OPINION AND ORDER
This is the unusual employment discrimination case in which the facts are largely undisputed. Plaintiff Goty Richardson was employed by defendant Northwest Christian University as a professor of exercise science. When she became pregnant, plaintiff informed defendant in order to coordinate her maternity leave. After defendant confirmed plaintiff was unmarried, it offered her three choices: stop living with the father of her child, marry the father of her child, or lose her job. Plaintiff refused the first two options, and defendant fired her. Plaintiff then filed this action, alleging discrimination on the basis of sex, pregnancy, and marital status and asserting related state-law claims for breach of contract and intentional infliction of emotional distress. After discovery, both parties filed motions for summary judgment.
The parties make numerous arguments, but at its heart, this lawsuit is about what happens when an employment policy based on an employer’s sincerely held religious belief conflicts with an employee’s rights under federal and state discrimination laws. For the reasons set forth below, I enter summary judgment in plaintiffs favor on her claim for marital status discrimination, enter summary judgment in defendant’s favor on plaintiffs claim for intentional infliction of emotional distress, and dismiss plaintiffs request for punitive damages. The parties’ motions for summary judgment are otherwise denied.
BACKGROUND
Defendant is a nonprofit, Christian university located in Eugene, Oregon. De Young Decl. Ex. 1 (doc, 37-1). Part of its mission is to evangelize. Womack Dep. 32:8-14 (doc. 38-3). In keeping with its tradition and values, defendant expects its faculty to adhere to “Biblical Christianity,” which it defines as living according to “what is instructed [and] taught in the Bible.” Womack Dep. 23:1-2. Defendant hires only Christian faculty and expressly requires those faculty to integrate their Christian faith into their jobs, including their instruction to students, Richardson Dep. 107:16-19 (doc. 51-1).
Defendant believes that “[t]he Christian quest for truth relates to all aspects of the liberal arts and sciences, including the humanities, social sciences, and physical and life sciences.” Vickers Decl. Ex. I at 10 Oct. 25, 2016 (doc: 38-9). In the words of Dennis Lindsay, Vice-President for Academic Affairs, defendant believes it is vital that all subjects be taught by “Christians who are engaged in these disciplines and who bring that to the classroom.” Lindsay Dep. 45:3-6 (doc, 38-2). The integration of faith and employment duties “is not something mechanical ... it’s a matter of attitude, a perspective that a ... professor who is Christian brings to. that subject matter and models,” Lindsay Dep. 46:2-9. Employees must demonstrate a “maturing Christian faith,” which university President Joseph D. Womack further defined as “ongoing exercise in one’s faith and growing deeper. Their relationship with the Lord. Deeper in their understanding God’s word and the application of such. Active
In 2011, defendant solicited applications for an instructor of exercise science. The position description stated the successful applicant would “provide a solid model of ethical leadership” and “contribute to the integration of faith and learning by addressing this issue in class and in curriculum,” Vickers Decl. Ex. A at 10 Oct. 25, 2016 (doc. 38). The description further required applicants to demonstrate “a maturing Christian Faith and be supportive of NCU’s mission to develop competent, ethical leaders for service in the workplace, community, Church, and world.” Id. at 11.
Plaintiff began the application process by submitting a letter of interest, in which she indicated she would be “proud to be employed by a faculty that honors Christian principles and values.” Id, at 12. At defendant’s invitation, plaintiff submitted a personal faith statement as part of her application. Id. at 35; Richardson Dep. 89:14-19 (doc. 38-1). She discussed that faith statement in her interview with Dr, Lindsay. Richаrdson Dep. 92:21-25. In a follow-up letter to Dr. Lindsay, plaintiff expressed excitement about working with faculty “who demonstrate a maturing Christian faith, ethical leadership, [and] a strong moral compass[.]” Vickers Decl. Ex. A at 13 Oct, 25, 2016. At the time plaintiff applied for the position with NCU, she had two children. Although it appears plaintiff never affirmatively disclosed to her supervisors or coworkers that she was not married, Dr. Lindsay and others assumed (correctly) she was unmarried because she openly discussed her children yet never mentioned a spouse. Lindsay Dep. 66:14-16 (doc. 38-2).
In August 2011, plaintiff began work as an instructor of exercise science. Although she was subject to the faith integration .requirements described above, her job duties did not include teaching scripture or praying with students. McNeil Dep. 53:11-13 (doc. 38-4). The parties’ employment agreement was governed by a contract running for the academic year. Id. at 15. The contract listed certain key duties of employment and stated that
Other duties and responsibilities as well as faculty rights and privileges are described in the Faculty Handbook and Staff and Faculty Personnel Manual. Employment under this contract may be terminated for cause at any. time, as specified in the Faculty Handboоk, page 27, in which event all salary and other benefits shall cease as of the effective date of termination.
Id. At page 27, the Faculty Handbook states that “[a]dequate cause for termination includes, but is not limited to, professional incompetence, failure to meet performance responsibilities, moral delinquency, or lack of commitment to the mission of the University.” Vickers Decl. Ex. H at 11 Oct. 25, 2016. It also set forth procedures for terminating a full-time faculty member:
If a full-time teaching faculty member’s employment is being considered for termination, the Vice President for Academic Affairs and Dean of the Faculty convenes the Faculty.Review Panel to review the situation. They then meet with the faculty member. The Vice President for Academic Affairs and the Dean of tHe Faculty’s decision is final. The faculty member is notified in writing regarding .the decision taken.
Id.
The Staff and Faculty Personnel Manual contains a broad nondiscrimination provision:
The University’s policy is not to discriminate against any employee or applicant for employment because of age (within statutory limits), race, color, sex, national origin or ancestry, marital status, disability, sexual orientation, or any other protected status to the extent prohibited by applicable non-discrimination laws with respect to hiring, promotion, demotion, transfer, recruitment, termination, salary level or other forms of compensation, or any other term of condition of employment.
Vickers Decl. Ex. I at 11 Oct. 25, 2016. It also contains the following disclaimer:
Northwest Christian University intends this document to be informational and not to be construed as a contract of employment, express or implied, or as a guarantee of the benefits or policies stated herein. NCU may unilaterally add to, modify or withdraw any provision in this manual at any time for any reason. Employees will be notified of any changes in policies or procedures on or before their effective date.
Id. at 4.
Defendant has an anti-fraternization policy prohibiting sexual or romantic relationships between faculty and students, but otherwise has no written policy addressing employees’ sexual conduct. Lindsay Dep. 94:9-15 (doc. 38-7). Nonetheless, defendant takes the position that its policy requiring faculty to live their lives in conformity with Biblical Christianity necessarily includes a prohibition against “[o]n-going cohabitation and sexual relations outside of marriage” because those praсtices are “incompatible with the Christian ethic based on our understanding of the Holy Scripture.” Vickers Decl. Ex. E at 2 Oct. 25, 2016. At her deposition, plaintiff asserted she did not consider a prohibition on extramarital sex/cohabitation to be a stated part of defendant’s core values. Richardson Dep. 206:4 (doc. 51-1). She conceded, however, that she is unaware of any Christian religions that condone premarital sex. Richardson Dep. 107:20-22.
Plaintiff worked as an instructor for four years. Vickers Decl. Ex. A at 15, 22, 29 & 30 Oct. 25, 2016. During that time, she received uniformly positive performance reviews rating her as “above average” and “doing very well.” Id. at 16-21 & 23-28. In 2013, the Faculty Review Panel “enthusiastically recommend[ed plaintiff] for a renewed contract as a well-qualified instructor with a sincere commitment to students and peers.” Kalish Decl. Ex. A at 14 Nov. 18, 2016 (doc. 44). In 2015, she was promoted to assistant professor. Id. at 8. Also in 2015, plaintiff signed a new contract for the 2015-2016 academic year. Vickers Decl. Ex. C at 9 Oct. 25, 2016.
On May 21, 2015, plaintiff emailed Dr. Lindsay and another science professor, Heike McNeil, to inform them that she was pregnant with her third child. Vickers Decl. Ex. A at 31 Oct. 25, 2016. The following day, Dr. Lindsay sent a short email congratulating plaintiff. Id. at 32. Dr. Lindsay then privately discussed with Dr. McNeil his аssumption that plaintiff was not married and asked Dr. McNeil to “check in” regarding plaintiffs marital status. Kalish Decl. Ex. D at 5 Oct. 25, 2016 (doc. 34). Dr. McNeil set up a meeting with plaintiff over tea. At the end of the meeting, Dr. McNeil confirmed that plaintiff was not married but was living with the baby’s father. She told plaintiff that “could be an issue” and to anticipate an “awkward” conversation with Dr. Lindsay in the future. Richardson Dep. 171:13-172:9, 172:21-23 (doc. 38-1). Dr. McNeil then reported back to Dr. Lindsay that plaintiff was not married. Lindsay Dep. 90:11-16 (doc. 34-7).
On June 24, 2015, Dr. Lindsay and plaintiff met to discuss the situation. Dr. Lindsay informed plaintiff that defendant could not support her continued cohabitation outside of marriage. Vickers Decl. Ex. B at 8 Oct. 25, 2016. He presented plaintiff with
Dr. Lindsay followed up by phone on June 29, 2015 and June 30, 2015, leaving a voicemail requesting a call back each time. Vickers Decl. Ex. C Dec. 13, 2016 (doc. 51). Plaintiff responded in a June 30, 2015 email, which stated:
After deliberate and careful thought, I would like to preserve my privacy and decline speaking about my personal situation to my direct supervisors, coworkers, colleagues, or past and present students at this time.... I feel that discussion of my personal life at my place of work involving matters of, marriage, the health of my sexuality, my reproduction, and personal choices are not only inappropriate but also uncomfortable regardless of the institution in which I work.
Kalish Decl. Ex. A at 5 Oct. 25, 2016.
Dr. Lindsay responded the same day with a letter:
Conditions of your employment require compliance with the Faculty Handbook. The Faculty Handbook is clear that NCU is an academic institution with its foundation in the Christian Faith. NCU’s goals include that of an institution of integrity, mindful of its heritage and Christian service.
Your pregnancy outside of marriage and cohabitation with the father is incompatible with NCU’s mission and goals. NCU expects its faculty to be role models for the students. Your present circumstance does not reflect faith based conduct consistent with NCU goals or expectations.
In order to continue your employment, you must conform your lifestyle to reflect the faith based perspective of NCU. If you choose to continue to coha-bitate outside of marriage, your employment with NCU must end.
Vickers Decl. Ex. A at 34 Oct. 25, 2016.
In a second letter, sent July 6, 2015, Dr. Lindsay expanded:
Since your marital status is generally known and your pregnancy will be obvious to all, it will be apparent to faculty and students you have engaged in a lifestyle that does not reflect faith based conduct consistent with NCU goals or expectations.
Kalish Decl. Ex. A Nov. 18, 2016. In the July 6 letter, Dr. Lindsay gave plaintiff seven days to inform defendant of her decision.
On July 14, 2015, plaintiff responded in a letter. Id. at 8. She maintained her stance about privacy regarding personal matters such as her marital status and sexual activity. She also questioned the root of defendant’s concerns, noting that she had never been questioned about extramarital sex or cohabitation until she announced her pregnancy.
On July 22, 2015, Dr. Lindsay sent plaintiff a letter terminating her employment. He wrote:
Our focus is maintaining an institution which refleсts its core values based upon the Christian faith. Those core values do not allow for the lifestyle which you have chosen and, based upon your letter, intend to continue. I have tried to be clear with you that sexual relations outside of marriage is contrary to the University’s core values. Despite your statements, it is known within the University, both to faculty and to students, that you are a single mother and your pregnancy would result in a very demonstrative violation of that core value. I understand your desire to keep your private life private. However, your actions have resulted in that not being possible.
Vickers Decl. Ex. B at 9 Oct. 25, 2016. The termination letter offered plaintiff -a severance package — a payment equivalent to five months’ salary and ninety percent of her health insurance premiums over the same time period. De Young Dep. 73:9-10 (doc. 44-7). Receipt of the severance package was contingent on her signing a separation agreement that included, a release of all legal claims related to her termination. The termination letter stated that, “regardless of your decision to sign the Separation Agreement please understand that your employment with NCU is now at an end.” Vickers Decl. Ex. B at 9 Oct. 25, 2016. Plaintiff alleges that before she received that letter, she attempted to log into her email account and was informed by an IT staff member that she had been fired. Richardson Dep. 200:13-16 (doc. 38-1). At no time during her termination process did defendant convene the Faculty Review Panel according to the procedure outlined in the Faculty Handbook. De Young Dep. 80:3-5 (doc. 44-7).
As a general matter, defendant takes no affirmative steps to find out whether its employees are having sex or cohabiting outside of marriage. De Young Dep. 56:16— 17 (doc. 51-2); Womack Dep. 217:11-12 (doc. 38-2); Kalish Decl. Ex. B at 4 Oct. 25, 2016. Defendant has enforced its extra-' marital sex/cohabitation policy on three other occasions. In one instance, a male faculty member admitted to another faculty member that he had moved in with his fiancée. Lindsay Dep. 115:8-116:4 (doc. 38-2). After he was told he they had to separate until they were married, the faculty member spent a few nights on a colleague’s couch and then the couple obtained a marriage license. In the second instance, a female staff member disclosed she was living with a man to whom she was not married; Lindsay Dep. 119:11— 120:10. After she was told she could not continue cohabiting, she got married within days. In the third instance, a male faculty member was fired for having an extramarital sexual relationship with a student. Womack Dep. 216:9-19 (doc. 38-2). It is not clear how defendant learned about the relationship in the third instance, and in any event, plaintiff disputes the relevance of that example because the faculty member was also in violation of the school’s fraternization policy.
In August 2015, plaintiff filed a discrimination lawsuit in state court and a complaint with the Equal Employment Opportunity Commission. Vickers Decl. Ex. F Oct. 25, 2016. Defendant then removed the lawsuit to this Court. Doc. 1.
STANDARDS
Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party has the burden of establishing the absence of a genuine issue of material fact. Id.; Celotex Corp. v. Catrett,
DISCUSSION
Plaintiff initially asserted twelve claims for relief. She has stipulatеd to dismissal of five of those claims.
I begin by explaining why the First Amendment does not require dismissal of ■this action. I then turn to plaintiffs claims of discrimination, breach of contract, and intentional infliction of emotional distress. Finally, I address plaintiffs request for punitive damages.
I. First Amendment
Defendant argues that all of plaintiffs claims are barred by the First Amendment. Defendant’s primary contention is that the ministerial exception requires dismissal of this action. Defendant also argues that this Court should decline to adjudicate plaintiffs claims under the doctrine of ecclesiastical abstention. I address each argument in turn.
A. Ministerial Exception
In Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C.,
Since Hosanna-Tabor, the Ninth Circuit has addressed the scope of the ministerial exception in only one published opinion. In Puri v. Khalsa,
The out-of-circuit cases cited by the parties are of limited use in determining whether the ministerial exception applies here. It is difficult to distill broadly applicable rules from those cases, which involved distinct fact patterns. See Conlon v. InterVarsity Christian Fellowship, 777 F.3d 829, 835 (6th Cir. 2015) (applying the ministerial exception to claims of an employee with the title “spiritual director” whose duties included “leading others toward Christian maturity” and cultivating “intimacy with God and growth in Christlike character through personal and corporate spiritual disciplines”); Cannata v. Catholic Diocese of Austin,
Based on the undisputed facts in the summary judgment record, I conclude the ministerial exception does not apply in this case. First, plaintiffs title, assistant professor of exercise science, was secular. Second, plaintiff did not undergo any specialized religious training before assuming her position. Third, although there is ample evidence plaintiff held herself out as a Christian, there is no evidence she held herself out as a minister. With respect to the fourth factor, there is evidence plaintiff performed some important religious functions in her capacity as a professor. She was expected to integrate her Christianity into her teaching and demonstrate a maturing Christian faith. But any religious function was wholly secondary to her secular role: she was not tasked with performing any religious instruction and she was charged with no religious duties such as taking students to chapel or leading them in prayer. If plaintiff was a minister, it is hard to see how any teacher at a religious school would fall outside the exception. Courts have properly rejected such a
B. Ecclesiastical Abstention
Defendant argues that even if the ministerial exception does not .apply, the First Amendment bars this Court from weighing in on plaintiffs claims. As the Ninth Circuit explained in Puri, the ecclesiastical abstention doctrine, which is rooted in the Establishment and Religion Clauses, precludes courts from interfering “in the internal affairs” of religious organizations to “resolve religious controversies that incidentally affect civil rights.”
II. .Discrimination Claims■
Plaintiff asserts defendant discriminated against her on the basis of sex and pregnancy, in violation of Title VII of the Civil Rights Act, and on the basis of sex, pregnancy, and marital, status, in violation of Or. Rev. Stat. § 659A.030(1). I first analyze plaintiffs pregnancy and sex discrimination claims, and then turn to plaintiffs marital status discrimination claim.
A. Pregnancy/Sew Discrimination
Federal' and Oregon law prohibit employment discrimination on the basis of sex. 42 U.S.C. § 2000e-2(a); Or. Rev. Stat. § 659A.030(1). Pregnancy discrimination is a subset of sex discrimination. 42 U.S.C. § 2000e(k); Newport News Shipbuilding & Dry Dock Co. v. E.E.O.C.,
As a threshold matter, I must determine the correct way to frame plaintiffs pregnancy discrimination claims. A plaintiff may prove Title VII discrimination in one of three ways. First, she may point to a facially discriminatory policy — ¿ e., a policy that expressly differentiates on the basis of some protected classification; See Frank v. United Airlines,
Second, a plaintiff may .preyail on a discrimination claim by showing disparate impact. Disparate impact claims challenge “practices that are fair in form, but discriminatory in operation.” Griggs v. Duke Power Co.,
Finally, a plaintiff may prove discrimination by showing that the employer intentionally discriminated against her on the basis of a protected characteristic; Such discriminatory animus may be supported with two types of proof. The first type, direct evidence, is evidence “which, if believed, proves the fact of discriminatory animus without inference or presumption.” Coghlan v. Seafoods Co. LLC,
Based on the evidence in the summary judgment record, plaintiff may proceed only under the second framework. Plaintiff argues that defendant’s extramarital sex/cohabitation policy is facially discriminatory because it “treat[s] pregnant unmarried women different from non-pregnant unmarried women.” Pl.’s Opp. to Def.’s Mot. Summ. J. 15. This attempt to characterize defendant’s policy as facially discriminatory fails because the policy, which applies to all employees, does not expressly differentiate on the basis of a protected trait. Frank,
Plaintiffs disparate impact theory fails for a different reason: the summary judgment record does not contain' the necessary statistical evidence to support it. See Budnick v. Town of Carefree,
Plaintiff may proceed with her pregnancy discrimination claims, therefore, only if the summary judgment record contains evidence from which a jury could conclude defendant intended to discriminate against her on the basis of pregnancy. Because plaintiff has pointed to no direct evidence of discrimination, the McDonnell Douglas burden-shifting framework applies to her claims. Dawson,
It is undisputed that plaintiff meets the first three prongs of the McDonnell Douglas test. I conclude that she has carried her burden regarding the fourth prong as well. Defendant enforces its extramarital sex/cohabitation policy under two circumstances: (1) when it learns through rumor or self-reporting that an employee is having extramarital sex/cohabiting and (2) when it learns through rumor, self-reporting, or observation of pregnancy that an unmarried employee is pregnant.
Because plaintiff has produced prima facie evidence of discrimination, the burden shifts to defendant to articulate a legitimate, nondiscriminatory reason for firing her. Defendant identified its extramarital sex/cohabitation policy as the driv-
The burden therefore shifts back to plaintiff to show evidence of pretext. Defendant has introduced evidence that it has enforced its extramarital sex/cohabitation policy against three other employees, none of whom were pregnant. A reasonable juror could conclude from that evidence that defendant is attempting in good faith to prevent all faculty and staff from having sex outside of marriage. But plaintiff has pointed to at least three pieces of evidence from which a juror could infer pretext. First, a juror could infer that defendant’s chosen enforcement method will necessarily and obviously lead to disproportionate enforcement against pregnant women. See Cline,
B. Marital Status Discrimination
Unlike Title VII, Oregon law prohibits employment discrimination on this basis of marital status. Or. Rev. Stat. § 659A.030(1). This case presents a question of first impression: whether firing an employee for cohabiting constitutes marital status discrimination under the Oregon statute. As in all cases involving statutory interpretation, the court’s task is to “discern the legislature’s intent.” State v. Gaines,
Plaintiff asserts that she clearly was fired because of her marital status. Defendant presented her with two options that would permit her to keep her job: she could marry her partner or stop living with him. Plaintiff asserts her marital status drove the termination decision, because she was prohibited from doing something (cohabiting with the father of her child) that .she would not have been barred from doing had . she been married. Defendant disagrees and contends plaintiff was not fired because of her marital status, but rather because-of her conduct. Defendant points out that it had no problem continuing to employ plaintiff if she remained single; it simply was unwilling to continue employing her if she remained single and also lived with her partner.
I conclude the text of the law is ambiguous and fairly susceptible to both parties’ interpretations. To reach that conclusion, I consulted cases from other jurisdictions with similar marital status protections. See Courtney G. Joslin, Marital Status Discrimination 2.0, 95 B. U. L. Rev. 805, 808 (2015) (noting that twenty-one states have laws prohibiting marital status discrimination in housing, employment, or both). Courts in those states are split regarding whether rules against extramarital sex or cohabitation is marital status discriminatiоn.
The law’s context does not resolve the ambiguity. The statute neither defines “marital status” nor addresses the validity of a distinction between conduct and status. In three of the four cases listed above where the court found discrimination against cohabiting couples was not marital status discrimination, the court looked to other provisions of state law to give meaning to the term “marital status.” In Cooper,
In resolving whether banning cohabitation amounts to marital status discrimination, I question the utility and practicality of a bright-line distinction between conduct and status. That distinction has been raised, and rejected, in a number of recent cases addressing discrimination on the basis of sexual orientation. The Supreme Court has еxplained that “[w]hen homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination!)]” Lawrence v. Texas,
These cases on sexual orientation discrimination do not, standing alone, resolve the question before me today. Sexual orientation is a person’s sexual identity in relation to the gender to which they are attracted. As a result, in the sexual orientation discrimination context, conduct (as expressed by who one marries and/or has sex with) and status are a near-perfect fit. In the marital status discrimination context, the relationship between conduct and status is not as clear because single and married people alike have sex outside of marriage and live with people who are not their spouses. Nonetheless, the sexual orientation discrimination cases are illuminating because they underscore that “[cjonduct and status are often inextricably linked.” Veenstra v. Washtenaw Country Club,
The purpose of Oregon’s discrimination law is to remove “arbitrary standards” and to “ensure the human dignity of all people within this state and protect their health, safety, and morals from the consequences of intergroup hostility, tensions, and practices.” Or. Rev. Stat. § 659A.003. Oregon’s discrimination law is a remedial statute, Neff v. Jackson Cnty.,
Defendant argues that even if such a policy is barred by the Oregon statute, that statute does not apply here for three reasons, all related to defendant’s status as a religious organization. First, defendant notes that Oregon law expressly permits religious entities to prefer employees on the basis of shared religion. Or. Rev. Stat. § 659A.006(4). Defendant cites cases in which federal courts, interpreting a provision of federal law the parties agree is identical to the provision of Oregon law at issue here, held that protected preference for a particular religion includes “the decision to terminate an employee whose conduct or religious beliefs are inconsistent with those of its employer.” See Hall v. Baptist Mem. Health Care Corp.,
Second, defendant contends that holding it liable for marital status discrimination under these circumstances violates its negative associational rights under the First Amendment — specifically, the freedоm not to associate with faculty who have sex outside of marriage. The Supreme Court has rejected the argument that application of Title VII to private employers infringes the First Amendment right of association. See Hishon v. King & Spalding,
Third, defendant asserts application of the marital status law here runs afoul of Article I, sections 2 and 3 of the Oregon Constitution. Section 2 provides that “[a]ll men shall be secure in their Natural right, to worship Almighty God according to the dictates of their own consciences.” Or. Const. Art. I, § 2. Section 3 prohibits laws that “control the free exercise, and enjoyment of relig[i]ous opinions or interfere with the rights of conscience.” Or. Const. Art. I, § 3. Defendant concedes the marital status law is “generally applicable and neutral toward religion.” State v. Hickman,
Defendant has cited no case in which an Oregon court granted such an exemption, and this Court is aware of none. Whatever the Oregon courts mean when they say that the state constitution may sometimes require an individual exemption to a generally applicable law, it cannot be that such an exemption is required any time an individual or entity objects to a state law based on sincerely held religious belief. If exemptions were available any time a state law conflicted with a religious belief, the exception would swallow the rule and religious employers would be broadly immunized from any employment discrimination law that conflicted with their religious beliefs. The only way to avoid that result would be for courts to inquire into how central a given belief is to a particular religion — an inquiry that is unquestionably off-limits. See New York v. Cathedral Academy,
Based on the undisputed facts in' the summary judgment record, defendant discriminated against plaintiff because of her marital status, in violation of Oregon law. Plaintiff is therefore entitled to summary judgment on her marital status discrimination claim.
III. Intentional Infliction of Emotional . Distress
In order to state a claim for intentional infliction of emotional distress, the plaintiff must show that (1) the defendant “intended to inflict severe mental or emotional distress on the plaintiff’; (2) “the defendant’s actions consisted of ‘some extraordinary transgression of the bounds of socially tolerable conduct’ or exceeded ‘any reasonable limit of social toleration’ and (3) the defendant’s conduct “in fact cause[d] the plaintiff to suffer severe emotional distress.” Hetfeld v. Bostwick,
Plaintiff contends defendant exceeded all reasonable limits of social toleration by harassing her through letters and phone messages and attempting to use the threat of the loss of her job and health insurance to coerce her to marry or completely dissociate from the father of her unborn child. A jury easily could find that the events surrounding plaintiffs termination were stressful and traumatic .for her. But on this summary judgment .record, no reasonable juror could conclude that defendant’s behavior was so outrageous that it went “beyond the farthest reaches of socially tolerable behavior” to create a jury question on liability. See Gordon v. Kleinfelder W., Inc.,
IV. Breach of Contract
Plaintiff contends defendant breached its employment contract with her by (1) firing her on the basis of pregnancy/sex and marital status; (2) firing her without convening a Faculty Review Panel; and (3) firing her without just cause. Defendant’s motion for summary judgment fails as to all three theories.
To convert her discrimination claims into contract claims, plaintiff relies on the contract’s incorporation by reference" of the Faculty and Staff Personnel Manual’s nondiscrimination provision. Defendant contends the nondiscrimination provisiоn is not binding because of the disclaimer that the manual is informational and not to be. construed as a contract. I agree that the disclaimer, standing alone, would have that effect. But plaintiffs employment contract expressly incorporated the manual’s rights and obligations. Accordingly, there is a question of fact whether the manual’s nondiscrimination provision was a part plaintiffs employment contract. See Yartzoff v. Democrat-Herald Publ’g Co., Inc.,
Plaintiffs,right to have a Faculty Review. Panel convened comes from the Faculty Handbook, which contains no disclaimer like the one of the Faculty and Staff Personnel Manual. Moreover, plain
Finally, plaintiff argues she was fired without just cause. Where a “just cause” standard applies to termination, the discharge may be upheld “only if it meets two criteria of reasonableness: one that it is reasonable to discharge employees because of .pertain conduct, and the other, that the employee had fair notice, express or implied, that such conduct would be ground for discharge.” Simpson v. W. Graphics Corp.,
V. Punitive Damages
For federal claims, punitive damages are available only if the defendant acted with “malice or reckless indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C. § 1981 a(b). Punitive damages are generally unavailable in" discrimination cases where the legal theory is “novel.” Kolstad v. Am. Dental Ass’n,
Plaintiffs Motion for Partial Summary Judgment is GRANTED IN PART and DENIED IN PART, and Defendant’s Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART, as follows:
1. Plaintiff is entitled to summary judgment on her marital status discrimination claim (third claim for relief);
2. Defendant is entitled to summary judgment on plaintiffs claim for intentional infliction of emotional distress (seventh claim for relief);
3. Plaintiffs request for punitive damages is dismissed;
4. Defendant’s motion for summary judgment is denied as moot with respect to the claims plaintiff voluntarily dismissed (fourth, fifth, eighth, ninth, and twelfth claims for relief); and
5. The parties’ motions for summary judgment are otherwise denied. Plaintiff may proceed with her claims for sex/pregnancy discrimination (first, second, tenth and eleventh claims for relief) and breach of contract (sixth claim for relief). With respect to her sex/pregnancy discrimination claims, plaintiff is limited to a disparate treatment/pretext theory.
IT IS SO ORDERED.
Dated this 16th day of March, 2017.
Notes
. Plaintiff voluntarily dismissed her state and federal claims of religious discrimination (fourth and twelfth claims for relief, respectively), her claim for wrongful termination in violаtion of public policy (fifth claim for relief), her claim for violation of Oregon’s wage laws (eighth claim for relief), and her claim that defendant violated her right to specific treatment in specific situations (ninth claim for relief). See Doc. 42. With respect to those claims, defendant’s motion for summary judgment is denied as moot.
. The Hosanna-Tabor Court confirmed the existence of the ministerial exception as an affirmative defense to employment discrimination claims, but expressed "no view on whether the exception bars other. types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers.” Id. at 196, 132
. The parties disagree on the formulation of this fourth prong of the McDonnell Douglas prima facie case. Defendant contends plaintiff must show she was treated differently from similarly situated employees оutside her protected class — i.e., that male employees and/or non-pregnant female employees were treated more favorably than she with respect to the extramarital sex policy. Plaintiff disagrees, arguing that identifying similarly situated employees is but one possible way of demonstrating a causal relationship between the adverse employment action and her pregnancy.
Plaintiff has the better argument. It is true that the Ninth Circuit sometimes has stated that an employee asserting a discrimination claim must show similarly situated individuals outside the protected class were treated more favorably. E.g. Aragon,
. Although the record contains no evidence of enforcement based on observation of pregnancy, Dr. Lindsay conceded that if defendant had learned about plaintiff’s pregnancy through observation, he would have asked the same questions about extramarital sex/cohabitation. Lindsay Dep. 72:7-15 (doc. 46-2),
. Oregon courts may consider legislative history whenever it appears "useful" to their statutory analysis. Gaines,
. Some states' statutes make plain that they do not protect unmarried, cohabiting couples. See, e.g., Conn. Gen. Stat. Ann. § 46a-64c(b)(1) (housing law's prohibition on discrimination on the basis of marital status “shall not be construed to prohibit the denial of a dwelling to a man or a woman who are both unrelated by blood and not married to each other”). The split in authority has arisen in states with no such clear exclusion,
.Smith had no majority opinion. It consists of a plurality opinion and two concurrence/dissents, with the judges disagreeing over whether the California statute impermis-sibly infringed the defendant employer’s religious rights. All three opinions, however, agreed that the statute by its terms protected cohabiting couples. See Smith,
. A split in authority does not automatically render a statute unambiguous. See Rosmer v. Pfizer Inc.,