Former Roncalli counselor files appeal

The group representing a former Roncalli High School counselor has filed an appeal, in hopes a Seventh U.S. Circuit Court of Appeals judge will overturn a decision to dismiss the counselor’s lawsuit.

The former counselor, Shelly Fitzgerald, was placed on administrative leave at the start of the 2018-19 school year, when school officials discovered she was in a same-sex marriage. The case gained national attention, with Fitzgerald appearing on the “Ellen” show. The original lawsuit claimed Roncalli officials’ decision to not renew her contract violated Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on gender, race, color, national origin and religion, arguing that terminating an employee’s contract on the basis of same-sex marriage violated the gender clause.

Fitzgerald is represented by Americans United for the Separation of Church and State. Attorneys with the group are appealing the Sept. 30 decision from the United States District Court for the Southern District of Indiana not to hear her lawsuit. Fitzgerald’s attorneys argue her job as co-director of Roncalli’s guidance department was primarily secular and she did not perform religious duties at the Catholic school. However, attorneys for the school allege she worked under a “teaching ministry contract” and was expected to be a role model for students and therefore did have ministerial duties.

Young weighed the arguments and said in the summary judgment on the case that Fitzgerald’s case was similar to a case brought by another former Roncalli guidance counselor, Lynn Starkey, who was also fired for being in a same-sex marriage. All three elements used to side with Roncalli in that case are present in Fitzgerald’s case, the judgment says.

“All this indicates Roncalli entrusted guidance counselors like Fitzgerald to convey the Church’s message in addition to their secular duties. And under Seventh Circuit precedent, Fitzgerald’s non-performance of these entrusted duties makes her ‘an underperforming minister,’” Young said in the judgment.

School officials put Starkey on leave during the same school year and chose not to renew her contract. That lawsuit, filed by Indianapolis-based law firm DeLaney and DeLaney LLC against Roncalli and the Archdiocese of Indianapolis, was unsuccessful, as was an appeal with the 7th Circuit Court of Appeals, with the court issuing a decision in July claiming the Roncalli contract had a moral clause requiring employees to refrain from a lifestyle that doesn’t run concurrently with the teachings of the Roman Catholic Church.

Rachel Laser, president and CEO of Americans United, hopes a decision from the appeals court in favor of Fitzgerald to hear the lawsuit will send a message to not just Roncalli, but all Catholic schools, Laser said in an Americans United news release.

“The court wrongly held that Catholic schools are above the law. According to the proffered rationale, a Catholic school can strip every employee, from janitor, to cook, to P.E. teacher, to guidance counselor, of the protection of basic civil rights laws by shoehorning a few religious duties into their job description,” Laser said. “Religious extremists are waging a crusade to expand a commonsense rule that allows houses of worship to select their own clergy according to their own faith, into a means to avoid liability for bigotry and discrimination.”

Following the decision to strike down the Starkey appeal, representatives of Becket Law, the Washington D.C.-based law firm that represented Roncalli and the Archdiocese in the lawsuit, issued a statement.

“Catholic schools are tasked by the Church to uphold the dignity of every human person and teach the fullness of the Catholic faith,” Luke Goodrich, vice president and senior counsel at Becket Law, said in the July statement. “The Seventh Circuit’s decision ensures that religious schools can remain faithful to their mission.”

Within the next few weeks, Fitzgerald’s attorneys expect the 7th U.S. Circuit Court of Appeals to set a briefing schedule, which will give the next steps for the appeal process, said Liz Hayes, spokesperson for Americans United, in an email.