No. 12-011111

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

NANCY WILLIAMS,

Plaintiffs - Appellants,

v.

BETH SHALOM BOARD OF TRUSTEES AND

RABBI BRYANT,

Defendants - Appellees.

On Appeal from the Federal District Court in Houston __________________________________

APPELLANT’S BRIEF

A. Plaintiff- Appellant

Nancy Williams

B. Council for Appellant

Meghan Kelly

The Kelly Law Firm, P.C.

C. Defendant – Appellee:

Beth Shalom Board of Trustees

D. Defendant – Appellee:

Rabbi Bryant

ORAL ARGUMENT IS REQUESTED

1

CERTIFICATE OF INTERESTED PERSONS

No. 14-04494

NANCY WILLIAMS,

Plaintiffs - Appellants,

v.

BETH SHALOM BOARD OF TRUSTEESAND

RABBI MICHAEL BRYANT,

Defendant - Appellee.

The undersigned counsel of record certifies that the following listed persons and entities as described in

the fourth sentence of Rule 28.2.1 have an interest in the outcome of this case. The below representations are

asserted so that the Judges of this Court may evaluate possible disqualification or recusal.

A. Plaintiff - Appellant:

RABBI MICHAEL BRYANTB. Defendant – Appellee:

BETH SHALOM BOARD OF TRUSTEES

C. Council for AppellantMeghan KellyThe Kelly Law Firm, P.C.

D. Defendant – AppelleeRabbi Bryant and Beth Shalom Board of Trustees

E. Council for Appellee

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STATEMENT REGARDING ORAL ARGUMENT

Appellant/Appellee respectfully requests oral argument. This case presents a matter of first

impression before this Court. Therefore, Appellant/Appellee believes that oral argument would be

helpful to the Court in addressing questions that may arise after reading the briefs.

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TABLE OF CONTENTS

Certificate of Interested Person ...........................................................................................i

Statement Regarding Oral Argument .................................................................................i

Table of Contents ...............................................................................................................iii

Table of Citations ...............................................................................................................iv

Statement of Jurisdiction ....................................................................................................1

Statement of the Issues ....................................................................................................... 1

Statement of the Case .........................................................................................................2

Standard of Review ..................................................................................................... 2,3,4

Statement of Facts ........................................................................................................... 5,6

Summary of the Argument ................................................................................................. 7

Argument ........................................................................................ 8, 9,10, 11,12,13,14,15

I. Ms. Williams can see her day in court and the ministerial exception does not bar her gender discrimination claim. 8

................................................................................ A. Ms. Williams is an Employee, but is better considered an Administrative

Employee than a Ministerial Employee .................................................. 8

B. The Court’s Rulings on Ministerial Exceptions Vary on Circumstances …..……………………………………….8, 9

C. The Ministerial Exception Cannot Be Applied Too Broadly……………………………………………………….....…. 10,11

D. Authority Figures Showing Extreme and Outrageous Behavior At Work………………………………………………………………..12, 13

E. Rabbi Bryant’s Degrading Behavior Should Not Be Condoned.......…14,15

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II. Trial Court erred in granting the summary judgment for the IIED claim .…...15

Conclusion ........................................................................................................................15

iv

II. TABLE OF CITATIONS

Dias v. Arcdiocese of Cincinnati .......… Dias v. Archdiocese of Cincinnati, 2012 U.S. Dist. 43240, 114 Fair Empl. Prac. Cas. (BNA) 1316, 2012 (S.D. Ohio Mar. 29, 2012)

GTE Southwest v. Bruce …………….Gte Southwest v. Bruce, 998 S.W.2d 605, 608, 1999 Tex. 73, 1, 42 Tex. Sup. J. 907, 15 I.E.R. Cas. (BNA) 509, 139. (CCH) P58, 698 (Tex. 1999)

Rosati v. Toledo ………………….….Rosati v. Toledo, 233 F. Supp. 2d 917, 2002 U.S. Dist. 23250 (N.D. Ohio 2002)

Klouda v. Southwestern Baptist Thel. Seminary ………. Klouda v. Southwestern Baptist Theol. Seminary, 543 F. Supp. 2d 594, 2008 U.S. Dist. 22157 (N.D. Tex. 2008)

St. Mary’s University of Law Review………………… COMMENT: FREE EXERCISE OF THE COURTROOM: WHY PERPETRATORS OF RELIGIOUSLY MOTIVATED VIOLENCE CAN NO LONGER HIDE BEHIND THE FIRST AMENDMENT, 12 SCHOLAR 95

Wilson v. Monarch Paper Co……. Wilson v. Monarch Paper Co., 939 F.2d 1138, 1991 U.S. App. 18997, 56 Fair Empl. Prac. Cas. (BNA) 1105, 57 Empl. Prac. Dec. (CCH) P41,008, 6 I.E.R. Cas. (BNA) 1344 (5th Cir. Tex. 1991)

Hosana- Tabor Evangelical Lutheran Church & Sch. V. EEOC, 132 S. Ct. 694 ……. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 181 L. Ed. 2d 650, 2012 U.S. 578, 80 U.S.L.W. 4056, 114 Fair Empl. Prac. Cas. (BNA) 129, 95 Empl. Prac. Dec. (CCH) P44,385, 25 Am. Disabilities Cas. (BNA) 1057, 23 Fla. L. Weekly Fed. S 46, 2012 WL 75047 (U.S. 2012)

Horton v. Montgomery Ward ………………………….. Horton v. Montgomery Ward, 199 Kan. 245, 428 P.2d 774, 1967 Kan. 384 (Kan. 1967)

Cannata v. Catholic Diocese of Austin ……………...…. Cannata v. Catholic Diocese of Austin, 700 F.3d 169, 2012 U.S. App. 22114, 116 Fair Empl. Prac. Cas. (BNA) 513, 96 Empl. Prac. Dec. (CCH) P44,662, 15 Accom. Disabilities Dec. (CCH) P15-114, 26 Am. Disabilities Cas. (BNA) 1767 (5th Cir. Tex. 2012)

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STATEMENT OF JURISDICTION

On November 11, 2014, Plaintiff filed a claim for intentional infliction of emotional

distress and a violation of Title VII of the Civil Rights Act for gender discrimination in a state

district court in Harris County. Defendants removed case to federal court and added a motion to

dismiss on the basis of the ministerial exception. The court treated this as a motion for summary

judgment. The federal district court in Houston had jurisdiction to hear the claims based on the

Title VII federal question. The federal district court granted the Appellee’ motion to dismiss on

February 20, 2015. Appellant filed a notice of appeal on February 28, 2015. Therefore, this Court

has jurisdiction pursuant to the Title VII federal question.

STATEMENT OF THE ISSUES

I. WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR DEFENDANTS, THE BOARD AND RABBI BRYANT, ON THE GROUNDS THE MINISTERIAL EXCEPTION TO TITLE VII PRECLUDES PLAINTIFF’S GENDER DISCRIMINATION CLAIM.

II. WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT ON PLAINTIFF’S INTENTIONAL INFLICITON OF EMOTIONAL DISTRESS CLAIM BASED ON THE RABBI’S TREATMENT OF MS. WILLIAMS.

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STATEMENT OF THE CASE

The Plaintiff, Ms. Williams, sued Defendants, the Board and Rabbi Bryant, for

intentional infliction of emotional distress and a violation of Title VII of the Civil Rights Act for

gender discrimination in a state district court in Harris County on November 11, 2014 (CR 12-

15). Both the Board and Rabbi Bryant denied the allegations and removed the case to federal

court. They then filed a motion to dismiss both the gender discrimination and intentional

infliction of emotional distress claims. (CR 18-20). The federal district court treated the motion

to dismiss as a motion for summary judgment because Defendants had proffered evidence in

support of the motion, and granted the motion on February 20, 2015. (CR 48). The Court ruled

that the discrimination claim was exempt from suit under the ministerial exception of Title VII.

(CR 54). In doing so, the Court held Title VII did not apply to the relationship between Ms.

Williams and the synagogue. The Court ruled that Ms. Williams failed to raise any issues of

material fact and that Defendants were entitled to judgment as a matter of law on the intentional

infliction of emotional distress claim. Ms. Williams filed her notice of appeal on these issues on

February 28, 2015. (CR 54).

STANDARD OF REVIEW

I. “The standard for reviewing a motion for summary judgment is as follows: (1) The

movant for summary judgment has the burden of showing that there is no genuine issue of

material fact and that it is entitled to judgment as a matter of law. (2) In deciding whether there is

a disputed material fact issue precluding summary judgment, evidence favorable to the non-

movant will be taken as true. (3) Every reasonable inference must be indulged in favor of the

non-movant and any doubts resolved in its favor.” “In order to obtain a summary judgment at

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least one element of each of the plaintiff’s claims must be negated.” Horton v. Montgomery

Ward, 199 Kan. 245, 428 P.2d 774, 1967 Kan. 384 (Kan. 1967)

“In deciding the motion for summary judgment, the evidence of the non-moving party

will be believed as true, all doubts will be resolved against the moving party, all evidence will be

construed in the light most favorable to the non-moving party, and all reasonable inferences will

be drawn in the non-moving party’s favor. Summary judgment shall be rendered only if the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show there is no genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law.” Rosati v. Toledo, 233 F. Supp. 2d 917 at 917, 2002.

II. A minister’s employment relationship with his church implicates internal church

discipline, faith, and organization, all of which are governed by ecclesiastical rule, custom and

law. Therefore, civil court jurisdiction over a ministerial employment dispute is impermissible

because such state intervention would excessively inhibit religious liberty. Courts have declined

to exercise jurisdiction in employment disputes between churches and their clergy. This doctrine

has commonly been referred to as the ‘ministerial exception.’ “The ministerial exception is not

limited to ordained clergy. Application of the doctrine depends on the function of the position,

and not on categorical notions of who is or is not a minister.” Dias v. Archdiocese of Cincinnati,

2012 U.S. Dist., 114 Fair Empl. Prac. Cas. (BNA) 1316, 2012 (S.D. Ohio Mar. 29, 2012) “A

general rule to determine if a plaintiff is a ‘minister’ under the ministerial exception is

determined by the nature of the employment. Thus, a court must determine whether a position is

important to the spiritual and pastoral mission of the church in order to decide whether the

ministerial exception applies.” Id. “The ministerial exception does not apply to employment

decisions concerning purely custodial or administrative personnel.” Id. “For the ministerial

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exception to bar an employment discrimination claim, two factors must be present: (1) the

employer must be a religious institution, and (2) the employee must be a ministerial employee.

Dias v. Archdiocese of Cincinnati, 2012 U.S. Dist., 114 Fair Empl. Prac. Cas. (BNA) 1316, 2012

(S.D. Ohio Mar. 29, 2012)

III. “Whether conduct is sufficiently outrageous for purposes of recovery for the

intentional infliction of emotional distress is a question of law.” Miller v. Galveston/Houston

Diocese, 911 S.W.2d 897, 1995 Tex. App. 3173 (Tex. App. Amarillo 1995)

IV. When reviewing the Title VII issue, the Court should apply the de novo standard. The de

novo standard should be applied because if there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law. Cannata at 172. Using this standard, this

Court should give little deference to the lower court, and should thus affirm the decision of the

federal district court.

V. When reviewing the intentional infliction issue, the Court should apply the de

novo standard. The de novo standard should be applied because if there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law. Id. Using this

standard, this Court should give little deference to the lower court, and should thus affirm the

decision of the federal district court.

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STATEMENT OF FACTS

In February of 2014 a large, conservative synagogue with a professional staff comprised

of mostly men hired Ms. Williams as their Director of Family Grief Services. Ms. Williams was

one of two women on the professional staff. Her two predecessors were both male. Ms.

Williams was hired to run the family grief program at the synagogue’s cemetery. Ms. Williams

was hired by the Board of Trustees (“the Board”), and relied upon the Board when they

encouraged her to believe that a written employment contract was not necessary.

Ms. Williams was successful at her job. The Board, who made personnel decisions, never

once expressed dissatisfaction with her work. Although she is not Jewish herself, Ms. Williams

took initiative to educate herself on innovative methods to further her success. These innovative

techniques included meditation and yoga. However, while Ms. Williams’ job involved

innovative methods on grief counseling, at least half of her work was administrative.

After a mere six months of working at the synagogue, Ms. Williams became the object of

an emotionally disruptive work environment. The Senior Rabbi, Bryant, a man in his seventies,

who was unfamiliar with Ms Williams’ techniques, began to belittle Ms. Williams in various,

and continuous ways throughout the remainder of her employment at the synagogue. The Rabbi

exhibited demeaning behavior and speech to Ms. Williams at least once a day for over six

months.

When Ms. Williams approached the Board to confide in them and seek advice on her

unbearable situation they did not help her. The Board, in which she had previously placed her

trust, dismissed the validity of Ms. Williams’ claims, and told her to “put up with it until he

retires.” The Board, consisting of entirely men, told this woman to “exercise some compassion

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and forbearance” toward the man who was degrading her on a daily basis, and “not to expect him

to accept her new and unconventional methods.” A man who is supposed to lead the clergy, and

the synagogue, could not be expected to adapt to modern techniques, a man that was stuck in his

time, was given a free pass to degrade one of only women employed by the synagogue, who

worked under his supervision. The Board of his own synagogue, and fellow members of his

clergy did not share the Rabbi’s views and actually concluded that Rabbi Bryant was “hopeless.”

The Rabbi further degraded Ms. Williams and her techniques by interrupting a grieving

session by rolling his eyes and saying “what’s this a ballet class?” The Rabbi’s personal disdain

was overt and abusive. When Ms. Williams’ techniques proved to be successful, increasing

membership dramatically, he resorted to ridiculing her credentials among the synagogue, telling

members that he “would rather see the grieving families watching ‘The Office’ than spend an

afternoon meditating with Ms. Williams. The Office, a comedy show, has nothing to do with the

Jewish grieving process, and to imply that Ms. Williams’ methods were of less meaning than a

comedy show, degrades not only Ms. Williams as person but as a professional.

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SUMMARY OF THE ARGUMENT

I. When determining whether the ministerial exception should be applied on a motion for

summary judgment it is essential to look toward both whether the person is an employee, and

also the specific type of employee. Once it is determined that the Plaintiff is, in fact, an

employee, the next question is whether her employment was ministerial or administrative by

its specific factual circumstances. To determine this, the Court must look to the duties of the

employee. Acts that further religion and involve religious teachings and principles lend

toward a finding of a ministerial employee. Other tasks, such as filing paperwork and other

ministerial duties, fall under the administrative category. As such the employee would be

considered an administrative employee. Here, at least half of Ms. Williams duties were

specifically administrative, and a close look at the facts reveals that none of her duties were

ministerial. Because at least half of her work is administrative in nature, Ms. Williams was an

administrative employee.

II. In assessing claims of intentional infliction of emotional distress (IIED) in the workplace,

courts look to a number of individual factors. The factor raised in the summary judgment here

is the level of treatment of Ms. Williams by Rabbi Bryant. Rabbi Bryant had an authority

position over her, and used that position to degrade Ms. Williams, her methods, her

professionalism, and her person on a daily basis. This demeaning behavior was continuous,

ongoing and relentless. It was not a matter of religion, and was not even condoned by the

synagogue. The trial court erred in granting summary judgment on the Plaintiff’s IIED claim,

in light of such ongoing, abusive treatment.

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ARGUMENT

I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR DEFENDANTS, THE BOARD AND RABBI BRYANT, ON THE GROUNDS THE MINISTERIAL EXCEPTION TO TITLE VII PRECLUDES PLAINTIFF’S GENDER DISCRIMINATION CLAIM.

A. The Court’s Rulings on Ministerial Exceptions Vary on Circumstances

The Court erred in granting summary judgment on the basis of the ministerial exception

to Ms. Williams’ gender discrimination claim. “For the ministerial exception to bar an

employment discrimination claim, two factors must be present: (1) the employer must be a

religious institution, and (2) the employee must be a ministerial employee.” Dias v. Archdiocese

of Cincinnati at 3174.

In Dias, the issue before the court was whether the defendant had established that the

plaintiff was a ministerial employee for purposes of applying the ministerial exception to her

gender discrimination claim. Courts refrain from establishing a standard definition for a

ministerial employee, but instead “articulate a test or standard for determining who qualifies as a

ministerial employee.” Id. quoting Hosanna-Tabor. Therefore, the Court needs not to determine

simply whether the plaintiff was, in fact, an employee, but what specific type of employee the

plaintiff was based on the prongs set forth in this test.

The Court goes on to explain the test, rather set of factors to determine ministerial

employment, established in Hosana-Tabor. The plaintiff in Hosana-Tabor was held out to be a

minister, was given a certificate, was required to take college-level courses in religious subjects

and was required to pass an examination regarding her ministerial college courses. She was

subsequently granted tenure. She taught classes directly relating to the religion four days a week

and exercised extreme discretion in what religious materials were utilized for her teaching of

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religion-based classes. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S.

Ct. 694, 181 L. Ed. 2d 650, 2012 U.S. 578, 80.

A Catholic institute employed Ms. Dias, a non-Catholic. When she was artificially

inseminated, the Church fired her on moral grounds, stating that the Church did not agree with

children conceived out of wedlock. When Dias filed, suit the Church responded with a motion

for summary judgment on the basis of the ministerial exception. Dias appealed. She stated that

the reason for her termination, her insemination, was based on gender. A male employee could

not be held to the same scrutiny. A man cannot be artificially inseminated, nor can he become

pregnant. Therefore a male employee cannot be held to the same morality issues for which Dias

was terminated. The Court in Dias, reviewed facts related to her employment including whether

the Church employed her as a minister, her education on the Catholic faith, whether she

performed “skills in ministry” and whether those skills were reviewed. They also looked to a

morality clause in Dias’ employment contract, when the Church attempted to hold Dias as a role

model. The Court held that Dias was not considered a ministerial employee for purposes of the

ministerial exception. The Court refers to Hosanna-Tabor when reviewing these circumstances.

Despite her training in the catholic faith and her role in teaching classes at a Catholic

school, Dias was not held out to be a minister, she was not reviewed by ministerial employees,

nor did she lead religious services. Dias’ duties were administrative; she served as a computer

teacher and taught computer systems. The Court held that “[t]he ministerial exception does not

apply to employment decisions concerning purely custodial or administrative personnel.” Dias,

at 43242.

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B. The Ministerial Exception Cannot Be Applied Too Broadly

The ministerial exception does not apply to Ms. Williams. Like Dias, Ms. Williams was

not of the faith of her employer; Ms. Williams is not Jewish. Both Williams and Dias faced

gender discrimination and their claims were met with the ministerial exception. While the Court

held that Ms. Williams was “clergy,” she, like Diaz, does not meet the standards of ministerial

employment. Although Williams received some training in Jewish law, an evaluation of her

educational background demonstrates that she does not meet the standard held out in Hosana-

Tabor. Ms. Williams was not tested following either of the Jewish courses she took. Her training

was not on a par with that set out in Hosana-Tabor. Additionally, Ms. Williams was permitted to

utilize innovative methods that the traditional members of the synagogue admittedly did not

relate with. These innovative methods demonstrate that there was a lack of formal review by

ministerial employees of authority. While the Rabbi did review her work, he did not do so with

the ideals of the synagogue in mind. He reviewed Ms. Williams’ methods under his own

personal discretion. His ideals were not supported by the Board members as evidenced by their

response to Williams’ complaints; to wait until he retired.

Williams was an employee in the broad sense. She performed work for the Defendants, a

religious institution, and a supervisor reviewed her work. However, Rabbi Bryant abused his

authority over Ms. Williams in order to degrade her. While Ms. Williams was an employee, her

duties varied and she was not involved in the ministry. She was hired to run the family grief

program at the synagogue’s cemetery. Ms. Williams testified “I’m trained in Jewish grief

counseling and much of my training involved Jewish law, but with funerals, much of what I did

was administrative: paperwork and such.” Her work at the cemetery, which was included in her

initial job description, was administrative. Her work at the synagogue was doing yoga and

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meditation with families in mourning. While her duties are described as “counseling,” the

performance of yoga and meditation are not distinctive of the Jewish faith. At least half of her

work was administrative. All of the duties specifically described in her initial job description are

administrative. All of her duties performed while at the cemetery were administrative.

Accordingly, it is a matter for the fact-finder to determine whether Ms. Williams was, in

fact, a ministerial employee under the standard provided in both Hosana-Tabor as well as in

Dias.

A religious institution may not invoke the ministerial exception against liability for denying

its members constitutional rights. “Insofar as race, sex and national origin are concerned, the text

of Title VII treats an employment dispute between a minister and his or her church like any other

employment dispute Comment: Free Exercise of the Courtroom: Why Religiously

Motivated Violence Can No Longer Hide Behind The First Amendment, 12

Scholar 95. In referring to the Free Exercise Clause and the Ministerial Exception to Title

VII, “…neither of these statutory exceptions removes race, sex, or national origin as an

impermissible basis of discrimination against employees of religious institutions. Nor do they

single out ministerial employees for lesser protections than those enjoyed by other church

employees.” Id. Religious employers cannot be permitted to sweep all tortious actions under the

ministerial exception rug. If Religious institutions were allowed to hide behind this exception, it

would lead to a slippery slope. Public policy needs to protect the individuals that work within the

religious community.

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II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT ON PLAINTIFF’S INTENTIONAL INFLICITON OF EMOTIONAL DISTRESS CLAIM BASED ON THE RABBI’S TREATMENT OF MS. WILLIAMS.

A. Authority Figures Showing Extreme and Outrageous Behavior At Work

Extreme and outrageous conduct in a work environment occurs when an authority

figure exercises their position to demean, degrade or take advantage of an employee in a manner

that initiates emotional distress. Liability for outrageous conduct has been limited to conduct that

society would “exclaim outrageous.” Wilson v. Monarch Paper Co., 939 F.2d 1138, 1991, 1344

(5th Cir. Tex. 1991). at 1142.

Employers are granted discretion to manage their business, including review, criticize,

demote, transfer, and discipline employees. Generally those abilities are considered a part of

work culture and are not considered extreme and outrageous conduct. However, in Wilson, “what

takes this case out of the realm of an ordinary employment dispute is the degrading and

humiliating way that [Wilson] was stripped of his duties and demoted from an executive

manager to an entry level warehouse supervisor.” Id. The court found “it difficult to conceive a

workplace scenario more painful and embarrassing than a vice-president being subjected to the

most menial duties; the steep downhill push to total humiliation was complete.” Id. At 1144.

In Miller v. Galveston/ Houston Diocese the outrageous element could not be met. Miller

and his coworkers attended a meeting in which they were invited to speak freely on a job related

issue. Miller was discharged from his employment upon speaking openly, and with candor in

relation to his disagreements with his job. Miller claimed that he was “falsely induced to speak

freely.” Miller v. Galveston/Houston Diocese 911 S.W.2d 899. While the employer’s conduct

was deemed “crass and poorly handled, it did not rise to the level of outrageous required for an

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emotional distress lawsuit.” Id. at 897. Complaints of activity arising in the employment setting

“must consist of more than mere employment disputes to surpass this threshold.” Id. “The act of

discharge, in and of itself, falls short even if coupled with bickering, insults and

embarrassments.” Id.

In order to establish an IIED claim the plaintiff must establish four elements. Those

elements include (1) that the defendant acted intentionally or recklessly, (2) that the conduct by

the defendant was extreme and outrageous, (3) the defendant’s actions caused the plaintiff

emotional distress, and (4) the emotional distress suffered by the plaintiff is severe. Wilson 939

F.2d 422 at 423. This case focuses on the element of extreme and outrageous conduct in

reference to Rabbi Bryant’s treatment of Ms. Williams.

“The extreme and outrageous character of the conduct may arise from an abuse by the

actor of a position, or a relation with the other, which gives him actual or apparent authority over

the other, or power to affect his interests. In the employment context, some courts have held that

a plaintiff’s status as an employee should entitle him to a greater degree of protection from insult

and outrage by a supervisor with authority over him than if he were a stranger.” GTE Sw. v.

Bruce, 998 S.W.2d 605 (Tex. 1999). “Emotional distress includes all highly unpleasant mental

reactions such as embarrassment, fright, horror, grief, shame, humiliation, and worry.” Id. The

employees in GTE “testified that they experienced anxiety and rear because of Shield’s

continuing harassment.” Gte Southwest v. Bruce, 998 S.W.2d 605, 608, 1999 Tex. 73, 1, 42 Tex.

Sup. J. 907, 15 I.E.R. Cas. (BNA) 509, 139. (CCH) P58, 698 (Tex. 1999).

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B. Rabbi Bryant’s Degrading Behavior Should Not Be Condoned

Rabbi Bryant is an authority figure over Ms. Williams he continuously exercises his

position to degrade Ms. Williams on a daily basis for months. His position as Senior Rabbi

allowed him the power to affect Williams’ interests. Ms. Williams was referred to as “no-age”

and refused to include her in activities with the rest of the professional staff. He also further

degraded her to the families at the synagogue, saying “you guys have enough grief; you don’t

need this mumbo-jumbo clouding your vision.” This not only discredits Ms. Williams as a

professional, but also degrades her among the grieving families, inhibiting their willingness to

utilize her skills.

“Civil remedies are typically unavailable to plaintiffs alleging that a religious group’s

tortious conduct has caused them some intangible or emotional harm.” Free Exercise St. Mary’s

School of Law, 12 Scholar 95. (Tex 2007). Damages are generally not awarded for IIED claims,

since emotional damages alone are intangible, and cannot have a finite monetary amount

attached. However, Ms. Williams can articulate damages because her outpatient treatment was

after her term of employment, not during, and her psychiatrist believes that it could take up to

eight months for her to return to her career. This is if she can return to her career at all, due to the

damage to her reputation caused by Rabbi Bryant. These are all tangible damages which can be

reasonably calcuated.

Rabbi Bryant degraded Ms. Williams to fellow professionals in the field, implying that

the show “The Office” had more validity than her methods. The degrading behavior by an

authority figure was both continuous and ongoing. These comments were not mere critiques by a

supervisor, as they were not constructive. It was not the view of the synagogue as a whole

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regarding her methods, as demonstrated by the Board telling Ms. Williams to wait until the

Rabbi retires.

Therefore the behavior should be viewed as extreme and outrageous and summary

judgment should not have been granted. The Rabbi should not be allowed to get a free pass, as a

matter of public policy, a religious institution may not invoke such exceptions “as protection

against liability for denying members other constitutional rights.” Comment: Free Exercise

of the Courtroom: Why Religiously Motivated Violence Can No Longer Hide

Behind The First Amendment, 12 Scholar 95. This would lead to a mentality of

sweeping rights aside, and disregarding when an individual’s rights are violated merely because

their employer is a Religious organization. This could lead to a further abuse of power and

degradation for Religious employees.

CONCLUSION

The Trial Court should not have granted the motion for summary judgment based on the

ministerial exception, as Ms. Williams’ work is comprised significantly of administrative work.

The Trial Court also erred in granting summary judgment on the IIED claim, as

Defendant’s treatment of Ms. Williams was extreme and outrageous in its continuous, ongoing,

and degrading nature. Both causes of action should go to a jury.

Respectfully submitted,

Meghan Kelly Bar Number: 11111111

The Kelly Law Firm, P.C.1996 Westvalley Place Round Rock, TX 78665 Work: (512) 375 -6535

April 10, 2015 COUNSEL FOR APPELANT

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