sexual harassment claim is limited to three questions: (1) Was Elvig subjected to a hostile environment? (2) If so, did the Church exercise reasonable care to correct that environment? (3) Did Elvig unreasonably fail to avail herself of those measures? See Nichols, 256 F.3d at 877. These are the same restricted, secular questions posed by Bollard's suit, the answers to which do not require interpretations of religious doctrine or scrutiny of the Defendants' ministerial choices. Therefore, the ministerial exception does not entirely foreclose Elvig's sexual harassment claim.

Elvig alleges that the Defendants also violated Title VII by retaliating against her for lodging sexual harassment complaints with the Church and the EEOC. To make out a prima facie case of retaliation under Title VII, see 42 U.S.C. § 2000e-3, Elvig must show that "`(1) she engaged in a protected activity, (2) she suffered an adverse employment action, and (3) there was a causal link between her activity and the employment decision.'" Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1065-66 (9th Cir. 2003) (quoting Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1197 (9th Cir. 2003)). "[A]n action is cognizable as an adverse employment action if it is reasonably likely to deter employees from engaging in protected activity." Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000). Under this definition, the universe of potential adverse employment actions for retaliation claims is larger than the universe of potential tangible employment actions that can subject an employer to vicarious liability for harassment. See id. at 1242-44 n. 5. For example, retaliatory harassment can be an adverse employment action giving rise to a retaliation claim. See id. at 1244-45.

Here, Elvig has alleged five retaliatory adverse employment actions: (1) the removal of certain duties, (2) her suspension, (3) her termination, (4) the refusal to permit the circulation of her personal information form and (5) retaliatory harassment in the form of verbal abuse and intimidation. As discussed previously, the first four of these actions are protected ministerial decisions. As in the sexual harassment context, Elvig is foreclosed as a matter of law from relying on these protected decisions as acts of retaliation.

The retaliatory harassment Elvig alleges — verbal abuse and intimidation — is not a protected employment decision, however, and thus may be a valid basis for a retaliation claim. See id. at 1244-45. Elvig may, consistent with the First Amendment, show the three elements of a retaliation claim: that she engaged in a protected activity, that she suffered an adverse employment action and that there is a causal connection between the protected activity (Elvig's sexual harassment complaints) and the adverse employment action (the retaliatory harassment). Again, however, the Defendants may invoke First Amendment protection from Title VII liability if they claim that the alleged retaliatory harassment was doctrinal, although they have not done so. See Bollard, 196 F.3d at 944, 947. In the absence of such a religious justification, Elvig's allegation of retaliatory harassment states a retaliation claim that survives the ministerial exception.

Just as the ministerial exception precludes Elvig from alleging Title VII claims that implicate the Defendants' protected ministerial decisions, it similarly precludes her from seeking remedies that implicate those decisions. For example, a court may not order the Defendants to permit the circulation of Elvig's personal information form; to do so would effectively overrule a protected employment decision.

Further, unlike Bollard, who quit his employment in what he alleged was a constructive discharge, Elvig was suspended and later fired by the Defendants. That distinction, although not fatal to Elvig's hostile environment claim, leaves her with fewer remedial options than we permitted Bollard to pursue. See Bollard, 196 F.3d at 947 (permitting Bollard to recover lost wages because "constructive discharge in the context of Bollard's Title VII sexual harassment claim functions only to signal his estimation of the severity of the harassment and to lay the foundation for including lost wages in a calculation of damages."). As we have explained, the termination of Elvig's ministry and her inability to find other pastoral employment are consequences of protected employment decisions. Consequently, a damage award based on lost or reduced pay Elvig may have suffered from those employment decisions would necessarily trench on the Church's protected ministerial decisions. The same would be true of emotional distress or reputational damages attributable to those decisions. On the other hand, Elvig may recover for emotional distress and reputational harm caused by the sexual harassment itself — or by retaliatory harassment — because such harassment implicates only Pastor Ackles' alleged decision to harass Elvig and the Church's decision not to remedy that harassment, decisions the ministerial exception does not protect. Accordingly, because any damages awarded to Elvig based on emotional distress or reputational harm attributable to harassment would be "limited and retrospective," she may on remand attempt to prove that she suffered such damages. See Bollard, 196 F.3d at 950.

Elvig may therefore proceed within the parameters we have discussed. These parameters unequivocally make the Defendants' protected employment decisions off limits, both as touchstones of liability and as proper subjects of discovery. As in Bollard, therefore, the ensuing litigation will not cause excessive entanglement. Excessive entanglement involves " pervasive monitoring," Agostini v. Felton, 521 U.S. 203, 234, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997), or continuing governmental inspection of a religious organization's "day-to-day operations," Jimmy Swaggart Ministries v. Bd. of Equalization of Cal., 493 U.S. 378, 395, 110 S.Ct. 688, 107 L.Ed.2d 796 (1990). These dangers are severely curtailed where, as here, the inquiry is secular and limited to the discovery process.

In Holly D. v. California Institute of Technology, to take an example involving a secular employer, we held that the employer had established a reasonable mechanism for addressing sexual harassment after considering the employer's written policy and training programs, both of which the employer made available to its employees. 339 F.3d at 1177. We also rejected the plaintiff's contention that the policy had been unreasonably implemented, citing the employer's willingness to interview all relevant witnesses and to respond promptly when it learned of the offending employee's conduct. Id. at 1177-78. A similar inquiry in this case would involve only "secular judgments" focusing on the reasonableness of the employer's antiharassment policy and practices. See Bollard, 196 F.3d at 950.

Moreover, as in Bollard, "the ability of the district court to control discovery" will guard against "a wide-ranging intrusion into sensitive religious matters." Id. Significantly, the district court's control over discovery has been enhanced since our 1999 Bollard decision. In 2000, the Federal Rules of Civil Procedure were amended "to involve the court more actively in regulating the breadth of sweeping or contentious discovery." Fed.R.Civ.P. 26 advisory committee's notes. In particular, the new rules limit the breadth of discovery that can occur absent court approval. Under Rule 26(b)(1), for example, discovery must now relate more directly to a "claim or defense" than it did previously, and "if there is an objection that discovery goes beyond material relevant to the parties' claims or defenses, the court would become involved." Id.; see also Fed.R.Civ.P. 30(d)(2) (2004) (limiting depositions to one day of seven hours, absent stipulation or court order).

Thus, the litigation will not, as the dissent argues, delve open-ended and unfettered into the "internal workings" of the Church, whatever those might be. The inquiry entailed by Elvig's suit will be at least as circumscribed, if not more so, as the inquiry we permitted in Bollard, and will involve entanglement between church and state "no greater than that attendant on any other civil suit a private litigant might pursue against a church." Bollard, 196 F.3d at 950. The litigation will focus on the specific, discrete and secular issues we have identified as salient to Elvig's viable Title VII claims. As we have explained previously, these issues concern the Defendants' actions, not their beliefs. Thus, Elvig's claims are not susceptible to "discovery . . . designed to probe the mind of the church in the selection of its ministers." Rayburn, 772 F.2d at 1171.

When the district court dismissed Elvig's claims under Title VII, it also dismissed her various state law claims under the federal supplemental jurisdiction statute, 28 U.S.C. § 1367(c). Because we hold that Elvig has stated a valid sexual harassment claim under Title VII, the dismissal of her state claims is no longer warranted.

If the district court reaches the merits of Elvig's state law claims on remand, it will have to determine whether any or all of the claims survive the ministerial exception. See Bollard, 196 F.3d at 950 ("Just as there is a ministerial exception to Title VII, there must also be a ministerial exception to any state law cause 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."). "Whether the exception applies in a particular instance will depend on the nature of the state law claim and its associated remedy. . . ." Id.

Our deference to the Defendants' ministerial decisions means that Elvig cannot succeed on any claim predicated upon such decisions. Notwithstanding that deference, however, Elvig has stated viable claims of sexual harassment (subject to the Ellerth/Faragher affirmative defense) and retaliation (based on her allegation that she suffered retaliatory harassment). We stress, however, that in both the sexual harassment and retaliation contexts, Elvig may not rely on protected ministerial decisions — the removal of certain duties, her suspension, her termination and the refusal to permit the circulation of her personal information form — as bases for the Defendants' liability under Title VII. If successful on the merits, Elvig may recover damages for emotional distress and reputational harm that she can prove were caused by the relevant harassment.

Our dissenting colleague, unreconciled to the governing authority of Bollard, suggests we go too far in applying Bollard here. We respect his concerns but believe his arguments go well beyond anything either Bollard or we in this case have actually held or permitted. First, we emphasize this case — as did Bollard — comes to us on only the pleadings, where all we have before us are Elvig's complaint and the Church's answer, and only the district court's ruling that Elvig failed to state a claim as a matter of law. Thus the dissent's extensive factual recitation; its speculative prejudgment of what evidence may be produced or found relevant on a summary judgment motion or at any trial that may be warranted; and its predictions of extensive, "microscopic" discovery are — with respect — rhetorical. In short, the dissent would hold that a minister may be subjected to sexual harassment that Congress in enacting Title VII made clear should not be tolerated in the workplace; that once a woman (or man) becomes a minister, the First Amendment requires that she (or he) surrender all rights to protection against such harassment even if the church's doctrine neither condones nor tolerates the harassment; and that the federal courts are off limits because they are incapable of providing nuanced relief that respects both the individual rights Congress enacted and a church's constitutional right to be free of doctrinal interference. We respectfully disagree. The First Amendment should not require that churches become sanctuaries for sexual harassment by those who act outside of church doctrine. Neither Bollard, nor the narrow scope of Title VII relief we have taken pains carefully to articulate here, does more than assure that our religious institutions honor their secular obligations not to sexually harass those who have been called to become ministers of their faiths. REVERSED and REMANDED for further proceedings consistent with this opinion.