Case: 21-2475 Document: 13 Filed: 10/01/2021 Pages: 112

APPEAL NO. 21-2475

UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

JOHN M. KLUGE,
Plaintiff-Appellant,

v.

BROWNSBURG COMMUNITY SCHOOL CORPORATION,

Defendant-Appellee.

On Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division
Honorable Jane Magnus-Stinson
Case No. 1:19-cv-02462-JMS-DLP

APPELLANT’S OPENING BRIEF

MICHAEL J. CORK JOHN J. BURSCH

5754 N. Delaware Street ALLIANCE DEFENDING FREEDOM
Indianapolis, IN 46220 440 First Street, NW, Suite 600
(317) 517-4217 Washington, DC 20001
cork0@[Link] (616) 450-4235
jbursch@[Link]

RORY T. GRAY
ALLIANCE DEFENDING FREEDOM
1000 Hurricane Shoals Rd. NE
Suite D-1100
Lawrenceville, GA 30043
(770) 339-0774
rgray@[Link]

Attorneys for Plaintiff-Appellant

 Save As Clear Form
Case: 21-2475 Document: 13 Filed: 10/01/2021 Pages: 112
APPEARANCE & CIRCUIT RULE 26.1 DISCLOSURE STATEMENT

21-2475
Appellate Court No: _______________

John M. Kluge v. Brownsburg Community School Corporation

Short Caption: _________________________________________________________________________________________

To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party, amicus curiae,
intervenor or a private attorney representing a government party, must furnish a disclosure statement providing the following information
in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.

The Court prefers that the disclosure statements be filed immediately following docketing; but, the disclosure statement must be filed
within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs first. Attorneys are
required to file an amended statement to reflect any material changes in the required information. The text of the statement must also be
included in the front of the table of contents of the party’s main brief. Counsel is required to complete the entire statement and to use
N/A for any information that is not applicable if this form is used.

[ ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED AND
INDICATE WHICH INFORMATION IS NEW OR REVISED.

(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the corporate disclosure
information required by Fed. R. App. P. 26.1 by completing item #3):
John M. Kluge
________________________________________________________________________________________________________

________________________________________________________________________________________________________

(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or
before an administrative agency) or are expected to appear for the party in this court:
Alliance Defending Freedom (will be appearing in this court)
________________________________________________________________________________________________________

________________________________________________________________________________________________________
Michael J. Cork, Esq.; Kevin Green Associates; and Roscoe Stovall, Jr. & Associates (in district court proceedings)

(3) If the party, amicus or intervenor is a corporation:

i) Identify all its parent corporations, if any; and

N/A
________________________________________________________________________________________________

ii) list any publicly held company that owns 10% or more of the party’s, amicus’ or intervenor’s stock:

N/A
________________________________________________________________________________________________

(4) Provide information required by FRAP 26.1(b) – Organizational Victims in Criminal Cases:

N/A
________________________________________________________________________________________________________

(5) Provide Debtor information required by FRAP 26.1 (c) 1 & 2:

N/A
________________________________________________________________________________________________________

s/John J. Bursch
Attorney’s Signature: ________________________________________ August 16, 2021
Date: ________________________________________

John J. Bursch
Attorney’s Printed Name: __________________________________________________________________________________

Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). ✔ No _____
Yes _____

440 First Street, NW, Suite 600

Address: ______________________________________________________________________________________________

Washington, DC 20001
________________________________________________________________________________________________________

616-450-4235
Phone Number: ________________________________________ 202-347-3622
Fax Number: ______________________________________

jbursch@[Link]
E-Mail Address: __________________________________________________________________________________________________
rev. 12/19 AK
 Save As Clear Form
Case: 21-2475 Document: 13 Filed: 10/01/2021 Pages: 112
APPEARANCE & CIRCUIT RULE 26.1 DISCLOSURE STATEMENT

21-2475
Appellate Court No: _______________

John M. Kluge v. Brownsburg Community School Corporation

Short Caption: _________________________________________________________________________________________

To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party, amicus curiae,
intervenor or a private attorney representing a government party, must furnish a disclosure statement providing the following information
in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.

The Court prefers that the disclosure statements be filed immediately following docketing; but, the disclosure statement must be filed
within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs first. Attorneys are
required to file an amended statement to reflect any material changes in the required information. The text of the statement must also be
included in the front of the table of contents of the party’s main brief. Counsel is required to complete the entire statement and to use
N/A for any information that is not applicable if this form is used.

[ ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED AND
INDICATE WHICH INFORMATION IS NEW OR REVISED.

(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the corporate disclosure
information required by Fed. R. App. P. 26.1 by completing item #3):
John M. Kluge
________________________________________________________________________________________________________

________________________________________________________________________________________________________

(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or
before an administrative agency) or are expected to appear for the party in this court:
Alliance Defending Freedom (will be appearing in this court)
________________________________________________________________________________________________________

________________________________________________________________________________________________________
Michael J. Cork, Esq.; Kevin Green Associates; and Roscoe Stovall, Jr. & Associates (in district court proceedings)

(3) If the party, amicus or intervenor is a corporation:

i) Identify all its parent corporations, if any; and

N/A
________________________________________________________________________________________________

ii) list any publicly held company that owns 10% or more of the party’s, amicus’ or intervenor’s stock:

N/A
________________________________________________________________________________________________

(4) Provide information required by FRAP 26.1(b) – Organizational Victims in Criminal Cases:

N/A
________________________________________________________________________________________________________

(5) Provide Debtor information required by FRAP 26.1 (c) 1 & 2:

N/A
________________________________________________________________________________________________________

s/Rory T. Gray
Attorney’s Signature: ________________________________________ August 16, 2021
Date: ________________________________________

Rory T. Gray
Attorney’s Printed Name: __________________________________________________________________________________

Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). ✔
Yes _____ No _____

1000 Hurricane Shoals Rd., NE, Suite D-1100

Address: ______________________________________________________________________________________________

Lawrenceville, GA 30043
________________________________________________________________________________________________________

770-339-0774
Phone Number: ________________________________________ 770-339-6744
Fax Number: ______________________________________

rgray@[Link]
E-Mail Address: __________________________________________________________________________________________________
rev. 12/19 AK
 Save As Clear Form
Case: 21-2475 Document: 13 Filed: 10/01/2021 Pages: 112
APPEARANCE & CIRCUIT RULE 26.1 DISCLOSURE STATEMENT

Appellate Court No: _______________

21-2475

John M. Kluge v. Brownsburg Community School Corporation

Short Caption: _________________________________________________________________________________________

To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party, amicus curiae,
intervenor or a private attorney representing a government party, must furnish a disclosure statement providing the following information
in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.

The Court prefers that the disclosure statements be filed immediately following docketing; but, the disclosure statement must be filed
within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs first. Attorneys are
required to file an amended statement to reflect any material changes in the required information. The text of the statement must also be
included in the front of the table of contents of the party’s main brief. Counsel is required to complete the entire statement and to use
N/A for any information that is not applicable if this form is used.

[ ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED AND
INDICATE WHICH INFORMATION IS NEW OR REVISED.

(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the corporate disclosure
information required by Fed. R. App. P. 26.1 by completing item #3):
________________________________________________________________________________________________________
John M. Kluge

________________________________________________________________________________________________________

(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or
before an administrative agency) or are expected to appear for the party in this court:
________________________________________________________________________________________________________
Alliance Defending Freedom and Michael J. Cork, Esq. (will be appearing in this court)

________________________________________________________________________________________________________
Kevin Green Associates and Roscoe Stovall, Jr. & Associates (in district court proceedings)

(3) If the party, amicus or intervenor is a corporation:

i) Identify all its parent corporations, if any; and

N/A
________________________________________________________________________________________________

ii) list any publicly held company that owns 10% or more of the party’s, amicus’ or intervenor’s stock:

N/A
________________________________________________________________________________________________

(4) Provide information required by FRAP 26.1(b) – Organizational Victims in Criminal Cases:

________________________________________________________________________________________________________
N/A

(5) Provide Debtor information required by FRAP 26.1 (c) 1 & 2:

N/A
________________________________________________________________________________________________________

/s/ Michael J. Cork

Attorney’s Signature: ________________________________________ October 1, 2021
Date: ________________________________________

Attorney’s Printed Name: __________________________________________________________________________________

Michael J. Cork

Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). ✔
Yes _____ No _____

5754 N. Delaware Street

Address: ______________________________________________________________________________________________

Indianapolis, IN 46220-2528
________________________________________________________________________________________________________

317-517-4217
Phone Number: ________________________________________ Fax Number: ______________________________________
NA

Cork0@[Link]
E-Mail Address: __________________________________________________________________________________________________
rev. 12/19 AK
 Case: 21-2475 Document: 13 Filed: 10/01/2021 Pages: 112

CORPORATE DISCLOSURE STATEMENT

No nongovernmental corporation is a party to this case.

REQUEST FOR ORAL ARGUMENT

Oral argument is appropriate because Mr. Kluge’s appeal involves nationally

important questions related to Title VII’s religious-accommodation requirement

that this Court has not yet resolved, questions that other federal circuits have

resolved differently than the district court did here. Given the legal significance of

these questions, the potential for circuit conflict, and the fact-bound nature of Title

VII’s religious-accommodation mandate, oral argument would materially assist the

panel in resolving this appeal.

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TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT ................................................................ i

REQUEST FOR ORAL ARGUMENT ............................................................................ i

TABLE OF AUTHORITIES .......................................................................................... v

JURISDICTIONAL STATEMENT ............................................................................... 1

STATEMENT OF THE ISSUES ................................................................................... 2

PERTINENT STATUTES AND REGULATIONS ....................................................... 3

INTRODUCTION .......................................................................................................... 4

STATEMENT OF THE CASE ....................................................................................... 5

A. Mr. Kluge’s teaching career ..................................................................... 5

B. Mr. Kluge’s faith ....................................................................................... 6

C. The district introduces transgender-affirmation rules. .......................... 7

D. Mr. Kluge’s religious accommodation ...................................................... 9

E. The accommodation’s unqualified success ............................................ 11

F. After grumblings from teachers and students, the district

pressures Mr. Kluge to resign................................................................ 12

G. The district overhauls its transgender-affirmation rules and

proclaims “no exceptions allowed.” ........................................................ 13

H. Mr. Kluge abides by his religious accommodation at an orchestra

awards ceremony. ................................................................................... 17

I. Mr. Kluge submits a conditional resignation, then tries to revoke

it. But the district pushes it through..................................................... 18

J. District-court proceedings ...................................................................... 19

1. Procedural history ....................................................................... 19

2. The district court’s ruling ............................................................ 20

SUMMARY OF ARGUMENT ..................................................................................... 22

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ARGUMENT ................................................................................................................ 23

I. Standard of review ............................................................................................ 23

II. Mr. Kluge is entitled to summary judgment on his religious

discrimination claim because the school district revoked a reasonable
accommodation without showing undue hardship .......................................... 24

A. The Supreme Court’s religious-accommodation cases .......................... 24

B. This Court’s failure-to-accommodate framework .................................. 25

C. Mr. Kluge established a prima facie case of discrimination. ................ 27

1. Mr. Kluge’s beliefs are religious.................................................. 28

2. Mr. Kluge’s beliefs are sincere. ................................................... 29

3. The district knew Mr. Kluge needed accommodation. ............... 31

4. The district forced Mr. Kluge to resign based on his

religious practice.......................................................................... 31

D. The district withdrew the reasonable accommodation it had

extended to Mr. Kluge without justifying undue hardship. ................. 32

1. Third party grumblings do not create undue hardship. ............ 33

2. Third parties’ complaints were based on the illegitimate

expectation of universal affirmation. .......................................... 35

3. No other evidence is relevant because the district did not

consider it in forcing Mr. Kluge to resign. .................................. 37

4. The district’s hypothetical-litigation defense fails. .................... 38

5. Baz v. Walters is inapposite. ....................................................... 39

III. The district court erred in rejecting Mr. Kluge’s retaliation claim................. 40

A. Mr. Kluge engaged in statutorily protected activity. ............................ 41

B. Mr. Kluge suffered materially adverse action....................................... 41

C. A causal link exists between Mr. Kluge’s protected activity and

the district’s adverse actions.................................................................. 42

CONCLUSION............................................................................................................. 43

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CERTIFICATE OF COMPLIANCE ............................................................................ 44

CERTIFICATE OF SERVICE ..................................................................................... 45

CIRCUIT RULE 30(d) STATEMENT ......................................................................... 46

ATTACHED REQUIRED SHORT APPENDIX ......................................................... 47

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TABLE OF AUTHORITIES

Cases

Adeyeye v. Heartland Sweeteners, LLC,

721 F.3d 444 (7th Cir. 2013) ..................................................................... passim

Anderson v. General Dynamics Convair Aerospace Division,

589 F.2d 397 (9th Cir. 1978) ............................................................................. 34

Anderson v. U.S.F. Logistics (IMC), Inc.,

274 F.3d 470 (7th Cir. 2001) ............................................................................. 27

Ansonia Board of Education v. Philbrook,

479 U.S. 60 (1986) ........................................................................... 24, 25, 26, 30

Baz v. Walters,
782 F.2d 701 (7th Cir. 1986) ............................................................................. 39

Burns v. Southern Pacific Transportation Company,

589 F.2d 403 (9th Cir. 1978) ............................................................................. 34

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) ........................................................................................... 28

Cullen v. Olin Corporation,

195 F.3d 317 (7th Cir. 1999) ............................................................................. 37

Cummins v. Parker Seal Company,

516 F.2d 544 (6th Cir. 1975) ....................................................................... 33, 34

EEOC v. Abercrombie & Fitch Stores, Inc.,

575 U.S. 768 (2015) ................................................................................... passim

EEOC v. Ilona of Hungary, Inc.,

108 F.3d 1569 (7th Cir. 1997) ......................................................... 25, 26, 27, 30

EEOC v. Walmart Stores East, L.P.,

992 F.3d 656 (7th Cir. 2021) ............................................................................. 26

Franks v. Bowman Transportation Company,

424 U.S. 747 (1976) ........................................................................................... 33

Grayson v. Schuler,
666 F.3d 450 (7th Cir. 2012) ............................................................................. 30

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Hunt-Golliday v. Metropolitan Water Reclamation District of Greater Chicago,

104 F.3d 1004 (7th Cir. 1997) ..................................................................... 41, 42

Loudon County School Board v. Cross,

No. 210584 (Va. Aug. 30, 2021), [Link] .................................. 29

Markel Insurance Company v. Rau,

954 F.3d 1012 (7th Cir. 2020) ........................................................................... 23

Martino v. Western & Southern Financial Group,

715 F.3d 195 (7th Cir. 2013) ............................................................................. 40

Matthews v. Wal-Mart Stores, Inc.,

417 F. App’x 552 (7th Cir. 2011) ....................................................................... 38

McCottrell v. White,
933 F.3d 651 (7th Cir. 2019) ............................................................................. 23

McKennon v. Nashville Banner Publishing Company,

513 U.S. 352 (1995) ........................................................................................... 37

Meriwether v. Hartop,
992 F.3d 492 (6th Cir. 2021) ....................................................................... 28, 29

Miller v. Smith,
220 F.3d 491 (7th Cir. 2000) ............................................................................. 23

Osler Institute, Inc. v. Forde,

333 F.3d 832 (7th Cir. 2003) ............................................................................. 42

Palmore v. Sidoti,
466 U.S. 429 (1984) ........................................................................................... 36

Peterson v. Hewlett-Packard Company,

358 F.3d 599 (9th Cir. 2004) ............................................................................. 35

Porter v. City of Chicago,

700 F.3d 944 (7th Cir. 2012) ..................................................................... passim

Reed v. Great Lakes Companies,

330 F.3d 931 (7th Cir. 2003) ............................................................................. 26

Rodriguez v. City of Chicago,

156 F.3d 771 (7th Cir. 1998) ............................................................................. 41

Scaife v. Racine County,

238 F.3d 906 (7th Cir. 2001) ............................................................................. 23

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Thomas v. Review Board of Indiana Employment Security Division,

450 U.S. 707 (1981) ........................................................................................... 31

Tinker v. Des Moines Independent Community School District,

393 U.S. 503 (1969) ........................................................................................... 36

Trans World Airlines, Inc. v. Hardison,

432 U.S. 63 (1977) ....................................................................................... 24, 27

Turner Broadcasting System, Inc. v. FCC,

512 U.S. 622 (1994) ........................................................................................... 36

United States v. Bethlehem Steel Corporation,

446 F.2d 652 (2d Cir. 1971) ........................................................................ 33, 36

United States v. Seeger,

380 U.S. 163 (1965) ........................................................................................... 30

United States v. Varner,

948 F.3d 250 (5th Cir. 2020) ....................................................................... 29, 36

Venters v. City of Delphi,

123 F.3d 956 (7th Cir. 1997) ............................................................................. 37

Vlaming v. West Point School Board,

10 F.4th 300 (4th Cir. 2021) ............................................................................. 28

Whitaker by Whitaker v. Kenosha Unified School District No. 1,

858 F.3d 1034 (7th Cir. 2017) ........................................................................... 39

Zamecnik v. Indian Prairie School District No. 204,

636 F.3d 874 (7th Cir. 2011) ......................................................................... 4, 36

Statutes

28 U.S.C. § 1291 ............................................................................................................. 1

28 U.S.C. § 1331 ............................................................................................................. 1

28 U.S.C. § 1343 ............................................................................................................. 1

28 U.S.C. § 2107(a) ........................................................................................................ 1

42 U.S.C. § 1983 ............................................................................................................. 1

42 U.S.C. § 2000e ................................................................................................. passim

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42 U.S.C. § 2000e-2(a)(1) ............................................................................................... 3

42 U.S.C. § 2000e-3(a) ................................................................................................... 3

Rules

Fed. R. App. P. 4(a)(1)(A) ............................................................................................... 1

Fed. R. Civ. P. 56(a) ..................................................................................................... 23

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JURISDICTIONAL STATEMENT
The district court had jurisdiction over the federal questions presented in this

appeal under 28 U.S.C. §§ 1331 & 1343. Those questions arise under 42 U.S.C.

§ 1983 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

John Kluge is an individual and citizen of Indiana. Brownsburg Community

School Corporation is an Indiana community school corporation with its principal

place of business in Brownsburg, Indiana.

This Court has jurisdiction over this appeal under 28 U.S.C. § 1291. The U.S.

District Court for the Southern District of Indiana, the Honorable Jane Magnus-

Stinson presiding, granted summary judgment to the school district on July 12,

2021, and entered final judgment on the same date. Mr. Kluge filed his Notice of

Appeal with the district court on August 11, 2021, within the 30-day period set by

28 U.S.C. § 2107(a) and Fed. R. App. P. 4(a)(1)(A).

There are no remaining proceedings in the district court, no motions that

would toll the time for appeal, and no prior or related appellate proceedings.

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STATEMENT OF THE ISSUES

John Kluge had a sterling record teaching music theory and orchestra at

Brownsburg High School until the school district ordered him to use students’

names and pronouns based on their gender identity once they registered a new

gender identity in the school’s database. Because affirming transgenderism violates

Mr. Kluge’s Christian faith and harms students, he requested a religious accom-

modation under Title VII that consisted of calling all students by their last names—

like a coach—and transferring responsibility for handing out gender-specific

uniforms to another staff member.

The school district granted Mr. Kluge’s request, and his classes ran smoothly

under this compromise arrangement, which treated all students the same and

allowed Mr. Kluge to remain neutral on transgenderism at school. But after a few

teachers and students grumbled about the compromise, the school district decided

no exceptions were allowed beginning the next school year, revoked Mr. Kluge’s

religious accommodation, and forced him to resign, ending his teaching career.

The issues presented on appeal are:

1. Whether the district court erred in granting summary judgment to the

school district on Mr. Kluge’s Title VII religious-accommodation claim.

2. Whether the district court erred in granting summary judgment to the

school district on Mr. Kluge’s Title VII retaliation claim.

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PERTINENT STATUTES AND REGULATIONS

Three Title VII provisions are relevant to this appeal.

42 U.S.C. § 2000e-2(a)(1) makes it unlawful for an employer “to fail or refuse

to hire or to discharge any individual, or otherwise to discriminate against any

individual with respect to his compensation, terms, conditions, or privileges of

employment, because of such individual’s . . . religion.”

42 U.S.C. § 2000e(j) defines “religion” to include “all aspects of religious

observance and practice, as well as belief, unless an employer demonstrates that he

is unable to reasonably accommodate to an employee’s or prospective employee’s

religious observance or practice without undue hardship on the conduct of the

employer’s business.”

42 U.S.C. § 2000e-3(a) makes it unlawful “for an employer to discriminate

against any of his employees . . . because he has opposed any practice made an

unlawful employment practice by this subchapter.”

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INTRODUCTION
John Kluge served as Brownsburg High School’s orchestra teacher for four

years. During that time, he earned a reputation as a fun and engaging teacher who

really cared about his students. And the Brownsburg orchestra performed better

than ever before. But the Brownsburg Community School Corporation did not care

about the quality of Mr. Kluge’s teaching. It was concerned with only one thing:

ensuring he affirmed students who declare transgender identities by using their

preferred names and pronouns. The problem was that Mr. Kluge is a deeply

religious man who believes that following the district’s policy would require him to

tell a dangerous lie to his students and would be perilous to his own soul. So Mr.

Kluge asked for a modest accommodation: calling all students by their last names

only, which would allow him to stay neutral on transgender issues and focus on

teaching music.

The district considered that accommodation reasonable and granted it. But

after a handful of teachers and students grumbled about his religious accommoda-

tion, the district pressured Mr. Kluge to leave the school and—when he refused to

do so willingly—revoked the accommodation, brooked no exceptions to its

transgender-affirmation rules, and forced Mr. Kluge to resign or be terminated. The

voices against tolerance and religious accommodation had won, even though no one

in our society—in school or out—has a right to demand confirmation “of their beliefs

or even their way of life,” Zamecnik v. Indian Prairie School District No. 204, 636

F.3d 874, 876 (7th Cir. 2011), and employers who cow-tow to antireligious

sentiments violate Title VII.

The district court held the opposite, creating a heckler’s veto to Title VII’s

command that an employer reasonably accommodate its employee’s religious

practices unless the employer can prove undue hardship. Religion often evokes
strong feelings, which is why Congress ensured that employers “may not make an

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[employee’s] religious practice, confirmed or otherwise, a factor in employment

decisions.” EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 773 (2015). If

avoiding undue hardship means finding a religious accommodation to which no one

will object, few—if any—accommodations will survive, and Congress’ nondiscrimi-

nation mandate will be eviscerated. That is why the Sixth and Ninth Circuits have

held that third party grumblings do not create undue hardship. This Court should

join them and reverse the district court.

STATEMENT OF THE CASE 1

A. Mr. Kluge’s teaching career

John Kluge earned a bachelor’s degree in music education and a master’s

degree in music theory before the district hired him to serve as a music and

orchestra teacher at Brownsburg High School from 2014 to 2018. Doc. 120-2 at 3.

During that time, Mr. Kluge taught beginning and advanced-placement music

theory classes, conducted the high school’s beginning, intermediate, and advanced

orchestras, assisted with the middle school orchestra’s rehearsals, and periodically

taught piano lessons as well. Doc. 120-3 at 19–20. The school district gave Mr.

Kluge positive written performance evaluations, and he always met or exceeded the

district’s expectations during his four years of employment. Doc. 113-2 at 2.

Mr. Kluge’s students characterized him as a “wonderful teacher” with a

teaching style characterized by “kindness and fairness,” Doc. 52-5 at 2, who really

“cares about his students,” Doc. 52-4 at 2, and made “a positive influence” on their

lives. Doc. 120-18 at 11. They praised “the energy he put into conducting [the]

orchestra and creating a fun classroom environment.” Doc. 52-4 at 1.

1 All district court record cites indicate the docket number and ECF page number.

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Mr. Kluge was not just an effective teacher. On a personal level, he

encouraged students “to make friends and wanted [them] to be included” in

extracurricular orchestra trips. Doc. 52-4 at 2. And he inspired at least one student

to pursue a music-education degree at the college level. Doc. 120-18 at 9. She

considered Mr. Kluge her “most influential” orchestra teacher and admired how his

efforts really “helped the orchestra program excel.” Doc. 120-18 at 9.

Parents, grandparents, and graduates shared this high evaluation of Mr.

Kluge’s ability. They regarded him as an “excellent teacher,” Doc. 120-18 at 9, “who

sparks an interest [in] music and the arts” in students, Doc. 120-18 at 13. Because

Mr. Kluge “truly cares about kids and wants them to be successful,” he was “a huge

influence in” some Brownsburg students’ lives. Doc. 120-18 at 9–10.

B. Mr. Kluge’s faith

John Kluge is more than an inspiring teacher. He is also a man of deep

Christian faith. Mr. Kluge attends religious services every week and occupies

multiple leadership positions at Clearnote Church. In addition to serving as an

ordained elder who exercises spiritual oversight over the church, Mr. Kluge is the

church’s worship leader, head of youth ministries, and director of the church’s

Awana discipleship program for children. Doc. 120-3 at 4–5.

Mr. Kluge’s worldview is shaped by the Bible. Docs. 113-1 at 6; 113-2 at 2;

120-3 at 7. He developed sincerely-held religious beliefs about gender dysphoria as a

result of biblical study before ever teaching at Brownsburg. Doc. 113-2 at 2. Based

on scripture, Mr. Kluge believes that (1) God “created us as a man or a woman,”

Doc. 113-1 at 6; (2) it is wrong “to act or dress in the manner of the opposite sex,

Doc. 113-1 at 7; (3) it would be sinful for him to “encourage[ ] students in

transgenderism,” and (4) causing children to stumble in this way, would subject him
to “special punishment” from God, Doc. 113-1 at 9. Mr. Kluge believes that God

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ordains “[g]enetic sex and sexual identity,” and, like billions of people around the

globe, believes that the two “cannot be separated, and they remain bound together

throughout one’s life.” Doc. 120-3 at 11.

These sincerely-held religious beliefs prevent Mr. Kluge from using first

names and pronouns that conflict with a students’ biological sex “during the

[regular] course of . . . teaching a class” because doing so “encourages gender

dysphoria.” Doc. 120-3 at 9; accord Doc. 120-3 at 12–13. But there might be other

circumstances where Mr. Kluge’s faith would not preclude him from using a

transgender student’s preferred first name, Doc. 120-3 at 8, such as briefly at a

formal awards ceremony. Doc. 120-3 at 33.

C. The district introduces transgender-affirmation rules.

John Kluge was a valued teacher at Brownsburg High School until the

district initiated a series of transgender-affirmation rules in early 2017. It began

with the school district inviting Craig Lee—a government teacher and faculty

advisor to the Equality Alliance Club—and Lori Mehrtens—a school counselor—to

speak at faculty meetings about transgenderism and the importance of affirming

transgender students’ new identities. Doc. 15-3 at 2. Alarmed by their suggestion

that referring “to a transgender student by their biological sex and not us[ing] the

student’s preferred pronoun” would be punishable as “harassment,” Mr. Kluge

drafted a letter to the district (1) expressing concern for transgender students’

health and well-being, (2) describing such a harassment policy’s adverse effects on

Christian students, (3) citing scripture and explaining the policy’s burden on the

“consciences of Christian students and faculty members,” and (4) urging the school

district to take a different course. Docs. 113-1 at 19–25; 120-3 at 11.

Mr. Kluge and three other teachers signed the letter and scheduled a meeting
with the high school principal, Dr. Brett Daghe, at the end of the school year. Docs.

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113-1 at 31; 120-3 at 11. At the meeting, Mr. Kluge read the letter aloud, and then

the teachers discussed their concerns with Principal Daghe. Doc. 120-3 at 12. The

meeting ended when three other teachers—but not Mr. Kluge—agreed that

registering transgender students’ new gender-affirming names in the district’s

student-file database—called PowerSchool—would resolve their concerns. Mr.

Kluge left with the group and then returned minutes later to urge Principal Daghe

to keep using students’ legal names in PowerSchool. Docs. 15-3 at 2–3; 120-3 at 12.

This meeting did not have the impact that Mr. Kluge hoped. Starting with

the 2017-2018 school year, the district allowed transgender students to change their

names listed in PowerSchool with parental permission and a healthcare provider’s

note. Docs. 113-5 at 4; 120-19 at 5. Counselor Mehrtens informed Mr. Kluge and

other teachers of this new rule and told them to “feel free” to use these transgender

students’ new names and pronouns. Docs. 15-3 at 3; 120-3 at 13–14. Because this

was an invitation, not a command, Mr. Kluge understood that he could continue

using students’ legal names in accordance with his religious beliefs. Yet he wanted

to be upfront with the district about his intentions. So, before classes began, Mr.

Kluge told Principal Daghe that he intended to use legal names based on his

religious beliefs and the district’s permissive guidance. Uncertain what to do, the
principal sent Mr. Kluge to his office and sought guidance from the Brownsburg

Superintendent, Dr. James Snapp. Docs. 15-3 at 3; 113-5 at 6; 120-3 at 14.

Later that day, the superintendent and principal told Mr. Kluge—for the first

time—that he was prohibited from using students’ legal names. Doc. 120-3 at 14.

The district required teachers to use the names and pronouns aligned with

transgender students’ gender identities once this information was recorded in

PowerSchool. Doc. 113-5 at 5. When Mr. Kluge expressed his religious objection to

this requirement and cited scripture, Superintendent Snapp became “very angry”
and tried to tell Mr. Kluge that his “beliefs aren’t what’s in the Bible.” Doc. 120-3 at

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19. A theological debate followed in which the superintendent pronounced Mr.

Kluge’s religious beliefs “wrong,” and Mr. Kluge responded with scripture that

supported his beliefs. Doc. 120-3 at 19; accord Doc. 113-6 at 6.

In the end, the superintendent gave Mr. Kluge three options: (1) comply with

the new policy, (2) say he was forced to resign, or (3) be terminated. Docs. 15-3 at 3;

120-3 at 14–15; 120-19 at 6.2 Mr. Kluge’s religious beliefs would not allow him to

follow the policy, and he refused to resign because he did not want to “quit on the

students.” Docs. 120-3 at 14; 120-19 at 6; accord Doc. 15-3 at 3. So the superinten-

dent suspended Mr. Kluge pending termination and told him to go home. Doc. 120-3

at 14–15.

D. Mr. Kluge’s religious accommodation

After John Kluge’s suspension, his pastor, Mr. David Abu-Sara, and

Superintendent Snapp spoke on the phone. The pastor urged Superintendent Snapp

to give Mr. Kluge the weekend to think about matters before terminating his

employment, and the superintendent agreed. Docs. 120-3 at 15–16; 120-19 at 6. Mr.

Kluge was suspended for two days at the end of the week, then met with

Superintendent Snapp and Ms. Jodi Gordon, the district’s Human Resources

Director, the following Monday. Docs. 120-3 at 17; 120-19 at 6.

At this meeting, the superintendent and HR director presented Mr. Kluge

with a form stating: “You are directed to recognize and treat students in a manner

using the identity indicated in PowerSchool.” Below were two check boxes where

Mr. Kluge was expected to indicate whether “Yes” he agreed to follow the district’s

transgender-affirmation rules or “No” he did not. Doc. 15-1 at 1. The superintendent

2Document 120-19 is a communication Mr. Kluge’s counsel sent to the EEOC. At

his deposition, Mr. Kluge testified that this letter gives an accurate factual account
of the events described. Doc. 120-3 at 31–32.

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and HR director gave Mr. Kluge a choice: he could either comply with the district’s

policies and keep his job or refuse and be terminated. Doc. 120-3 at 17.

Mr. Kluge suggested a third option: a religious accommodation under which

he would refer to students in the classroom by their last names—like a coach. Docs.

15-3 at 4; 113-4 at 7; 113-6 at 7; 120-3 at 17; 120-19 at 6. That way, Mr. Kluge

explained, he could avoid the issue altogether, focus on teaching music, and it would

be “as if we’re the orchestra team.” Doc. 120-3 at 17. Mr. Kluge’s ongoing music

students would have noticed little change because he had previously referred to

students by their last name—preceded by honorifics such as “Mr.” or “Ms.”—to

foster a “teaching environment similar to a college level class.” Doc. 52-1 at 3.

The superintendent agreed to this reasonable accommodation after Mr. Kluge

promised to answer any student questions about his last-names-only practice by

referring to the “orchestra team” and a “sports coach” analogy, instead of his

religious beliefs. Doc.120-3 at 17. He understood that Mr. Kluge was making a

“sincere effort to offer up an accommodation that he was [going to] fulfill.” Doc. 113-

6 at 7. Additionally, the Superintendent agreed to designate another employee to

hand out uniforms so that Mr. Kluge would not be “directly responsible for giving a

man’s clothing item to a female student” or vice versa. Doc.120-3 at 17.

On the form that Mr. Kluge had been presented at the meeting’s start, the

HR director wrote and initialed the following edits to memorialize the religious

accommodation the district was giving Mr. Kluge: (1) “We agree that John may use

last name only to address students,” and (2) “In addition, Angie Boyer will be

responsible for distributing unforms to students.” Mr. Kluge then checked the “Yes”

box and signed and dated the form. Docs. 15-1 at 1; 120-3 at 18. Under this

accommodation, both Mr. Kluge and the district understood that he would address

all students by their last names in all his classes, and that he would not use
honorifics, such as “Mr.” or “Ms.” Docs. 120-2 at 3–4; 120-3 at 18.

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E. The accommodation’s unqualified success

Mr. Kluge returned to teaching and referred to students by their last names

without explaining why or drawing attention to himself. Doc. 120-3 at 20. He “was

consistent in using last names only and using it for all students.” Doc. 120-3 at 36;

accord Docs. 52-2 at 3; 52-3 at 2; 52-4 at 2; 52-5 at 2. Only one student asked Mr.

Kluge about this practice, and he responded: “Well, you know, we’re all a team and

a sports coach calls their team members by last name only. I want to foster that

community and we’re all working towards one goal.” Doc. 120-3 at 34. For an entire

semester, there were no classroom disturbances, canceled classes, student protests,

or written complaints related to Mr. Kluge’s use of students’ last names. Doc. 113-2

at 4. He was able to “remain neutral” on transgenderism and “teach [music]

content” without imposing on others’ beliefs or violating his own. Doc. 120-3 at 24;

accord Doc. 120-3 at 8.

Throughout Mr. Kluge’s final schoolyear, his classes “perform[ed] very well”

and students “respond[ed] well to [his] teaching.” Doc. 120-3 at 23. The Brownsburg

orchestras performed “better than ever” in competitions, students excelled on their

AP music-theory exams, several of Mr. Kluge’s students received performance

awards, and student participation in the Brownsburg orchestras’ extracurricular

activities was high. Docs. 113-2 at 4; 120-3 at 23–24.

In addition, no administrator visited Mr. Kluge’s class out of concern that the

accommodation was not working or conducted any other review of Mr. Kluge’s

classroom performance. Accord Doc. 120-14 at 17. To any outside observer, it

appeared that the accommodation had worked well for everyone—the district, Mr.

Kluge, and the students.

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F. After grumblings from teachers and students, the district

pressures Mr. Kluge to resign.
In December 2017, Principal Daghe met with Mr. Kluge to discuss the

religious accommodation. According to Principal Daghe, the problem was that

people were reporting “students [were] uncomfortable in his class . . . and having

discussions about the uncomfortableness.” Doc. 113-5 at 7. Specifically, Principal

Daghe alleged that: (1) transgender students said they felt “dehumanized” (even

though all students were treated exactly the same), (2) other students “feel bad for”

them, (3) Mr. Kluge was the “topic of much discussion in the Equality Alliance Club

meetings,” and (4) some faculty members avoided Mr. Kluge based on his religious

beliefs. Doc. 15-3 at 4. Most of these complaints were made by Mr. Lee, the Equality

Alliance Club’s faculty advisor, who spearheaded the district’s transgender-

affirmation rules, Docs. 120-2 at 4; 120-14 at 4, 16–17, and admitted that on these

issues he was “very biased.” Doc. 120-15 at 3.

Principle Daghe was also unhappy that a parent complained about Mr. Kluge

regarding a concert-hair-color policy that all teachers in the Fine Arts Department

shared. He recognized that Mr. Kluge’s religious beliefs were the only reason that

the parent made the complaint. But that made no difference. Docs. 15-3 at 4–5; 113-

5 at 7; 120-3 at 22. The problem was that accommodating Mr. Kluge’s religious

beliefs “create[ed] tension,” Doc. 120-3 at 23, and Principal Daghe “didn’t like things

being tense and didn’t think things were working out.” Doc. 15-3 at 5. Based on

these limited, biased complaints, Principal Daghe encouraged Mr. Kluge to resign

at the end of the school year. Docs. 15-3 at 5; 113-5 at 7.

This was the first time Mr. Kluge heard any complaints about his use of

students’ last names. Doc. 120-3 at 22. He suspected they were “a heckler’s veto,”

not a genuine concern. Doc. 120-3 at 24–25. Principal Daghe never explained to Mr.
Kluge which students or faculty were troubled by the accommodation, and Mr.

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Kluge had not experienced any “animosity” from students or peers. Doc. 120-3 at 23.

As to students, his “classes were performing very well during that school year.” Doc.

120-3 at 23. And when it came to faculty, Mr. Kluge rarely interacted with teachers

outside the performing arts department, continued eating lunch with his music

colleagues, and understood everyone to be “get[ting] along great.” Doc. 120-3 at 23.

Whereas Principal Daghe saw “persecution and unfair treatment” as a reason

for Mr. Kluge to resign and surrender his teaching career, these things encouraged

Mr. Kluge to stay and “keep on endeavoring to be neutral” on transgenderism at

school. Doc. 120-3 at 24. He viewed being “singled out” or “attacked” by a parent for

applying a universal concert-hair-color policy as “a sign that [he] shouldn’t give up

pursuing neutrality with last names only.” Doc. 120-3 at 24.

In January 2018, Principal Daghe met with Mr. Kluge again because the

Principal had not been “direct enough” in their previous meeting. Principal Daghe

instructed Mr. Kluge “plainly that he really wanted to see [Mr. Kluge] resign at the

end of this school year.” Doc. 15-3 at 5; accord Doc. 120-5 at 9. He promised to give

Mr. Kluge a good reference if he sought employment elsewhere. Doc. 15-3 at 5. Mr.

Kluge found it “distressing to hear” the principal indicate that he wanted Mr. Kluge

to leave the school. Doc. 120-3 at 25. Mr. Kluge responded that Principal Daghe did
not like the “tension and conflict” caused by others’ hostility to his religious beliefs.

Doc. 15-3 at 5. When pressed again to resign, Mr. Kluge indicated that he would not

decide until the district announced its revamped transgender-affirmation rules.

Doc. 15-3 at 5.

G. The district overhauls its transgender-affirmation rules and

proclaims “no exceptions allowed.”
Beginning in August 2017, the district notified faculty that Assistant

Superintendent Kat Jessup would formalize a new set of transgender rules for staff.
Months later, the district asked teachers to write down their question or concerns

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on an index card and indicated that the Assistant Superintendent and the district’s

counsel would answer them. Doc. 15-3 at 4. The district ultimately issued the new

rules in late January 2018 in an 11-page document entitled “Transgender Ques-

tions.” Docs. 15-3 at 5; 113-2 at 4. This document codified the district’s stance that

transgender students must “receive . . . affirmation of their preferred identi[t]y,”

Doc. 120-1 at 4, no matter the religious beliefs of faculty and staff and no matter the

harm to students.

Under the Transgender Questions document, “[s]chool policy prohibit[ed]

discrimination on the basis of sex or gender conformity.” Doc. 15-4 at 1. It

established that transgender students could change their names in the school

database—PowerSchool—“with a letter from the student’s parent(s) and a letter

from a health care professional.” Doc. 15-4 at 1. Once that change was complete,

“the name/gender in PowerSchool should be used,” including “the pronoun

associated with the gender as it appears in PowerSchool.” Doc. 15-4 at 2, 4. But “[i]f

they/them is requested,” the district required teachers to use those pronouns

instead, ostensibly for “transfluid” students who “report feeling more male at times

and at other times more female.” Doc. 15-4 at 4.

The district could punish teachers for “calling the student the wrong
name/pronoun” depending on whether that language was repeated and the teacher’s

“intent.” Doc. 15-4 at 2. Most significant for Mr. Kluge, the district responded to a

question about whether teachers could “use the student’s last name only” by saying

that it had “agreed to this for the 2017-2018 school year, but moving forward it [was

the district’s] expectation the student will be called by the first name listed in

PowerSchool.” Doc. 15-4 at 9 (emphasis added). The district told teachers point

blank that they could not “refuse to call [a transgender student] by his/her preferred

name” but would “need to call students by [the] name in PowerSchool.” Doc. 15-4 at

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9. This name/pronoun affirmation requirement was specifically designed to make

transgender students “feel welcome and accepted.” Doc. 15-4 at 9.

The district left no room for a religious accommodation under Title VII and

recognized as much, announcing: “We know this is a difficult topic for some staff

members, however, when you work in a public school, you sign up to follow the law

and the policies/practices of that organization and that might mean following

practices that are different than your beliefs.” Doc. 15-4 at 10 (emphasis added). The

district praised “teachers who are accepting and supporting of” transgender stu-

dents, while condemning teachers who students did not regard as “accepting or who

continue to use the wrong pronouns or names” by, for instance, calling “students by

their last name” and declining to use “correct pronouns.” Doc. 15-4 at 10.

Concerned by this development, Mr. Kluge sent an email to the superinten-

dent and principal that (1) quoted the Transgender Question document’s language

regarding his last-names only accommodation, (2) pointing out that the agreement

they “signed in July 2017 does not limit itself to the 2017-2018 school year,” and

(3) reflecting his understanding that he “would be allowed to continue to use last-

names-only when addressing students next school year and beyond.” Doc. 120-16 at

2. Mr. Kluge wanted to know whether it was “correct that [he] would be allowed to
continue to use last-names-only when addressing students next school year and

beyond?” Doc. 120-16 at 2.

A meeting between Mr. Kluge, Principal Daghe, and HR Director Gordon

followed in February 2018. These administrators informed Mr. Kluge that

beginning the next school year, he would be treated “just as everybody else,” no

religious-accommodation allowed. Doc. 113-4 at 24. If Mr. Kluge returned to teach

music and refused to use transgender-affirming names and pronouns, the district

would terminate him. Doc. 113-4 at 43. The only reason the administrators gave for

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rescinding Mr. Kluge’s accommodation was that some students were “offended by

being called by their last name.” Doc. 113-4 at 26.

HR Director Gordon clarified that if Mr. Kluge resigned at the end of the

school year, he would still be “paid through the summer,” Doc. 113-4 at 33, the clear

implication being that if the district terminated Mr. Kluge, his regular summer pay

would be canceled. Doc. 15-3 at 2. After claiming that the district was not the “right

environment” for Mr. Kluge, Principal Daghe urged him (again) to resign, promising

that in a search for different employment, Mr. Kluge would have the principal’s

“recommendation” and “word that you will do a good job.” Doc. 113-4 at 41.

Mr. Kluge (1) reiterated that he could not, in good conscience, normally refer

to transgender students using gender-affirming names and pronouns, Doc. 113-4 at

28–32; (2) pointed out that his existing accommodation had “[a] religious reason”

and was based on “a conviction of [his] faith,” Doc. 113-4 at 25; (3) asked how it was

“not religious discrimination” for the district to refuse to accommodate his “religious

convictions in the workplace,” Doc. 113-4 at 25; (4) contended his last-names-only

accommodation was “reasonable,” Doc. 113-4 at 27; and (5) observed that “it seems

illegal . . . to not allow that accommodation” next year. Doc. 113-4 at 43.

HR Director Gordon responded that “calling kids by their last names” is “just
not what we do.” Doc. 113-4 at 27. Likewise, Principal Daghe said that if calling

students by transgender-affirming names and pronouns is “what the policy is, we

will all follow that policy.” Doc. 113-4 at 29. There was “no[ ] question of a religious

accommodation,” Doc. 113-4 at 47, in their minds, because using students’ last

names would be “a policy violation. It’s a [district] policy.” Doc. 113-4 at 43.

Even though Mr. Kluge maintained that rescinding his accommodation was

unlawful and discriminatory under Title VII, Doc. 113-4 at 43, 46, neither HR

Director Gordon nor Principal Daghe triggered the district’s equal-employment-

opportunity policy, which required “a formal investigation.” Doc. 113-4 at 17. HR

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Director Gordon was the official compliance officer for staff. Doc. 113-4 at 14. But

she never considered her duties under the policy triggered. Doc. 113-4 at 10. The

district simply wanted Mr. Kluge to resign or “follow the guidelines.” Doc. 113-4 at

12. To that end, HR Director Gordon insisted on a “commitment” from Mr. Kluge to

follow the transgender-affirmation rules “by the end of the school year,” otherwise

the district would begin the “termination process.” Doc. 113-4 at 45.

HR Director Gordon gave Mr. Kluge another ultimatum in March 2018. He

was required to submit a resignation letter by May 1, 2018. Otherwise, the district

would start termination proceedings. Doc. 15-3 at 6.

H. Mr. Kluge abides by his religious accommodation at an

orchestra awards ceremony.

Near the school year’s end, Mr. Kluge presided at an orchestra ceremony

where students received special merit and participation awards. Doc. 120-3 at 32.

For two reasons, he briefly recognized all students by their first and last names as

listed in the district’s PowerSchool database. Doc. 120-3 at 33. First, Mr. Kluge’s

religious accommodation entitled him to use students’ last names like a coach. But

Mr. Kluge did not believe that a coach would “address students in such an informal

manner at such a formal event as opposed to the classroom setting where teachers

[normally] refer to students by last names.” Doc. 120-3 at 33. It would be

“conspicuous” and “unreasonable” to use last names only at “such a formal event,”

so Mr. Kluge made “a good faith effort to work within the bounds of [his]

accommodation.” Doc. 120-3 at 33; accord Doc. 120-19 at 7.

Second, Mr. Kluge did not believe that he was violating the Bible’s teaching

or promoting transgenderism by using students’ preferred first names at an awards

ceremony. It was “a special event” that did not reflect Mr. Kluge’s “ordinary

behavior,” unlike “regularly . . . using transgender names” in the classroom. Doc.

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120-3 at 33–34. Moreover, his religious beliefs did not simply bar Mr. Kluge from

“regularly calling students by transgender names.” Doc. 120-3 at 33. They also

inspired him to love and seek to “do no harm.” Doc. 120-19 at 7; accord Doc. 15-3 at

6–7. Using students’ preferred names on this formal occasion demonstrated Mr.

Kluge’s respect and concern, and it was an exercise of his “sincerely-held beliefs,”

not “agreement with the [district’s] policy.” Doc. 120-19 at 7.

I. Mr. Kluge submits a conditional resignation, then tries to revoke

it. But the district pushes it through.
Concerned about preserving his usual summer pay because he had a “family

to feed,” Doc. 113-4 at 51,” John Kluge submitted a conditional resignation via email

to HR Director Gordon on April 30, 2018, Doc. 120-17 at 2, unaware that he was

unable to rescind it. Doc. 113-6 at 8. Mr. Kluge explained that he took this course

because the district withdrew his religious accommodation and required him “to

refer to transgender students by their ‘preferred’ name as well as by their ‘preferred’

pronoun that does not match their legal name and sex,” something his “Christian

conscience [would] not allow.” Doc. 120-17 at 2. He requested that HR Director

Gordon “not process this letter nor notify anyone, including any[one in the]

administration, about its contents before May 29, 2018.” Doc. 120-17 at 2. And Ms.

Gordon responded that she would “honor [his] request.” Doc. 120-17 at 2.

On May 25, 2018, Mr. Kluge scheduled a meeting with HR Director Gordon

and Principal Daghe at the central office. But the principle intercepted him before

this meeting and said: “We have everything we need. We don’t need to meet. Go

back to the high school.” Doc. 15-3 at 1. So Mr. Kluge delivered a letter to HR

Director Gordon’s officer instead, which rescinded his conditional resignation and

implored the district to allow him to keep his religious accommodation and his job.

Doc. 15-3 at 1, 7. The district locked Mr. Kluge out of school buildings and online
services, and it posted his job as “vacant” a few hours later. Doc. 113-2 at 7.

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Before the school board accepted his resignation, Mr. Kluge asked for time to

speak at its regular meeting. This request was ignored. Mr. Kluge had just a brief

period during the public-comment section to address board members, which he used

to explain what had happened and to plead with the board to allow him to withdraw

his conditional resignation email and to reinstate him. Docs. 120-3 at 29; 120-18 at

10. But the board never addressed Mr. Kluge’s request and accepted his forced

resignation without comment. Doc. 120-18 at 2, 8, 18.

J. District-court proceedings
Mr. Kluge filed suit against the school district in the U.S. District Court for

the Southern District of Indiana to vindicate his rights under Title VII, demanding

“a trial by jury” on all eligible claims. Doc. 15 at 32. He requested declaratory and

injunctive relief; reinstatement with back pay and benefits; the expurgation of any

punishment from his employee file; nominal, compensatory, and punitive damages;

and prejudgment interest, costs, and attorney fees. Doc. 15 at 31–32.

1. Procedural history
Mr. Kluge’s Amended Complaint alleged three claims under Title VII:

(1) religious discrimination/failure to accommodate, (2) retaliation, and (3) hostile

work environment. Doc. 15 at 17–18. The complaint also raised various claims

under the First and Fourteenth Amendments, and Indiana law. Doc. 15 at 19–31.
The school district moved to dismiss Mr. Kluge’s complaint in its entirety under

Rule 12(b)(6). Doc. 44 at 1.

The district court dismissed the First and Fourteenth Amendment claims, as

well as the state law claims,3 but declined to dismiss two of Mr. Kluge’s three Title

VII claims. Separate Appendix (“SA”) at 050–051. It allowed Mr. Kluge’s Title VII

3Mr. Kluge conceded that his claims against various school officials in their official
capacities, as well as his equal-protection claim, should be dismissed. Doc. 70 at 9.

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claims for (1) religious discrimination/failure to accommodate, and (2) retaliation to

proceed. SA-023–029. After the school district filed its answer, Doc. 71, the parties

engaged in discovery. Mr. Kluge then filed a motion for partial summary judgment

on his religious discrimination/failure to accommodate claim. Doc. 113 at 1–4. The

district countered with a cross-motion for summary judgment on both remaining

claims and asked the court to “enter final judgment in its favor.” Doc. 120 at 3.

2. The district court’s ruling

Without hearing oral argument, the district court granted summary judg-
ment to the school district on Mr. Kluge’s Title VII religious discrimination/failure

to accommodate and retaliation claims, Doc. 159 at 52, and entered final judgment

in the school district’s favor, denying Mr. Kluge’s partial motion for summary

judgment in the process. Required Short Appendix (“RSA”) at 001.

The lower court’s ruling makes three important observations. First, the

school district’s name and pronoun rules were designed to provide transgender

students with “a great deal of support and affirmation.” RSA-002. Second, the

school district “forced [Mr. Kluge] to resign” after he declined to give transgender

students that active encouragement “due to his religious objections to affirming

transgenderism.” RSA-002. Last, Mr. Kluge’s “forced resignation,” including the

district’s “withdrawal of the last names only accommodation and the ultimate end of

his employment,” constitutes an “adverse employment action” under Title VII. RSA-

039.

The school district initially raised several hurdles to Mr. Kluge’s religious

discrimination/failure to accommodate claim, which the court rejected. The court

first assumed that Mr. Kluge’s religious beliefs were sincerely held. RSA-039–040.

The court then rebuffed the district’s claim that referring to students by the name
listed in PowerSchool was merely an “administrative duty” that did not objectively

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violate Mr. Kluge’s beliefs. RSA-041–042. Instead, the court determined that Mr.

Kluge’s “religious beliefs objectively conflict with [the district’s] requirements

concerning how faculty and staff address and refer to transgender students.” RSA-

041–042.

Because “Mr. Kluge ha[d] established a prima facie case of discrimination

based on failure to accommodate,” the district had the burden to prove that it could

not “provide a reasonable accommodation ‘without undue hardship on the conduct of

its business.’” RSA-042 (quoting 42 U.S.C. § 2000e(j)). The court identified “the

central issue [as] whether the last names only accommodation—which presents a

sort of middle ground between the opposing philosophies of Mr. Kluge on the one

hand and [the district] on the other—results in undue hardship.” RSA-044

(emphasis added).

Primarily based on declarations of two transgender students filed in support

of an LGBT group’s failed motion to intervene long after Mr. Kluge was forced to

resign, the court answered “yes,” even though the school district did not have access

to—or rely on—these accounts in revoking Mr. Kluge’s religious accommodation.

RSA-044 (referring to Docs. 22-3; 58-1); accord Doc. 70 at 51 (denying the motion to

intervene). In the court’s view, the district established undue hardship merely by
“present[ing] evidence that two specific students were affected by Mr. Kluge’s

[religious] conduct and that other students and teachers complained.” RSA-046. It

rejected Mr. Kluge’s argument that “emotional discomfort”—standing alone—could

not establish an undue burden; otherwise, a “heckler’s veto” would doom all

religious accommodations under Title VII. RSA-046 n.11. Rather, “the reaction of

[these] ‘hecklers’” was key to the undue-hardship analysis. RSA-046 n.11.

What’s more, said the court, accommodating Mr. Kluge’s religious beliefs was

an undue burden because a transgender student might file a Title IX lawsuit. It was

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immaterial to the district court whether that hypothetical litigation was likely to be

filed or had any likelihood of success. RSA-047–048.

On the retaliation claim, the district court granted summary judgment to the

district based on the assumption that no religious accommodation was required

because others complained about the last-names-only accommodation. RSA-051–

052. The court took the position that Mr. Kluge (1) waived his retaliation claim by

failing to argue that the district’s (facially invalid) reliance on third-party

grumblings was pretextual, and (2) lost on the merits because “nothing in the

record” suggested that these third-party “complaints were fabricated or that

another motive was possible.” RSA-051–052.

SUMMARY OF ARGUMENT
John Kluge established a prima facie case of religious discrimination under

Title VII. No one could reasonably doubt that Mr. Kluge’s practice of not using

transgender names and pronouns in class was religious and sincere. The school

district was undoubtedly aware of Mr. Kluge’s need for a religious accommodation

because he explicitly asked for one. And it is undisputed that the district forced Mr.

Kluge to resign because he could not comply with its transgender-affirmation rules.

Consequently, the district violated Title VII unless it proves that accommo-

dating Mr. Kluge’s religious practice would result in undue hardship. But the only

reason the district withdrew Mr. Kluge’s last-names accommodation and forced him

to resign was that a few teachers and students purportedly complained. As the

Sixth and Ninth Circuits have already ruled, such grumblings do not create undue

hardship as a matter of law. The district’s other justifications fail either because the

district did not rely on them in terminating Mr. Kluge, or because they rest on a

gross misreading of this Court’s precedent.

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John Kluge also preserved and evidenced a Title VII retaliation claim. Mr.

Kluge’s opposition to the district’s transgender-affirmation rules, which permitted

no religious exceptions, and pleas for accommodation of his own religious practices

were all protected activity under Title VII. What’s more, Mr. Kluge suffered

numerous materially adverse actions at the district’s hands, culminating in his

constructive discharge. The causal link between Mr. Kluge’s protected activity and

his forced resignation is obvious: if Mr. Kluge had abandoned his right to a religious

accommodation and submitted to the district’s transgender-affirmation rules, the

district would not have terminated his employment.

This Court should reverse and remand for the district to enter summary

judgment in Mr. Kluge’s favor on the discrimination claim and, at the very least,

submit Mr. Kluge’s retaliation claim to a jury.

ARGUMENT

I. Standard of review
Courts grant summary judgment when (1) the record reveals no genuine

dispute of material fact, and (2) movants show they are entitled to judgment as a

matter of law. Fed. R. Civ. P. 56(a). This Court reviews cross-summary-judgment

rulings de novo, Markel Ins. Co. v. Rau, 954 F.3d 1012, 1016 (7th Cir. 2020), and

gives “no deference [to] the district court.” Scaife v. Racine Cnty., 238 F.3d 906, 907

(7th Cir. 2001). At the summary-judgment stage, because it is cutting off the fact-

finding role of the jury, the Court views the evidence in the light most favorable to

Mr. Kluge and resolves all factual disputes in his favor. McCottrell v. White, 933

F.3d 651, 657–58 (7th Cir. 2019). And the Court declines to “assess the credibility of

witnesses, choose between competing inferences[,] or balance the relative weight of

conflicting evidence, id. at 657, because those decisions are for the trier of fact.
Miller v. Smith, 220 F.3d 491, 495 (7th Cir. 2000).

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II. Mr. Kluge is entitled to summary judgment on his religious

discrimination claim because the school district revoked a reasonable
accommodation without showing undue hardship.
For nearly 50 years, Title VII has required most employers to “reasonably

accommodate . . . an employee’s . . . religious observance or practice” unless it

proves an accommodation would result in “undue hardship.” 42 U.S.C. § 2000e(j).

John Kluge sought and received a reasonable accommodation that allowed him to

teach music, abide by his religious beliefs, and remain neutral on transgenderism at

school. But the district later revoked that accommodation based on complaints by

teachers and students hostile to Mr. Kluge’s religious beliefs. Because the school

district failed to show undue hardship as a matter of law, Mr. Kluge is entitled to

summary judgment on his Title VII discrimination claim.

A. The Supreme Court’s religious-accommodation cases

The Supreme Court has decided only three religious-accommodation cases. In

Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 67 (1977), the Court deter-

mined when employers must accommodate employees who decline to work on their

Sabbath. Based on “the EEOC guidelines” in force at the time, id. at 74, the Court

held that (1) a reduced work-week for the employee, (2) paying other workers

premium overtime, and (3) violating a seniority-based scheduling system were all

undue hardships because they forced the employer “to bear more than a de minimis

cost in order to give [the employee] Saturdays off.” Id. at 84; accord id. at 76.

Nine years later, the Supreme Court decided whether employers must

accommodate employees’ time-off requests for religious observance through paid or

unpaid leave in Ansonia Board of Education v. Philbrook, 479 U.S. 60, 70–71 (1986).

The Court explained that “any [one] reasonable accommodation by the employer is

sufficient to meet its accommodation obligation” under Title VII. Id. at 68.

Normally, unpaid leave is an effective accommodation because it “eliminates the

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conflict between employment requirements and religious practices,” id. at 70, unless

the employer discriminates against religion in awarding paid time off. Id. at 71.

More recently, the Supreme Court clarified in Abercrombie how Title VII

claims for “failure to accommodate a religious practice” work. 575 U.S. at 773. Title

VII “prohibits certain motives.” Ibid. Employers cannot “make an [employee’s]

religious practice, confirmed or otherwise, a factor in employment decisions”

without showing undue hardship. Ibid. If an employee “actually requires an

accommodation of [a] religious practice, and the employer’s desire to avoid the

prospective accommodation is a motivating factor in [an adverse employment]

decision, the employer violates Title VII.” Id. at 773–74 (emphasis added). Under

Title VII, an employer’s “neutral policy” is no excuse for materially adverse action:

Congress gave religious practices “favored treatment” and “require[d] otherwise-

neutral policies to give way to the need for an accommodation.” Id. at 775.

B. This Court’s failure-to-accommodate framework

This Court analyzes failure-to-accommodate claims under the burden-shifting

framework established in EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569, 1575–76

(7th Cir. 1997). Plaintiffs are required to show a prima facie case of discrimination

comprised of three elements. First, plaintiffs must show an observance or practice

conflicting with their employers’ requirements that is “religious in nature” and

“sincerely held.” Id. at 1575. Second, plaintiffs must “call[ ] the religious observance

or practice to [their employers’] attention.” Ibid. Third, plaintiffs must show their

religious observance or practice is why their employers discriminated against them

by, for instance, terminating their employment. Ibid.

Supreme Court precedent does not contradict the first and third factors, but

Abercrombie modified the second. Plaintiffs are no longer required to underscore

their religious devotion for employers: “[A]n employer who acts with the motive of

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avoiding accommodation may violate Title VII even if he has no more than an

unsubstantiated suspicion that accommodation would be needed.” 575 U.S. at 773

(emphasis added). Notified or un-notified, employers’ awareness that a religious

accommodation might be needed is enough.

After plaintiffs establish a prima facie case of discrimination, employers bear

the burden of either (1) “making a reasonable accommodation” or (2) “showing that

any accommodation would result in undue hardship.” Ilona, 108 F.3d at 1576. Title

VII mandates “reasonable” accommodations that “eliminate the conflict between the

employment requirement and the religious practice.” Ibid. Congress’ goal was to

“adjust the requirements of the job so that the employee can remain employed

without giving up the practice of his religion, provided the adjustment would not

work an undue hardship on the employer.” Reed v. Great Lakes Cos., 330 F.3d 931,

934 (7th Cir. 2003). When an employer offers one reasonable accommodation, it

satisfies Title VII. Ilona, 108 F.3d at 1576 (citing Philbrook, 479 U.S. at 68).

Employers that refuse to accommodate religion “must show, as a matter of

law, that any and all accommodations would have imposed an undue hardship.”

Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444, 455 (7th Cir. 2013). This

Court has invoked Hardison’s “de minimis” language as a gloss on the required
“undue hardship” in some cases and not others without clear explanation. Compare

EEOC v. Walmart Stores E., L.P., 992 F.3d 656, 658 (7th Cir. 2021) (quoting

Hardison’s language); Ilona, 108 F.3d at 1576 (same), with Porter v. City of Chicago,

700 F.3d 944, 951 (7th Cir. 2012) (not quoting Hardison’s language); Reed, 330 F.3d

at 934–35 (same). But fortunately, in Adeyeye this Court did explain.

There, the Court observed that “Title VII requires proof, not of minor

inconveniences but of hardship, and ‘undue’ hardship at that. 42 U.S.C. § 2000e(j).”

721 F.3d at 455. Not “any inconvenience or disruption, no matter how small,” will
excuse an employer’s “failure to accommodate” employees’ religious beliefs. Ibid.

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That would take Hardison and its “de minimis cost” language out of context. Id. at

456 (quotation omitted). Summarizing the EEOC’s guidance and the Supreme

Court’s precedent, Adeyeye explained that:

The Equal Employment Opportunity Commission reads the Hardison

language as meaning that regular payment of premium wages . . . for
substitutes would impose an undue hardship, while administrative
costs . . . would not amount to an undue hardship. 29 C.F.R.
§ 1605.2(e)(1). Hardison is most instructive when the particular
situation involves a seniority system or collective bargaining
agreement, as in Hardison itself. Its broad reference to “more than a de
minimis cost” should be understood in this context, especially when we
consider the [Supreme] Court’s strong endorsement of unpaid leave as
a reasonable accommodation for employees’ religious schedules, see,
e.g., Ansonia Board of Education, 479 U.S. at 70, and when we keep in
mind both words in the key phrase of the actual statutory test: ‘undue’
and ‘hardship.’ 721 F.3d at 456.
For decades, this Court has refused to allow employers to twist the undue-

hardship standard into “an exemption from the accommodation requirement

altogether.” Ilona, 108 F.3d at 1577. Rather, it recognizes that “[i]n many cases, a

company must modify its stated policies in practice to reasonably accommodate a

religious” belief. Anderson v. U.S.F. Logistics (IMC), Inc., 274 F.3d 470, 477 (7th

Cir. 2001) (emphasis added). And that premise bars “read[ing] too much into”

Hardison’s language regarding a “de minimis cost” for the reasons Adeyeye

explained.4 721 F.3d at 456 (quoting 432 U.S. at 84).

C. Mr. Kluge established a prima facie case of discrimination.

The district court held correctly that Mr. Kluge established a prima facie case

of religious discrimination. RSA-042.

4Taking an expansive view of Hardison’s “de minimis cost” language is also

unwarranted given the United States’ recent acknowledgment that “‘[m]ore than a
de minimis cost’ is not a reasonable interpretation of the statutory phrase ‘undue
hardship.’” Br. for United States as Amicus Curiae at 8, Patterson v. Walgreen Co.,
No. 18-349 (Dec. 9, 2019), [Link]

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1. Mr. Kluge’s beliefs are religious.

No one questions that Mr. Kluge’s objection to regularly using transgender-

affirming names and pronouns is religious in nature. Time and again, Mr. Kluge

explained that Holy Scripture is what dictates his stance on these issues. Docs. 113-

1 at 6; 113-2 at 2; 120-3 at 7. In fact, Mr. Kluge cited specific verses supporting his

understanding of the Bible’s commands. Docs. 113-1 at 6–9, 22–23; 120-3 at 19. Mr.

Kluge also testified that complying with the district’s transgender-affirmation rules

would cause him personally to sin and subject him to enhanced divine punishment.

Doc. 113-1 at 5–6, 9. Under these facts, Mr. Kluge’s practice of not affirming

transgenderism by using preferred names and pronouns in the classroom is plainly

religious. Adeyeye, 721 F.3d at 448 (religion commonly “involves matters of the

afterlife, spirituality, or the soul”).

Yet Mr. Kluge’s religious beliefs are not enough for the school district. It

posits an additional “objective component,” Doc. 150 at 4, that this Court has never

recognized and which the Supreme Court has rejected. Specifically, the district

claimed that using transgender students’ preferred names and pronouns is “purely

administrative” and does not objectively affirm transgenderism in conflict with Mr.

Kluge’s religious beliefs. Doc. 121 at 24, 28. What the district means is that Mr.

Kluge’s religious beliefs “are mistaken or insubstantial.” Burwell v. Hobby Lobby

Stores, Inc., 573 U.S. 682, 725 (2014). Yet this Court has never attempted to

objectively evaluate Title VII claimants’ religious beliefs, which are inherently

subjective in nature. Nor should it. Courts have “no business” substituting their own

notions on “difficult and important question[s] of religion and moral philosophy,”

such as what promotes transgenderism, for those of religious believers. Id. at 724.

What’s more, Mr. Kluge’s beliefs are objectively reasonable. Teachers’

religious objections to promoting transgenderism are common. E.g., Meriwether v.

Hartop, 992 F.3d 492 (6th Cir. 2021); Vlaming v. W. Point Sch. Bd., 10 F.4th 300

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(4th Cir. 2021); Loudon Cnty. Sch. Bd. v. Cross, No. 210584 (Va. Aug. 30, 2021),

[Link] The use of transgender-affirming names and pronouns, in

particular, has spurred social and judicial debate. E.g., United States v. Varner, 948

F.3d 250 (5th Cir. 2020). These disputes occur because preferred names and

pronouns “convey a powerful message implicating a sensitive topic of public

concern.” Meriwether, 992 F.3d at 508. Using them has the “power to validate . . .

someone’s perceived sex or gender identity.” Id. at 509.

That is why the school district insisted that teachers use preferred names

and pronouns in the first place: “the administration considered it important for

transgender students to receive . . . affirmation of their preferred identi[t]y.” Doc.

120-1 at 4 (emphasis added). Far from having a “purely administrative” purpose,

Doc. 121 at 24, 27–29, the district’s rules were intended to make transgender

students “feel . . . accepted.” Doc. 15-4 at 9 (emphasis added). If Mr. Kluge would not

be “accepting and supporting of” transgender students in this way, Doc. 15-4 at 10

(emphasis added), the district would terminate his employment. Doc. 120-3 at 17.

So the district’s “administrative duty” argument is both legally and factually

wrong. That argument is also contradicted by the district’s pleadings in this case.

For example, the district’s cross-motion for summary judgment proclaims, quite
frankly, that the district’s name and pronoun rules were enacted because

“Brownsburg’s administration considered it important for transgender students to

receive . . . respect and ‘official’ affirmation of their preferred identity.” Doc. 121 at

9 (emphasis added). This goes far beyond any mere administrative purpose.

2. Mr. Kluge’s beliefs are sincere.

No factfinder could reasonably doubt the sincerity of Mr. Kluge’s beliefs. Mr.

Kluge is a devout man who serves as an ordained elder, worship leader, head of
youth ministries, and director of the children’s Awana program at Clearnote

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Church—a protestant, reformed, and evangelical Christian congregation. Doc. 120-3

at 4–5. He believes God ordained “[g]enetic sex and sexual identity,” the two “cannot

be separated, and they remain bound together throughout one’s life.” Doc. 120-3 at

11. Mr. Kluge consistently explained his sincerely held religious beliefs to the school

district. Docs. 15-3 at 3–4, 6; 113-4 at 28–32; 120-3 at 14; 120-17 at 2. And he

withstood substantial pressure from the district to violate those beliefs, Docs. 15-3

at 5; 113-4 at 24, 41; 120-3 at 14–15, even though it cost Mr. Kluge the teaching

career he labored for years (and obtained two degrees) to achieve. Cf. Adeyeye, 721

F.3d at 454.

This Court has identified religious sincerity under far less compelling facts.

E.g., Grayson v. Schuler, 666 F.3d 450, 454–55 (7th Cir. 2012); Ilona, 108 F.3d at

1575. But the district (wrongly) refuses to concede the point based on Mr. Kluge

briefly referring to all students—including transgender students—by the first and

last names listed in PowerSchool during an end-of-the-year awards ceremony. As

Mr. Kluge has explained, (1) he was endeavoring to comply with his legal obligation,

under Title VII, to abide by his religious accommodation and act in a spirit of

“bilateral cooperation” with the district, Philbrook, 479 U.S. at 69, and (2) this

exceptional behavior at a formal ceremony did not violate—and, in fact, furthered—

his sincerely-held religious beliefs. Docs. 15-3 at 6–7; 120-3 at 32–34; 120-19 at 7.

The district never presented contrary evidence or offered any plausible basis

for Mr. Kluge’s actions other than his sincerely held beliefs. Nor does sincerity-

analysis allow intrusive second-guessing. This Court “tread[s] lightly” in this

“sensitive area” and “does not require a deep analysis of [Mr. Kluge’s] conscious

and/or subconscious reasons or motives for holding his beliefs.” Adeyeye, 721 F.3d at

452–53. Instead, it gives “‘great weight’” to claimants’ explanations of their own

convictions. Id. at 448 (quoting United States v. Seeger, 380 U.S. 163, 184 (1965)).

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Mr. Kluge “drew a line” between using transgender names daily in the

classroom and a single time at a formal awards ceremony, Doc. 120-3 at 32–34, and

it is not for the district—or a court—“to say that the line he drew was an unreason-

able one.” Thomas v. Review Bd. of Ind. Emp. Sec. Div., 450 U.S. 707, 715 (1981).

The only question is whether Mr. Kluge’s refusal to use transgender-affirming

names on a day-to-day basis stemmed from “an honest conviction.” Id. at 716. And,

on this record, the authenticity of Mr. Kluge’s beliefs is beyond question.

3. The district knew Mr. Kluge needed accommodation.

The school district knew that Mr. Kluge needed a religious accommodation to

its transgender-affirmation rules. From the district’s first suggestion of those rules

until it forced him to resign, Mr. Kluge (a) brought his religious practice of not using

transgender-affirming names and pronouns in the classroom to the district’s

attention, and (b) made numerous explicit accommodation requests. Docs. 15-3 at 2,

4; 113-1 at 30–31; 113-4 at 7; 113-6 at 7; 120-3 at 17; 120-16 at 2; 120-19 at 6. No

one questions the school district’s awareness of Mr. Kluge’s need for a religious

accommodation, as the district court explained. RSA-024 n.5.

4. The district forced Mr. Kluge to resign based on his

religious practice.
Mr. Kluge’s written performance evaluations were positive, and he always

met or exceeded the school district’s legitimate teacher expectations. Doc. 113-2 at

2. That’s why Principal Daghe promised to give Mr. Kluge a good recommendation if

he voluntarily resigned and sought employment elsewhere. Docs. 15-3 at 5; 113-4 at

41. The district’s only reason for forcing Mr. Kluge to resign later was his

(1) religious objection to complying with the transgender-affirmation rules, and

(2) insistence that Title VII entitled him to a reasonable accommodation despite the

grumblings of third parties hostile to his beliefs. Docs. 15-3 at 4–5; 113-4 at 26–27,
29, 47; 113-5 at 7. In this scenario, no doubt exists that Mr. Kluge’s “‘religious . . .

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practice was the basis for [his] discharge or other discriminatory treatment.’”

Adeyeye, 721 F.3d at 454 (quoting Porter, 700 F.3d at 951).

In sum, Mr. Kluge established a prima facie case of religious discrimination

and that success has important ramifications. The burden shifts to the district to

either reasonably accommodate Mr. Kluge’s religious beliefs or prove that any

accommodation would cause undue hardship. Adeyeye, 721 F.3d at 455.

D. The district withdrew the reasonable accommodation it had

extended to Mr. Kluge without justifying undue hardship.
Mr. Kluge and the school district agreed on an accommodation that allowed

Mr. Kluge to call students by their last names in class and assigned responsibility

for sex-specific uniforms to another staff member Docs. 15-1 at 1; 113-6 at 7; 120-3

at 17. This accommodation was reasonable because it allowed Mr. Kluge to take a

“middle ground” position, RSA-044, and remain neutral on transgenderism at

school. Doc. 120-3 at 8, 24. Mr. Kluge’s classes did not just perform well under the

accommodation, they excelled. Doc. 120-3 at 23–24. Title VII had achieved its

purpose of ensuring Mr. Kluge “would not have to sacrifice [his] job[ ] to observe

[his] religious practices,” Adeyeye, 721 F.3d at 456, with no financial cost to the

school district and little-to-no impact on the district’s efforts to affirm transgender

students.

In other words, this case was a Title-VII success story—until third parties

hostile to Mr. Kluge’s religious beliefs started to complain and scuttled the

accommodation. Docs. 15-3 at 4; 113-4 at 26. Transgender and other LGBT students

grumbled at Equality Alliance meetings about Mr. Kluge’s accommodation. Docs.

15-3 at 4; 120-14 at 7, 13. For instance, the Assistant Superintendent visited one

Equality Alliance meeting and heard about five students object. Doc. 120-1 at 4. The

Equality Alliance’s advisor lobbied against accommodating Mr. Kluge’s beliefs,

citing these complaints, at least one non-LGBT student’s expression of concern, and

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a few teachers outside his department snubbing Mr. Kluge based on his religion.

Docs. 120-2 at 4; 120-14 at 4, 7, 16. A parent targeted Mr. Kluge for a baseless

grievance about a neutral concert-hair-color policy. Docs. 15-3 at 4–5; 113-5 at 7;

120-3 at 22. And the Performing Arts Department heads complained about

“uncomfortableness . . . around him” because Mr. Kluge’s religious accommodation

brought into question how other students in theater, choir, and band should

“behave” towards or “address” their transgender peers. Doc. 113-5 at 8.

For the five reasons discussed below, the district failed to prove undue

hardship, and Mr. Kluge is entitled to summary judgment as a matter of law.

1. Third party grumblings do not create undue hardship.

Employers cannot deny religious accommodations simply because third

parties complain about them. As the Supreme Court explained, “‘[i]f relief under

Title VII can be denied merely because the majority . . ., who have not suffered

discrimination, will be unhappy about it, there will be little hope of correcting the

wrongs to which the Act is directed.’” Franks v. Bowman Transp. Co., 424 U.S. 747,

775 (1976) (quoting United States v. Bethlehem Steel Corp., 446 F.2d 652, 663 (2d

Cir. 1971)). Just so here: if complaints from hostile third parties may scuttle a

religious accommodation, Title VII would rarely—if ever—require one.

Other federal Courts of Appeals have rejected the district’s position for that

reason. The Sixth Circuit held that Title VII required a seal-production company to

accommodate an employee’s sabbath even though doing so evoked “‘considerable

consternation and problems’” at the plant. Cummins v. Parker Seal Co., 516 F.2d

544, 550 (6th Cir. 1975), aff’d by 429 U.S. 65 (1976). It reasoned that “[t]he object-

ions and complaints of fellow employees, in and of themselves, do not constitute

undue hardship in the conduct of an employer’s business.” Ibid. Rather, “[i]f

employees are disgruntled because an employer accommodates its work rules to the

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religious needs of one employee . . . such grumbling must yield to the single

employee’s right to practice his religion.” Ibid. (emphasis added). This was especially

true as coworkers’ complaints “seem[ed] both mild and infrequent” even though the

company “lived with the” accommodation “for over one year.” Id. at 551.

That holding applies with even greater force here. Work scheduling is a more

compelling ground to complain than ideological disagreement. Yet the Sixth Circuit

held that not even grumbles about unequal schedules showed undue hardship. Just

as in Cummins, complaints to the school district here were mild and infrequent, and

the high school functioned well during the year Mr. Kluge’s accommodation was in

place. Accordingly, grumbling must yield to Mr. Kluge’s right to practice his

religion. Cummins, 516 F.2d at 550.

In the Ninth Circuit, too, “proof that employees would grumble about a

particular accommodation is not enough to establish undue hardship.” Anderson v.

Gen. Dynamics Convair Aerospace Div., 589 F.2d 397, 402 (9th Cir. 1978).

Employers cannot veto religious accommodations based on “general sentiment

against” an unpopular group. Ibid. Undue hardship, the Ninth Circuit held,

“requires more than proof of some fellow-worker’s grumbling or unhappiness with a

particular accommodation to a religious belief.” Burns v. S. Pac. Transp. Co., 589

F.2d 403, 407 (9th Cir. 1978). An employer must “show[s], as in Hardison, actual

imposition on co-workers or disruption of the work routine.” Ibid. (emphasis added).

All the district showed here is that Mr. Kluge’s accommodation sparked

modest grumbling based on ideological disagreement. But general sentiment

against traditional Christian beliefs does not prove undue hardship. Unlike in

Hardison, the district failed to show that Mr. Kluge’s accommodation caused any

actual burden on coworkers or disruption of the school routine. Grumbling or

unhappiness with the accommodation the district extended to Mr. Kluge is

insufficient as a matter of law to withdraw the accommodation.

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The Ninth Circuit’s ruling in Peterson v. Hewlett-Packard Co., 358 F.3d 599

(9th Cir. 2004), provides a useful juxtaposition. There, an employee insisted on

posting religious messages on LGBT issues that were “intended to be hurtful” and

spur coworkers to change their views. Id. at 602. Hewlett-Packard tried to reason

with the employee but to no avail. Ibid. The Ninth Circuit held that Hewlett-

Packard established undue hardship because the employee sought to “demean and

harass his coworkers” or “impose his religious beliefs” on them. Id. at 607. But

undue hardship does not result “merely because . . . co-workers [find an employee’s]

conduct irritating or unwelcome. Complete harmony in the workplace is not an

objective of Title VII.” Ibid. (emphasis added). Employers “must tolerate some degree

of . . . discomfort” in accommodating religion. Ibid. (emphasis added).

Unlike the employee in Peterson, Mr. Kluge did not broadcast his religious

views at school or try to force them on anyone. Quite the opposite, he sought to

remain neutral on the issue of students declaring transgender identities, treated all

students the same, and never demeaned or harassed anyone. In fact, Mr. Kluge

agreed to—and did—give a nonreligious reason to the only student who asked about

his use of his students’ last names. Doc. 120-3 at 17, 34. The district forced Mr.

Kluge to resign solely because a few teachers and students found his religious
conduct uncomfortable, irritating, or unwelcome. And those third-party reactions,

as the Ninth Circuit explained, do not create undue hardship. Ibid.

2. Third parties’ complaints were based on the illegitimate

expectation of universal affirmation.
Third party grumblings against Mr. Kluge’s religious accommodation were all

grounded in the illegitimate expectation that students are entitled to require others

to signal agreement with their beliefs. Of course, that may be the district’s aim, but

the district has no power to force religious objectors to comply.

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“[N]o authority supports the proposition that [the district] may require

[teachers, students], or anyone else to refer to gender-dysphoric [students] with

pronouns matching their subjective gender identity.” Varner, 948 F.3d at 254–55.

“In our system, state-operated schools may not be enclaves of totalitarianism.”

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 511 (1969). Teachers

and students must decide for themselves what “ideas and beliefs [are] deserving of

expression, consideration, and adherence. Our political system and cultural life rest

upon this ideal.” Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641 (1994).

That is equally true when public schools deal with issues on which there are

sharply conflicting views. Faced with a school district’s argument that it could ban

speech “tepidly negative” of homosexuality to “protect[ ] the ‘rights’ of [LGBT]

students,” this Court made clear that “people in our society do not have a legal right

to prevent criticism of their beliefs or even their way of life.” Zamecnik, 636 F.3d at

876. And that fundamental principle applies equally here.

Some in the school community may disagree and urge the school district to

enforce uniformity on transgender issues. But the district “cannot, directly or

indirectly, give [their private biases] effect.” Palmore v. Sidoti, 466 U.S. 429, 433

(1984). “[T]he morale of employees [and students] who did not suffer discrimination”
cannot establish undue hardship when “their hopes arise from an illegal system” of

denying reasonable accommodations. Bethlehem Steel, 446 F.2d at 663.

Title VII no more allows ideological opponents to drum Mr. Kluge out of the

Brownsburg school system based on his Christian beliefs than it allows anti-

Semites to expel Jews who wear yarmulkes, or conspiracy theorists to banish

Muslims who pray five times a day. Congress banned religious discrimination in

employment to prevent such results.

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3. No other evidence is relevant because the district did not

consider it in forcing Mr. Kluge to resign.
The district gave just one contemporaneous reason for nixing Mr. Kluge’s

religious accommodation and forcing him to resign: transgenders students were

“offended by being called by their last name.” Doc. 113-4 at 26. As just explained,

that some may be offended by an accommodation does not mean it is an undue

burden on an employer. Moreover, the district cited after-created evidence to prove

its supposed undue burden. None of those justifications are relevant. What matters

in Title VII failure-to-accommodate cases is the employer’s “motivating factor” for

an adverse employment decision. Abercrombie, 575 U.S. at 774. The district “could

not have been motivated by knowledge it did not have and it cannot now claim that”

it was justified in forcing Mr. Kluge to resign on that basis. McKennon v. Nashville

Banner Publ’g Co., 513 U.S. 352, 360 (1995).

Under Title VII, the rule is simple and firm: “evidence . . . gathered after

[Mr. Kluge’s constructive] discharge . . . does not bear on the validity of” his

termination. Venters v. City of Delphi, 123 F.3d 956, 974 (7th Cir. 1997) (citing

McKennon, 513 U.S. at 358–63). What matters is what the district knew “at the time

[Mr. Kluge] was terminated.” Cullen v. Olin Corp., 195 F.3d 317, 324 (7th Cir. 1999)

(discussing McKennon). Other “evidence is totally irrelevant.” Ibid. That includes

most of the testimony on which the district court relied below.

For instance, the court below placed great weight on two affidavits from

transgender students that the school district did not even proffer. RSA-044. They

were filed by an LGBT organization trying to intervene in Mr. Kluge’s case 14–15

months after the district accepted his forced resignation. Docs. 22-3; 58-1. These

affidavits concern events that postdated Mr. Kluge’s forced resignation, such as one

transgender student’s decision to leave orchestra—and ultimately Brownsburg High

School altogether—during the 2018–2019 school year. Doc. 22-3 at 4–5. It was legal

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error for the court to consider this after-created evidence, which the district could

not possibly have known about or relied on in forcing Mr. Kluge’s resignation.

The lower court also credited the district’s claim that accommodating Mr.

Kluge might result in a Title IX lawsuit. RSA-047–048. But the district never cited

litigation concerns when it revoked Mr. Kluge’s accommodation and forced him to

resign. With no contemporary evidence on this point, the district cannot rely on

hypothetical Title IX litigation to prove undue hardship.

4. The district’s hypothetical-litigation defense fails.

The district’s hypothetical-litigation defense also fails on the merits. What

this Court has held is that employers are not required to make accommodations

that would “place [them] on the ‘razor’s edge’ of liability” by, for instance, “exposing

[them] to claims of permitting workplace harassment.” Matthews v. Wal-Mart

Stores, Inc., 417 F. App’x 552, 554 (7th Cir. 2011) (emphasis added). The Matthews

case involved an employee who “‘scream[ed] over [her coworker]’ that God does not

accept gays,” id. at 553, a classic example of workplace harassment.

Mr. Kluge did not berate or harass anyone. He merely wished to remain

neutral on transgenderism at school. Doc. 120-3 at 24. He (1) promised the

Superintendent to use all students’ last names and not explain his religious reasons

for doing so, Doc. 120-3 at 17–18, (2) expressed that “Christians can and should be

able to peacefully work and interact with those who assert a gender identity

different than from their biological sex,” Doc. 15-3 at 7, and (3) lived out both

commitments during his employment. Doc. 120-3 at 36.

Nothing supports the district’s claim that accommodating Mr. Kluge would

place it on the “razor’s edge of liability.” Indeed, on these facts, any lawsuit would

have been frivolous. It is true that transgender students might bring Title IX “sex-
discrimination claims based upon a theory of sex-stereotyping.” Whitaker by

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Whitaker v. Kenosha Unified Sch. Dist. No. 1, 858 F.3d 1034, 1047 (7th Cir. 2017)

(emphasis added). But calling all students (of either sex) by their last names is not

discriminatory or stereotypical: it is equal treatment for everyone.

Undue hardship requires more than fears of hypothetical and groundless

lawsuits by third parties. In holding otherwise, the district court stretched

Matthews beyond recognition and (again) committed legal error. RSA-047–048.

5. Baz v. Walters is inapposite.

At the heart of the district’s undue-hardship defense is an analogy to Baz v.
Walters, 782 F.2d 701 (7th Cir. 1986). Doc. 121 at 35, 38. But this case is nothing

like Baz. Reverend Baz applied for and accepted employment as a Veterans

Administration (“VA”) medical center chaplain. Id. at 703. His job was “not [to]

proselytize” or “impose his ministry on those who do not desire it.” Id. at 705 n.4

(emphasis added). And yet that is exactly what Reverend Baz did. Id. at 703–04.

Instead of serving “as a quiescent, passive listener and cautious counselor,” he acted

“as an active, evangelistic, charismatic preacher.” Id. at 704. Predictably, this Court

held that Title VII did not require the VA to rewrite Reverend Baz’s job description

or adopt his religious “philosophy of the care of psychiatric patients.” Id. at 707.

The school district has never argued that Mr. Kluge’s religious beliefs

precluded him from doing his job. Nor could it—Mr. Kluge’s students excelled, Docs.

113-2 at 4; 120-3 at 23–24, and the district offered to give him a good reference if he

sought other employment. Doc. 15-3 at 5. So Baz is inapposite. To the extent the

district contends that its “philosophy of” public education mandates transgender

affirmation, not neutrality on transgender issues, Doc. 121 at 38, “Title VII requires

otherwise-neutral policies to give way to [Mr. Kluge’s] need for an accommodation.”

Abercrombie, 575 U.S. at 775.

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Because the school district failed to prove undue hardship, its constructive

discharge of Mr. Kluge is unlawful religious discrimination. And the district erred

in refusing to grant summary judgment to Mr. Kluge.

III. The district court erred in rejecting Mr. Kluge’s retaliation claim.
The district court also misjudged Mr. Kluge’s retaliation claim, rejecting it

based on inapplicable legal theories and the mistaken belief that third-party

grumblings are a valid reason for denying religious accommodations. RSA-050–051.

Its analysis is flawed.

For starters, Mr. Kluge did not waive his retaliation claim. In response to the

district’s cross-motion for summary judgment, he argued there was “a genuine issue

of material fact regarding whether [the district] retaliated against him when he

requested the continuation of his accommodation and school administrators coerced

him into submitting a resignation.” Doc. 153 at 36; accord Doc. 153 at 30–32. The

notion that Mr. Kluge abandoned his retaliation claim is baseless.

Next, the lower court faulted Mr. Kluge for not arguing that the district’s

reliance on third-party grumblings was pretextual. RSA-050. But a plaintiff must

only show pretext “[i]f a defendant presents a legitimate, nondiscriminatory basis

for the adverse employment action.” Martino v. W. & S. Fin. Grp., 715 F.3d 195, 202

(7th Cir. 2013). And Mr. Kluge’s whole argument was that the district had no

legitimate basis for revoking his accommodation and forcing him to resign. Doc. 153

at 30.

To avoid summary judgment on his retaliation claim, Mr. Kluge simply had

to “produce evidence from which a jury could conclude: (1) that [he] engaged in a

statutorily protected activity; (2) that [he] suffered a materially adverse action by

[his] employer; and (3) there was a causal link between the two.” Porter, 700 F.3d at
957 (cleaned up). He did all three.

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A. Mr. Kluge engaged in statutorily protected activity.

Title VII forbids retaliation against those opposing a practice the statute

makes unlawful. Porter, 700 F.3d at 956. Because Title VII imposes a “duty of

reasonable accommodation” on employers, Rodriguez v. City of Chicago, 156 F.3d

771, 775 (7th Cir. 1998), Mr. Kluge’s (1) opposition to the district’s transgender-

affirmation rules, which permitted no religious exemptions, and (2) requests for

accommodation of his own beliefs are statutorily protected activity. Cf. Porter, 700

F.3d at 957. The record leaves no doubt that Mr. Kluge had “a sincere and

reasonable belief that [he was] challenging conduct that violates Title VII.” Hunt-

Golliday v. Metro. Water Reclamation Dist. of Greater Chi., 104 F.3d 1004, 1014 (7th

Cir. 1997); accord Doc. 113-4 at 25, 43.

B. Mr. Kluge suffered materially adverse action.

The district repeatedly put Mr. Kluge to the choice of his beliefs or his job.

Docs. 15-3 at 3; 113-4 at 43. After initially granting a religious accommodation, the

district pressured Mr. Kluge to resign because third parties disapproved. Doc. 15-3

at 5. Then it decided “no exceptions allowed,” revoked Mr. Kluge’s accommodation,

and demanded that he either (1) follow the transgender-affirmation rules and

violate his beliefs, (2) resign and keep his summer pay, or (3) face termination and

lose that pay. Doc. 113-4 at 33, 43. From then on, the district ignored Mr. Kluge’s

claims of religious discrimination and its own equal-employment-opportunity policy,

which required a formal investigation. Doc. 113-4 at 10, 14, 17. So Mr. Kluge was

forced to submit a conditional resignation to maintain his summer pay and support

his family. Docs. 15-3 at 1–2; 113-4 at 51. After, the district pushed Mr. Kluge’s

coerced resignation through and ignored his repeated pleas to keep his job. Docs. 15-

3 at 1, 7; 120-3 at 29; 120-18 at 2, 8, 10, 18.

These are materially adverse actions because they might well “dissuade[ ] a
reasonable worker from making or supporting” accommodation requests. Porter, 700

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F.3d at 957 (quotation omitted). Employees aware of the district’s treatment of Mr.

Kluge could not help but be deterred from “complaining to . . . their employer[ ]”

about religious discrimination. Id. at 956 (quotation omitted).

C. A causal link exists between Mr. Kluge’s protected activity and

the district’s adverse actions.
To establish a causal link, Mr. Kluge must show “that the protected activity

and the adverse action were not wholly unrelated.” Hunt-Golliday, 104 F.3d at 1014

(quotation omitted). Here, Mr. Kluge’s opposition to the district’s refusal to grant

religious exceptions to its transgender-affirmation rules, personal accommodation

requests, and constructive discharge (accompanied by other adverse treatment)

were all inextricably intertwined. The district wanted Mr. Kluge to forfeit his

religious-accommodation right in one of two ways: (1) comply with the transgender-

affirmation rules and violate his beliefs, or (2) resign his teaching career and get out

of the way. Doc. 113-4 at 12. When Mr. Kluge refused to take either path

voluntarily, his supervisors subjected him to a “a pattern of criticism and

animosity,” and finally constructively discharged him. Hunt-Golliday, 104 F.3d at

1014; accord supra pp. 8–19.

Indeed, Mr. Kluge’s evidence of causation is so strong that the Court could

direct the entry of summary judgment in his favor on the retaliation claim, as the

school district had the motive and opportunity to “come forward with its evidence.”

Osler Inst., Inc. v. Forde, 333 F.3d 832, 836 (7th Cir. 2003). At the least, Mr. Kluge

was entitled to a jury trial on the retaliation claim. Doc. 153 at 36.

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CONCLUSION
John Kluge respectfully asks this Court to reverse and remand for the district

court to enter summary judgment in his favor on the Title VII discrimination claim,

and either direct the lower court to enter summary judgment for Mr. Kluge on the

Title VII retaliation claim or allow a jury to decide that claim on the merits.

Respectfully submitted,

Dated: October 1, 2021 By:/s/ John J. Bursch

MICHAEL J. CORK JOHN J. BURSCH
5754 N. Delaware Street ALLIANCE DEFENDING FREEDOM
Indianapolis, IN 46220 440 First Street, NW, Suite 600
(317) 517-4217 Washington, DC 20001
cork0@[Link] (616) 450-4235
jbursch@[Link]

RORY T. GRAY
ALLIANCE DEFENDING FREEDOM
1000 Hurricane Shoals Rd. NE
Suite D-1100
Lawrenceville, GA 30043
(770) 339-0774
rgray@[Link]

Attorneys for Plaintiff-Appellant

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 Case: 21-2475 Document: 13 Filed: 10/01/2021 Pages: 112

CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) and Circuit Rule 32 because this brief contains 13,008 words, excluding

the parts of the brief exempted by Fed. R. App. P. 32(f), as determined by the word

counting feature of Microsoft Office 365.

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)

and the type-style requirements of Fed. R. App. P. 32(a)(6) and Circuit Rule 32

because it has been prepared in a proportionally spaced typeface using 12-point

Century Schoolbook.

Dated: October 1, 2021

/s/ John J. Bursch

John J. Bursch
ALLIANCE DEFENDING FREEDOM
440 First Street, NW, Suite 600
Washington, DC 20001
(616) 450-4235
jbursch@[Link]
Attorney for Plaintiff-Appellant

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 Case: 21-2475 Document: 13 Filed: 10/01/2021 Pages: 112

CERTIFICATE OF SERVICE
I hereby certify that on October 1, 2021, I electronically filed the foregoing

brief with the Clerk of the Court for the United States Court of Appeals for the

Seventh Circuit by using the CM/ECF system, which will accomplish service on

counsel for all parties through the Court’s electronic filing system.

/s/ John J. Bursch

John J. Bursch
ALLIANCE DEFENDING FREEDOM
440 First Street, NW, Suite 600
Washington, DC 20001
(616) 450-4235
jbursch@[Link]
Attorney for Plaintiff-Appellant

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 Case: 21-2475 Document: 13 Filed: 10/01/2021 Pages: 112

CIRCUIT RULE 30(d) STATEMENT

Pursuant to Circuit Rule 30(d), I certify that all material required by Circuit

Rule 30(a) and (b) are included in the attached required short appendix and separate

appendix filed concurrently with this brief.

/s/ John J. Bursch

John J. Bursch
ALLIANCE DEFENDING FREEDOM
440 First Street, NW, Suite 600
Washington, DC 20001
(616) 450-4235
jbursch@[Link]
Attorney for Plaintiff-Appellant

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ATTACHED REQUIRED SHORT APPENDIX

District Court Final Judgment entered July 12, 2021 .................................... RSA-001

District Court Summary Judgment Order dated July 12, 2021 ..................... RSA-002

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 Case: 21-2475 Document: 13 Filed: 10/01/2021 Pages: 112

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

JOHN M. KLUGE, )
)
Plaintiff, )
)
vs. ) No. 1:19-cv-2462-JMS-DLP
)
BROWNSBURG COMMUNITY SCHOOL )
CORPORATION, )
)
Defendant. )

FINAL JUDGMENT PURSUANT TO FED. R. CIV. P. 58

For the reasons set forth in the Court's Order entered this day, the Court now enters

FINAL JUDGMENT against Plaintiff and in favor of Defendant, such that Plaintiff shall take

nothing by way of his Complaint.

Date: 7/12/2021

Distribution via ECF only to all counsel of record

RSA-001
 Case: 21-2475 Document: 13 Filed: 10/01/2021 Pages: 112

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

JOHN M. KLUGE, )
)
Plaintiff, )
)
vs. ) No. 1:19-cv-2462-JMS-DLP
)
BROWNSBURG COMMUNITY SCHOOL )
CORPORATION, )
)
Defendant. )

ORDER

What's in a name? William Shakespeare suggested maybe not much, for "that which we

call a rose, by any other name would smell as sweet." 1 But a transgender individual may answer

that question very differently, as being referred to by a name matching one's identity can provide

a great deal of support and affirmation. This case involves the legal ramifications of a public-

school corporation's practical response to that philosophical question.

Plaintiff John Kluge was formerly employed as a teacher by Brownsburg Community

School Corporation ("BCSC"), but was eventually forced to resign after refusing to refer to

transgender students by the names selected by the students, their parents, and their healthcare

providers due to his religious objections to affirming transgenderism. Pursuant to Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., Mr. Kluge asserts two claims

against BCSC related to the end of his employment: (1) discrimination based on failure to

accommodate his religious beliefs; and (2) retaliation. Mr. Kluge has filed a Motion for Partial

Summary Judgment, seeking judgment in his favor on his failure to accommodate claim. [Filing

1
WILLIAM SHAKESPEARE, ROMEO AND JULIET act 2, sc. 2, available at
[Link]
1

RSA-002
 Case: 21-2475 Document: 13 Filed: 10/01/2021 Pages: 112

No. 112.] BCSC has filed a Cross-Motion for Summary Judgment, seeking judgment in its favor

on both claims. [Filing No. 120.] In addition, a group of medical, mental health, and transgender

youth support organizations have filed a Motion for Leave to File Brief of Amici Curiae in support

of BCSC's summary judgment motion. [Filing No. 131.] All three of these motions are ripe for

the Court's consideration.

I.
SUMMARY JUDGMENT STANDARD

A motion for summary judgment asks the Court to find that a trial is unnecessary because

there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment

as a matter of law. See Fed. R. Civ. P. 56(a). As the current version of Rule 56 makes clear,

whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the

asserted fact by citing to particular parts of the record, including depositions, documents, or

affidavits. Fed. R. Civ. P. 56(c)(1)(A). A party can also support a fact by showing that the

materials cited do not establish the absence or presence of a genuine dispute or that the adverse

party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(B).

Affidavits or declarations must be made on personal knowledge, set out facts that would be

admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed. R.

Civ. P. 56(c)(4). Failure to properly support a fact in opposition to a movant's factual assertion

can result in the movant's fact being considered undisputed, and potentially in the grant of

summary judgment. Fed. R. Civ. P. 56(e).

In deciding a motion for summary judgment, the Court need only consider disputed facts

that are material to the decision. A disputed fact is material if it might affect the outcome of the

suit under the governing law. Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir. 2009). In

other words, while there may be facts that are in dispute, summary judgment is appropriate if those

RSA-003
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facts are not outcome determinative. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir.

2005). Fact disputes that are irrelevant to the legal question will not be considered. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

On summary judgment, a party must show the Court what evidence it has that would

convince a trier of fact to accept its version of the events. Johnson v. Cambridge Indus., 325 F.3d

892, 901 (7th Cir. 2003). The moving party is entitled to summary judgment if no reasonable fact-

finder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th

Cir. 2009). The court views the record in the light most favorable to the non-moving party and

draws all reasonable inferences in that party's favor. Darst v. Interstate Brands Corp., 512 F.3d

903, 907 (7th Cir. 2008). It cannot weigh evidence or make credibility determinations on summary

judgment because those tasks are left to the fact-finder. O'Leary v. Accretive Health, Inc., 657

F.3d 625, 630 (7th Cir. 2011). The Court need only consider the cited materials, Fed. R. Civ. P.

56(c)(3), and the Seventh Circuit Court of Appeals has "repeatedly assured the district courts that

they are not required to scour every inch of the record for evidence that is potentially relevant to

the summary judgment motion before them." Johnson, 325 F.3d at 898. Any doubt as to the

existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension

Plan, 614 F.3d 684, 691 (7th Cir. 2010).

"The existence of cross-motions for summary judgment does not, however, imply that there

are no genuine issues of material fact." R.J. Corman Derailment Servs., LLC v. Int'l Union of

Operating Engineers, 335 F.3d 643, 647 (7th Cir. 2003). Specifically, "[p]arties have different

burdens of proof with respect to particular facts; different legal theories will have an effect on

which facts are material; and the process of taking the facts in light most favorable to the non-

RSA-004
 Case: 21-2475 Document: 13 Filed: 10/01/2021 Pages: 112

movant, first for one side and then for the other, may highlight the point that neither side has

enough to prevail" on summary judgment. Id. at 648.

II.
BACKGROUND

A. The Parties

BCSC is a public-school corporation in Brownsburg, Indiana, and is governed by an elected

Board of Trustees ("the Board"). [Filing No. 120-1 at 2.] At all relevant times, Dr. Jim Snapp was

the Superintendent, [Filing No. 120-1 at 3]; Dr. Kathryn Jessup was the Assistant Superintendent,

[Filing No. 120-1 at 2]; Jodi Gordon was the Human Resources Director, [Filing No. 113-4 at 5];

and Phil Utterback was the President of the Board, [Filing No. 113-3 at 5]. Brownsburg High

School ("BHS") is the sole high school within BCSC. [Filing No. 120-2 at 2.] At all relevant

times, Dr. Bret Daghe was the principal of BHS. [Filing No. 120-5 at 4.]

Mr. Kluge was hired by BCSC in August 2014 to serve as a Music and Orchestra Teacher

at BHS. [Filing No. 113-2 at 2; Filing No. 120-2 at 3.] He was employed in that capacity until

the end of the 2017-2018 academic year. [Filing No. 120-2 at 3.] Mr. Kluge taught beginning,

intermediate, and advanced orchestra, beginning music theory, and advanced placement music

theory, and was the only teacher who taught any sections of those classes during his time at BHS.

[Filing No. 120-2 at 3; Filing No. 120-3 at 19-20.] Mr. Kluge also assisted the middle school

orchestra teacher in teaching classes at the middle school. [Filing No. 120-3 at 19-20.]

B. Mr. Kluge's Religious Beliefs

Mr. Kluge identifies as a Christian and is a member of Clearnote Church, which is part of

the Evangel Presbytery. [Filing No. 113-1 at 4.] He serves as a church elder, meaning he is a

member of the board of elders, which "exercise[s] spiritual oversight over the church" and is "part

of the government of [the] church." [Filing No. 120-3 at 3-4.] In addition, Mr. Kluge serves as

RSA-005
 Case: 21-2475 Document: 13 Filed: 10/01/2021 Pages: 112

head of the youth group ministries, head of the Owana Program (a discipleship program for

children), and a worship group leader. [Filing No. 120-3 at 5.]

Mr. Kluge's religious beliefs "are drawn from the Bible," and his "Christian faith governs

the way he thinks about human nature, marriage, gender, sexuality, morality, politics, and social

issues." [Filing No. 15 at 6.] "Mr. Kluge believes that God created mankind as either male or

female, that this gender is fixed in each person from the moment of conception, and that it cannot

be changed, regardless of an individual's feelings or desires." [Filing No. 15 at 6.] He also believes

that "he cannot affirm as true ideas and concepts that he deems untrue and sinful." [Filing No. 15

at 7.] As a result of these principles, Mr. Kluge believes that "it is sinful to promote gender

dysphoria." 2 [Filing No. 15 at 5; Filing No. 120-3 at 5.] In addition, according to Mr. Kluge,

transgenderism "is a boringly old sin that has been repented for thousands of years," and because

being transgender is a sin, it is sinful for him to "encourage[] students in transgenderism." [Filing

No. 113-1 at 8-9; see also Filing No. 120-3 at 10.]

C. BCSC's Policies and Practices Regarding Transgender Students

According to Dr. Jessup, BCSC's Assistant Superintendent, prior to the start of the 2017-

2018 academic year, "the high school community at BCSC began to become more and more aware

of the needs of transgender students," and "[s]everal discussions were held by and between school

leadership at both the high school level and the corporation level about addressing these needs."

[Filing No. 120-1 at 3.] Mr. Kluge and other BCSC staff first became aware of these discussions

2
According to the American Psychiatric Association, "gender dysphoria" is "an acute form of
mental distress stemming from strong feelings of incongruity between one's anatomy and one's
gender identity." Campbell v. Kallas, 936 F.3d 536, 538 (7th Cir. 2019) (citing Am. Psychiatric
Ass’n, Diagnostic & Statistical Manual of Mental Disorders 451 (5th ed. 2013)). Mr. Kluge
disagrees with this definition, and instead defines gender dysphoria to be "what scripture refers to
as effeminacy which is for a man to play the part of a woman or a woman to play the part of a man
and so that would include acting/dressing like the opposite sex." [Filing No. 120-3 at 5-6.]
5

RSA-006
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in January 2017, when administrators invited Craig Lee, a BHS teacher and faculty advisor of the

Equality Alliance Club, to speak about transgenderism at a faculty meeting. [Filing No. 15-3 at 2;

Filing No. 58-2 at 1-2.] At another faculty meeting in February 2017, Mr. Lee and a BHS guidance

counselor, Lori Mehrtens, gave a presentation on what it means to be transgender and how teachers

can encourage and support transgender students. [Filing No. 15-3 at 2.]

BHS Principal Dr. Daghe testified that during the second semester of the 2016-2017

academic year, BHS faculty and staff members approached him seeking direction about how to

address transgender students. [Filing No. 113-5 at 4.] In May 2017, Mr. Kluge and three other

teachers called a meeting with Dr. Daghe, during which they presented a signed letter expressing

their religious objections to transgenderism and other information supporting their position that

BHS should not "promote transgenderism." [Filing No. 113-1 at 19-32; Filing No. 113-5 at 6;

Filing No. 120-3 at 11.] The letter specifically asked that BCSC faculty and staff not be required

to refer to transgender students using their preferred pronouns and that transgender students not be

permitted to use the restrooms and locker rooms of their choice. [Filing No. 113-1 at 30-31.]

In response to these various competing concerns, BCSC implemented a policy ("the Name

Policy"), 3 which took effect in May 2017 and required all staff to address students by the name

3
Mr. Kluge repeatedly emphasizes that the Name Policy was not a formal BCSC policy in that it
was not formally reviewed or adopted by the Board. [E.g., Filing No. 153 at 17]. That appears to
be true. [See Filing No. 113-4 at 6 (Ms. Gordon testifying that "It actually wasn't really a policy.
It was a direction. It was guidelines that we had given to the staff."); Filing No. 113-4 at 6 (Ms.
Gordon acknowledging that, in order to become a policy, an issue must be presented to the Board
for discussion, review, and approval at a formal Board meeting); [Filing No. 113-3 at 8 (Mr.
Utterback testifying that the subject of transgender students changing their names was never
formally addressed by the Board).] However, that distinction is irrelevant given that it is
undisputed that the Name Policy and BCSC's other practices, such as those concerning uniforms
and restrooms—whether formally adopted by the Board or not—were directives that BCSC staff
members were required to follow. The Court uses the term "policy" to refer to the Name Policy
and the other practices colloquially and as a matter of convenience, not to imply that the any of
these matters were formally ratified by the Board.
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that appears in PowerSchool, a database that BCSC uses to record and store student information,

including grades, attendance, and discipline. [Filing No. 113-3 at 6; Filing No. 113-5 at 4; Filing

No. 113-6 at 7.] Transgender students could change their first names in PowerSchool if they

presented a letter from a parent and a letter from a healthcare professional regarding the need for

a name change. [Filing No. 113-5 at 4-5; Filing No. 120-1 at 4-5.] Through the same process,

students could also change their gender marker and the pronouns used to refer to them. [Filing

No. 113-5 at 5.] In addition to the Name Policy, transgender students were permitted to use the

restrooms of their choice and dress according to the gender with which they identified, including

wearing school-related uniforms associated with the gender with which they identified. [Filing

No. 113-5 at 5.] The three other teachers who initially expressed objections to "promot[ing]

transgenderism" accepted the Name Policy, while Mr. Kluge did not. [Filing No. 120-3 at 12.]

BCSC's practices regarding transgender students were based on BCSC's administrators'

ultimate conclusion that "transgender students face significant challenges in the high school

environment, including diminished self-esteem and heightened exposure to bullying" and that

"these challenges threaten transgender students' classroom experience, academic performance, and

overall well-being." [Filing No. 120-1 at 3.] Regarding the Name Policy specifically, Dr. Jessup

explained:

The high school and BCSC leadership thought that this practice furthered two
primary goals. First, the practice provided the high school faculty a straightforward
rule when addressing students; that is, faculty need and should only call students
by the name listed in PowerSchool. Second, it afforded dignity and showed
empathy toward transgender students who were considering or in the process of
gender transition. Stated differently, the administration considered it important for
transgender students to receive, like any other student, respect and affirmation of
their preferred identity, provided they go through the required and reasonable
channels of receiving and providing proof of parental permission and a healthcare
professional's approval.

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[Filing No. 120-1 at 4.] Dr. Jessup further opined that the BCSC and BHS leaders gave

"heightened attention to these issues prior to the start of the 2017-2018 school year because several

transgender students were enrolled as high school freshman for that school year." [Filing No. 120-

1 at 3.]

D. Mr. Kluge's Religious Objections to BCSC Policies and His Initial

Accommodations

In July 2017, Mr. Kluge informed Dr. Daghe that he could not follow the Name Policy

because he had a religious objection to referring to students using names and pronouns

corresponding to the gender with which they identify, rather than the biological sex that they were

assigned at birth. 4 [Filing No. 113-2 at 3; Filing No. 113-5 at 5-6.] Dr. Daghe called a meeting

with Mr. Kluge and Dr. Snapp to discuss the situation. [Filing No. 120-3 at 14-17; Filing No. 120-

5 at 6.] At the meeting, Dr. Daghe gave Mr. Kluge three options: (1) comply with the Name

Policy; (2) resign; or (3) be suspended pending termination. [Filing No. 120-3 at 14.] Mr. Kluge

refused to either follow the Name Policy or resign, so he was suspended. [Filing No. 120-3 at 14-

17.]

4
Mr. Kluge and his counsel often use the terms "transgender names" and "transgender pronouns"
to refer to the first names and pronouns chosen by transgender students and affirmed by their
parents to reflect the gender with which they identify. [See Filing No. 120-3 at 15 (Mr. Kluge
testifying that he uses "transgender names" to mean "[t]he opposite sex first name that [the
transgender students] had switched to that was not their legal name").] They use terms like "legal
names" to refer to the names and gender that the students were assigned at birth. [See Filing No.
120-3 (stating that "legal names" refers to "[t]he name that's on their birth certificate, the one that
was stored on their birth records").] The Court finds this terminology imprecise and often
confusing. People can be transgender, but names and pronouns cannot. Relatedly, transgender
individuals can and often do change their "legal" names and gender markers to reflect the gender
with which they identify. Accordingly, the Court will refer to the names and pronouns chosen by
transgender students to reflect the gender with which they identify as "preferred" names and
pronouns.
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The following week, on July 31, 2017, another meeting was held between Dr. Snapp, Ms.

Gordon, and Mr. Kluge. [Filing No. 120-3 at 17.] At the July 31 meeting, Mr. Kluge proposed

that he be permitted to address all students by their last names only, similar to a sports coach ("the

last names only accommodation"), and the administrators agreed. [Filing No. 113-2 at 3-4; Filing

No. 113-6 at 7; Filing No. 120-3 at 17.] Mr. Kluge signed a document that stated the following,

including a handwritten notation initialed by Ms. Gordon:

You are directed to recognize and treat students in a manner using the identity
indicated in PowerSchool. This directive is based on the status of a current court
decision applicable to Indiana.
We agree that John may use last name only to address students.
You are also directed not to attempt to counsel or advise students on his/her lifestyle
choices.

[Filing No. 15-1 at 1.] Another handwritten note, also initialed by Ms. Gordon, further stated: "In

addition, Angie Boyer will be responsible for distributing uniforms to students." [Filing No. 15-1

at 1.]

Mr. Kluge understood the last names only accommodation to mean that he would refer to

all students—not just transgender students—by their last names only, not use any honorifics such

as "Mr." or "Ms." to refer to any student, and if any student were to directly ask why he used last

names only, he would respond that he views the orchestra class like a sports team and was trying

to foster a sense of community. [Filing No. 120-3 at 18.] He also understood that he would not

be required to distribute gender-specific orchestra uniforms to students. [Filing No. 120-3 at 17-

18.]

E. BCSC Receives Complaints About Mr. Kluge's Use of Last Names Only

Dr. Daghe "first learned of concerns with Mr. Kluge and how he was addressing students

in class" in an August 29, 2017 email from another teacher, Craig Lee. [Filing No. 120-2 at 4.] In

addition to teaching classes at BHS, Mr. Lee was one of three teachers on the BHS Faculty

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Advisory Committee and the faculty advisor of the Equality Alliance, a student club that meets on

a weekly basis to discuss issues that impact the LGBTQ community and provides a safe space for

students who identify as LGBTQ. [Filing No. 120-2 at 4; Filing No. 120-14 at 6.] In relevant part,

the email stated:

I wanted to follow up regarding the powerschool/students changed name discussion

at the Faculty Advisory [meeting] as some issue have arisen in the last few days
that need to be addressed. . . . There is a student who has had their name changed
in powerschool. They are a freshman who this teacher knew from 8th grade. The
teacher refuses to call the student by their new name. I see this is a serious issue
and the student/parents are not exactly happy about it.

[Filing No. 120-15 at 2.] Although the email did not mention Mr. Kluge by name, Dr. Daghe

believed and was later able to confirm that the teacher discussed in the email was Mr. Kluge.

[Filing No. 12-2 at 4.]

Regarding the Equality Alliance, between 12 and 40 students generally attend each

meeting, and in 2019 there were at least four transgender students who regularly attended

meetings. [Filing No. 120-14 at 6-7; see also Filing No. 58-1 at 2 (estimating that there are

"approximately five to ten transgender students currently in the Equality Alliance").] Aidyn Sucec

and Sam Willis were two transgender students who regularly attended Equality Alliance meetings

during the relevant time. [Filing No. 120-14 at 7.] According to Mr. Lee, both Aidyn and Sam

discussed during Equality Alliance meetings how Mr. Kluge was referring to them by their last

names only, and they found that practice to be insulting and disrespectful. [Filing No. 120-14 at

7.] Mr. Lee testified that: "It was clearly visible the emotional distress and the harm that was being

caused towards them. It was very, very clear, and, so, that was clear for everyone to see but that

is also what they described as well." [Filing No. 120-14 at 7-8; see also Filing No. 120-14 at 8

("Q: Was it your interpretation that Aidyn and Sam . . . felt as if they were being discriminated

against by Mr. Kluge? A: I wouldn't describe it so much as an interpretation. It was just very, very

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clear at the meetings to see how much emotional harm was being caused towards Sam and Aidyn.

It was clear for everyone at the meetings just to see how much of an impact it was having on them.

So, when I say like I wouldn't call it an interpretation, I mean, it was so clearly visible that I don't

feel like there was anything to necessarily interpret.").]

In his declaration, Mr. Lee stated the following:

During Equality Alliance meetings, we have a policy of not using names

when discussing offensive or insensitive behavior of other students and faculty.
During the 2017-2018 school year, I heard students discuss how they were being
treated "in orchestra class," or "by the orchestra teacher." I understood these to be
references to John Kluge, the orchestra teacher at [BHS].
Mr. Kluge's behavior was a frequent topic of conversation during Equality
Alliance meetings. Students in Mr. Kluge's class said that they found not being
called by their first names to be insulting and disrespectful. Transgender students
felt strongly that they wanted others to acknowledge their corrected names, and Mr.
Kluge's refusal to do so hurt them. These students also felt like it was their presence
that caused Mr. Kluge's behavior, which made them feel isolated and targeted. I
relayed the students' concerns to the principal of [BHS] and the assistant
superintendent of [BCSC].
Multiple times, Equality Alliance members mentioned that Mr. Kluge
would occasionally "slip-up," and use first names or gendered honorifics (e.g.,
"Mr." or "Miss") rather than last names. Some students also expressed that they felt
that Mr. Kluge avoided acknowledging transgender students who raised their hands
in class.
Mr. Kluge's behavior was also the subject of discussion outside of the
Equality Alliance. One student who was not a member of the Equality Alliance, but
was in Mr. Kluge's orchestra class, approached me to tell me that Mr. Kluge's use
of last names made him feel incredibly uncomfortable, even though he did not
identify as LGBTQ. The student said that he found Mr. Kluge's use of last names
very awkward because he was fairly certain that all the students knew why Mr.
Kluge had switched to using last names, and that it made the transgender students
in Mr. Kluge's orchestra class stand out. This student told me that he felt bad for
his transgender classmates. He also mentioned that there were other students who
felt this way as well.

[Filing No. 58-2 at 2-3.]

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Dr. Jessup confirmed that Mr. Kluge's use of last names only was a topic of discussion at

Equality Alliance meetings, stating:

I attended a meeting of the [BHS] Equality Alliance Club in Fall 2017. The purpose
for my attending that meeting was concerns that had been shared from counselors
of students feeling uncomfortable. Approximately 40 students attended this
meeting. During the meeting, approximately four or five students complained
specifically about a teacher using last names only to address students and, in my
view, the other students in attendance appeared to agree with these complaints.
While the students did not identify John Kluge by name in making these
complaints, it was certainly implied that he was the teacher in question, and I had
no doubt that it was him they were speaking of since he was the only teacher
employed by BCSC who had been permitted the accommodation of using last
names only instead of using the names stated in PowerSchool.

[Filing No. 120-1 at 4.]

Mr. Lee also testified that three other teachers—Jason Gill, Melinda Lawrie, and Justin

Bretz—approached him during the 2017-2018 school year with concerns that Mr. Kluge's use of

last names only was causing harm to students. [Filing No. 120-14 at 16-17.] In addition, the

Faculty Advisory Committee met with Dr. Daghe approximately twice per month, and during those

meetings, "Mr. Lee continued to relate to [Dr. Daghe] the complaints and concerns he was hearing,

primarily in Equality Alliance Club meetings, . . . about Mr. Kluge's use of last-names-only with

students." [Filing No. 120-2 at 4.] Dr. Daghe testified that in addition to receiving information

from Mr. Lee, he received complaints from students and teachers, including teachers Tracy

Runyon and Melissa Stainbrook, regarding Mr. Kluge referring to his students by last name only.

[Filing No. 113-5 at 8-9; see also Filing No. 113-4 at 9 (Ms. Gordon testifying that she "was made

aware that there had been complaints made to Dr. Daghe from students and staff that Mr. Kluge

wasn't following th[e] guidelines that he had agreed to at the start of the year").]

Aidyn Sucec was a transgender student in Mr. Kluge's orchestra class during the 2017-

2018 academic year. [Filing No. 22-3 at 1.] Aidyn submitted a declaration in which he stated that

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after coming out as transgender, "[b]eing addressed and recognized as Aidyn was critical to helping

alleviate [his] gender dysphoria," and his "emotional and mental health significantly improved

once his family and friends began to recognize [him] as who [he is]." [Filing No. 22-3 at 3.]

Pursuant to the Name Policy, Aidyn's mother and his therapist submitted letters requesting that his

name and gender be updated in PowerSchool. [Filing No. 22-3 at 3.] According to Aidyn, Mr.

Kluge referred to him by last name only or avoided referring to him by any name, instead simply

nodding or waving in Aidyn's direction. [Filing No. 22-3 at 4.] However, Aidyn states that Mr.

Kluge would sometimes refer to other students using the honorifics "Mr." or "Ms.," or by their

first names. [Filing No. 22-3 at 4.] Aidyn believes that Mr. Kluge "avoided" him and other

transgender students, and states:

Mr. Kluge's behavior made me feel alienated, upset, and dehumanized. It made me
dread going to orchestra class each day, and I felt uncomfortable every time I had
to talk to him one-on-one. In addition, Mr. Kluge's behavior was noticeable to other
students in the class. At one point, my stand partner asked me why Mr. Kluge
wouldn't just say my name. I felt forced to tell him that it was because I'm
transgender. . . . By the end of the first semester, in December of 2017, I told my
mother that I did not want to continue taking orchestra during my sophomore year.

[Filing No. 22-3 at 4.] Aidyn explains that "[t]he controversy around Mr. Kluge's resignation

during the summer of 2018 is why [he] no longer attend[s] Brownsburg High School." [Filing No.

22-3 at 4.] Several students made negative and derogatory remarks to Aidyn, suggesting that he

had been responsible for Mr. Kluge leaving the school, and "[t]hese incidents, in combination with

[his] ongoing health struggles, made [him] feel that [he] could not return to school" after August

2018. [Filing No. 22-3 at 4-5.]

Sam Willis was another transgender student in one of Mr. Kluge's orchestra classes during

the 2017-2018 academic year. [Filing No. 58-1 at 2.] Prior to the start of that year, he decided to

publicly transition and use the name "Samuel" or "Sam" and masculine pronouns going forward.

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[Filing No. 58-1 at 2.] Although Sam's parents emailed the school counselor and Mr. Kluge

directly to notify them of this change, Sam did not initially change his information in PowerSchool,

because he was not aware of the Name Policy permitting him to do so. [Filing No. 58-1 at 2-3.]

According to Sam, before he changed his information in PowerSchool, Mr. Kluge referred to him

on several occasions as "Miss Willis," which led to confusion among other students and was "very

upsetting" to Sam. [Filing No. 58-1 at 2-3.] Once Sam changed his first name and gender marker

in PowerSchool, however, Mr. Kluge stopped referring to him as "Miss Willis," and Sam was

permitted to wear the boys' tuxedo uniform for the fall orchestra concert. [Filing No. 58-1 at 3.]

Sam states that Mr. Kluge generally used last names only to refer to students, but would

occasionally use gendered honorifics or gendered pronouns with non-transgender students. [Filing

No. 58-1 at 3.] Sam opines that "Mr. Kluge's use of last names in class made the classroom

environment very awkward," and "[m]ost of the students knew why Mr. Kluge had switched to

using last names, which contributed to the awkwardness and [Sam's] sense that [he] was being

targeted because of [his] transgender identity." [Filing No. 58-1 at 3-4.] Sam states that Mr.

Kluge's actions upset him and his family, and exposed him and other transgender students to

"widespread public scrutiny." [Filing No. 58-1 at 5.] His declaration ends with the following

statement: "I truly believe that if everyone in my life had refused, like Mr. Kluge, to use my

corrected name, I would not be here today." [Filing No. 58-1 at 5.]

Mr. Kluge expressly disputes the allegations in Aidyn's declaration and the other

allegations that he did not strictly comply with the last names only accommodation. [See Filing

No. 52-1.] Natalie Gain, a teacher who led private music lessons for students during the school

day, submitted a declaration stating that she never heard Mr. Kluge use gendered language in the

classroom and "only heard him use last names with the students." [Filing No. 52-2 at 3.] She

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further stated that she "never heard any of the students discussing the . . . use of last names" and

"as far as [she] could tell, Mr. Kluge's accommodation was not common knowledge" among

students. [Filing No. 52-2 at 3.] Three students who were in Mr. Kluge's orchestra class during

the 2017-2018 school year also submitted declarations stating that they never heard Mr. Kluge

used gendered language, that they observed him using last names only to refer to all students, and

that they did not witness him treating transgender students differently than other students. [Filing

No. 52-3; Filing No. 52-4; Filing No. 52-5.]

Dr. Daghe continued to hear complaints about Mr. Kluge throughout the fall 2017

semester, but was hopeful that the issue would resolve itself. [Filing No. 120-1 at 4.] It was not

until December 2017 that Dr. Daghe determined it was appropriate to address these issues with

Mr. Kluge directly. [Filing No. 120-2 at 4.] Mr. Kluge testified that he was not aware of any

complaints until December 2017, and when Mr. Daghe informed him that complaints had been

made, Dr. Daghe did not provide any specific information or disclose the names of people who

had allegedly complained. [Filing No. 120-3 at 21-23.] Mr. Kluge further testified that he did not

personally witness or experience any tension with his students or other faculty members. [Filing

No. 120-3 at 23-24.]

F. Mr. Kluge's Discussions with Administration and Ultimate Resignation

On December 13, 2017, Mr. Kluge met with Dr. Daghe. [Filing No. 113-2 at 4; Filing No.

120-3 at 22.] Mr. Kluge's account of this meeting, in relevant part is as follows:

[Dr.] Daghe scheduled a meeting with me to ask me how the year was going and to
tell me that my last-name-only Accommodation was creating tension in the students
and faculty. He said the transgender students reported feeling "dehumanized" by
my calling all students last-name-only. He said that the transgender students'
friends feel bad for the transgender students when I call the transgender students,
along with everyone else, by their last-name-only. He said that I am a topic of
much discussion in the Equality Alliance Club meetings. He said that a number of

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faculty avoid me and don't hang out with me or include me as much because of my
stance on the issue.
***
I explained to [Dr.] Daghe that this persecution and unfair treatment I was
undergoing was a sign that my faith as witnessed by my using last-names-only to
remain neutral was not coming back void, but was being effective. He didn't seem
to understand why I was encouraged. He told me he didn't like things being tense
and didn't think things were working out. He said he thought it might be good for
me to resign at the end of the year. I told [Dr.] Daghe that I was now encouraged
all the more to stay.

[Filing No. 15-3 at 4-5.] Mr. Kluge later testified that although Dr. Daghe stated during the

meeting that the use of last names only was "creating complaints among many students," he would

not provide the names of the students who complained. [Filing No. 120-3 at 23.] Mr. Kluge

further testified that he did not witness any tension or experience any animosity from students or

other faculty, and that his students were performing better than ever in their competitions,

receiving high scores on their AP exams, and participating voluntarily in extra programs. [Filing

No. 120-3 at 23-24.]

On January 17, 2018, Dr. Daghe scheduled another meeting with Mr. Kluge, because he

"didn't think he was direct enough in [the] December 13 meeting." [Filing No. 15-3 at 5.] At the

January 17 meeting, Dr. Daghe expressed that, because of complaints about the use of last names

only, Mr. Kluge should resign at the end of the school year. [Filing No. 15-3 at 5; Filing No. 120-

3 at 25.] Dr. Daghe offered to write Mr. Kluge letters of recommendation to help him find a new

job. [Filing No. 15-3 at 5.]

At the BHS faculty meeting on January 22, 2018, Dr. Jessup presented the faculty with a

document titled "Transgender Questions." [Filing No. 15-3 at 5.] The document contained a series

of questions and answers concerning BCSC policies regarding transgender students and how

faculty and staff should handle matters related to transgender students. [See Filing No. 15-4.] In

addition to reiterating that the staff and faculty should address students by the names and genders

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listed in PowerSchool, [Filing No. 15-4 at 6; Filing No. 15-4 at 9], the document contained the

following relevant questions and answers:

Are we allowed to use the student's last name only? We have agreed to this for
the 2017-2018 school year, but moving forward it is our expectation the student
will be called by the first name listed in PowerSchool.
***
How do teachers break from their personal biases and beliefs so that we can
best serve our students? We know this is a difficult topic for some staff members,
however, when you work in a public school, you sign up to follow the law and the
policies/practices of that organization and that might mean following practices that
are different than your beliefs.

What feedback and information has been received from transgender students?
They appreciate teachers who are accepting and supporting of them. They feel
dehumanized by teachers they perceive as not being accepting or who continue to
use the wrong pronouns or names. Non-transgender students in classrooms with
transgender students have stated they feel uncomfortable in classrooms where
teachers are not accepting. For example, teachers that call students by their last
name, don't use correct pronouns, don't speak to the student or acknowledge them,
etc.

[Filing No. 15-4 at 9-10 (numbering omitted).]

Following the faculty meeting, Mr. Kluge sent an email to Dr. Snapp and Dr. Daghe,

referring to the "Transgender Questions" document and asking whether he was correct in believing

that he would continue to be permitted to follow the last names only accommodation after the

2017-2018 school year. [Filing No. 120-16 at 2.] In response to the email, Ms. Gordon and Dr.

Daghe scheduled a meeting with Mr. Kluge to take place on February 6, 2018. [Filing No. 15-3

at 6.]

Mr. Kluge recorded audio of the February 6 meeting. [Filing No. 113-4 at 20-55; Filing

No. 120-3 at 25.] During the meeting, Mr. Kluge was informed that he would not be permitted to

continue using last names only after the 2017-2018 school year. [Filing No. 113-4 at 24.] Ms.

Gordon stated that employers are not obligated to accommodate all of their employees' religious

beliefs, but instead need only provide reasonable accommodations, and the last names only

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accommodation was not reasonable. [Filing No. 113-4 at 27.] Mr. Daghe agreed. [See Filing No.

113-4 at 28 ("Not when it's detrimental to kids it's not reasonable.").] Ms. Gordon also discussed

how Mr. Kluge's pay and other logistical matters would be handled, depending on whether he

finished the current school year or resigned mid-year. [Filing No. 113-4 at 33-35.] Regarding

"processing" of a resignation, Ms. Gordon explained the following to Mr. Kluge:

[S]ometimes people are very sensitive about letting their students know[] or even
their colleagues knowing . . . .
***
If someone – I've had one for a year now, um, that we – someone submitted a
resignation or retirement letter and asked "I'd rather you just hold onto this. I'm not
– I don't want it communicated. I'd rather, you know, it just wait until the school
year is over and then you process it." We honor requests like that.
***
How long we hold that can hold us up a little bit on being able to search for a
replacement. And obviously a replacement for your position . . . is not going to be
an easy one. So, you know, if that were to happen, it kind of depends on the
position.
***
So while we like to honor those, we also like to – to talk about, like, okay, a
reasonable amount of time for us to be able to – in order to be able to find – put a –
get a posting out and do a good search for someone.

[Filing No. 113-4 at 36-37.] According to Mr. Kluge, this explanation from Ms. Gordon led him

to believe that he was entitled to submit a "conditional resignation." [See Filing No. 120-3 at 26

("[Dr. Daghe and Ms. Gordon] said the option was I could give Jodi a conditional resignation that

wouldn't be processed until a date I specified, that she had done that in the past, that she had held

onto resignations and not processed them before and she would honor any such requests.").]

In March 2018, Ms. Gordon scheduled another meeting with Mr. Kluge. [Filing No. 15-3

at 6; Filing No. 113-2 at 6.] At that meeting, she informed Mr. Kluge that he could either follow

the Name Policy and continue his employment, resign, or be terminated. [Filing No. 113-2 at 6.]

She told him that, if he intended to resign, he would need to submit his resignation to her by May

1, 2018, otherwise the termination process would begin on that date. [Filing No. 15-3 at 6.]

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On April 30, 2018, Mr. Kluge sent an email to Ms. Gordon with the subject "Request."

[Filing No. 15-2 at 1.] The email stated:

I'm writing you to formally resign from my position as a teacher, effective at the
end of the 2017-2018 school year when my contract is finished, i.e., early August
2018.

I'm resigning my position because [BCSC] has directed its employees to call
transgender students by a name and sex not matching their legal name and sex.
BCSC has directed employees to call these students by a name that encourages the
destructive lifestyle and psychological disorder known as gender dysphoria. BCSC
has allowed me the accommodation of referring to students by last name only
starting in August 2017 so I could maintain a "neutral" position on the issue.

Per our conversation on 3/15/18, [BCSC] is no longer allowing this

accommodation. BCSC will require me to refer to transgender students by their
"preferred" name as well as by their "preferred" pronoun that does not match their
legal name and sex. BCSC will require this beginning in the 2018-2019 school
year. Because my Christian conscience does not allow me to call transgender
students by their "preferred" name and pronoun, you have said I am required to
send you a resignation letter by May 1, 2018 or I will be terminated at that time.

Please do not process this letter nor notify anyone, including any administration,
about its contents before May 29, 2018. Please email me to acknowledge that you
have received this message and that you will grant this request.

[Filing No. 15-2 at 1.]

On the same day, Ms. Gordon replied to Mr. Kluge's email with the following:

I appreciate hearing from you.

I will honor your request and not process this letter or share with the BHS
administration until May 29.

Let me know if you have any questions at all.

[Filing No. 15-2 at 1.]

Ms. Gordon believed that she was honoring Mr. Kluge's request not to "process" his

resignation before May 29 by not presenting the resignation to the Board or sharing it with his

colleagues and students until after that date. [Filing No. 113-4 at 12.] According to Ms. Gordon,

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submitting a resignation to her is equivalent to submitting a resignation to the superintendent, and

the only permissible condition for an employee to include in a resignation is the end date of

employment. [Filing No. 113-4 at 11-12; Filing No. 113-6 at 6.] However, in his deposition, Mr.

Kluge characterized his resignation as a "conditional resignation, the condition being I could take

it off [Ms. Gordon's] desk before May 29." [Filing No. 120-3 at 27.]

Relevant to the issue of resignation, BCSC's Bylaws provide that:

Pursuant to State law, following submission of a resignation to the Superintendent,

the employee may not withdraw or otherwise rescind that resignation. . . . The
Superintendent shall inform the Board of the submission of that resignation at its
next meeting. The Board may choose to accept that resignation, deny that
resignation or take any other appropriate action relating to the termination,
suspension or cancellation or employment of the person submitting the resignation.
A resignation, once submitted, may not then be rescinded unless the Board agrees.

[Filing No. 113-6 at 8.] The Bylaws cite Indiana Code § 5-8-4-1, which in turn provides that:

Whenever any officer, servant or employee of . . . any . . . school corporation[] . . .

shall submit in writing his or her resignation, whether to take effect at once, when
accepted, or at some future fixed date, with the proper officer, person or persons or
authority of government to receive such resignation, the person so submitting such
written resignation shall have no right to withdraw, rescind, annul or amend such
resignation without the consent of the officer, person or persons or authority of
government having power by law to fill such vacancy.

In May 2018, Mr. Kluge attended an orchestra awards ceremony. [Filing No. 120-3 at 32.]

At the ceremony, he addressed all students by their first and last names, including transgender

students, whom Mr. Kluge addressed by their preferred first names. [Filing No. 120-3 at 33.] Mr.

Kluge explained that he used first and last names because "it would have been unreasonable and

conspicuous" to refer to students by last names only at a formal event. [Filing No. 120-3 at 33.]

Mr. Kluge also opined that referring to students by last name only at the awards ceremony would

be inconsistent with the last names only accommodation, because the accommodation was based

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on the understanding that he would address students like a sports coach would, and a sports coach

would likely use first and last names at a formal event. [Filing No. 120-3 at 33.]

On May 25, 2018, Mr. Kluge was scheduled to meet with Ms. Gordon and Dr. Daghe, but

when he arrived for the meeting, Mr. Daghe told him that the meeting was cancelled because "We

have everything we need." [Filing No. 15-3 at 1.] That same afternoon, Mr. Kluge submitted to

Ms. Gordon a document titled "Withdrawal of Intention to Resign and Request for Continuation

of Accommodation." [Filing No. 15-3 at 1-7.] In that document, Mr. Kluge explained that he was

"confused" as to why Dr. Daghe cancelled the meeting, and asserted that at the meeting he planned

to withdraw his "emailed intention to resign," which he had sent to Ms. Gordon on April 30 along

with a request that the email not be processed. [Filing No. 15-3 at 1.] He outlined his version of

events leading up to his forced resignation, accused BCSC of discriminating against him based on

his religious beliefs, and ultimately asked that he be permitted to continue his employment using

the last names only accommodation. [Filing No. 15-3 at 1-7.] Approximately two hours after Mr.

Kluge submitted the purported rescission to Ms. Gordon, BCSC "locked [Mr. Kluge] out of the

BCSC buildings and internet database, and posted [his] job as vacant." [Filing No. 113-2 at 7.]

At a Board meeting on June 11, 2018, Mr. Kluge asked the Board not to accept his

resignation and to reinstate his employment. [Filing No. 113-2 at 7; Filing No. 120-18 at 10.]

Various members of the community also spoke at the meeting, some in support of Mr. Kluge's

termination, and others against it. [See Filing No. 120-18 at 9-13.] The Board accepted Mr.

Kluge's resignation, thereby ending his employment with BCSC. [Filing No. 113-2 at 7; Filing

No. 120-18 at 1.]

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G. This Lawsuit

Mr. Kluge filed his Amended Complaint in this action, asserting thirteen claims against

BCSC and several of its employees. [Filing No. 15.] Upon Defendants' Motion to Dismiss, [Filing

No. 44], the Court dismissed several claims and Defendants, leaving only Mr. Kluge's claims

against BCSC for failure to accommodate and retaliation under Title VII, [Filing No. 70]. As

noted earlier, Mr. Kluge then filed his Motion for Partial Summary Judgment seeking judgment in

his favor on his failure to accommodate claim. [Filing No. 112.] BCSC filed its Cross-Motion for

Summary Judgment seeking judgment in its favor on the failure to accommodate claim and the

retaliation claim. [Filing No. 120.] In addition, the National Association of Social Workers and

its Indiana Chapter, the American Academy of Pediatrics and its Indiana Chapter, the American

Medical Association, and Indiana Youth Group (collectively, "Movants") filed a Motion for Leave

to File Brief of Amici Curiae, seeking "to offer additional insight regarding the harm of [Mr.

Kluge's] proposed accommodation on the health and wellbeing of transgender students that is not

discussed in the briefs submitted by the parties to this case." [Filing No. 131 at 1.] All three of

these motions are fully briefed and ripe for the Court's decision.

III.
DISCUSSION

A. Title VII Background

"Title VII forbids employment discrimination on account of religion." EEOC v. Walmart

Stores E., L.P., 992 F.3d 656, 658 (7th Cir. 2021) (citing 42 U.S.C. § 2000e–2(a)(1)). As used in

Title VII, "religion" "includes all aspects of religious observance and practice, as well as belief,

unless an employer demonstrates that he is unable to reasonably accommodate to an employee's

or prospective employee's religious observance or practice without undue hardship on the conduct

of the employer's business." 42 U.S.C. § 2000e(j).

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To state a prima facie case of religious discrimination based on failure to accommodate, a

plaintiff must show that his religious belief or practice conflicted with a requirement of his

employment and that his religious belief or practice was the basis for the discriminatory treatment

or adverse employment action. Porter v. City of Chicago, 700 F.3d 944, 951 (7th Cir. 2012), as

modified by EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2031-33 (2015). 5 "Once

the plaintiff has established a prima facie case of discrimination, the burden shifts to the employer

to make a reasonable accommodation of the religious practice or to show that any reasonable

accommodation would result in undue hardship." Porter, 700 F.3d at 951.

"In addition to prohibiting discrimination, Title VII 'forbids retaliation against anyone who

"has opposed any practice made an unlawful employment practice by [Title VII], or because he

has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding,

or hearing under [Title VII]."'" Id. at 956 (quoting Loudermilk v. Best Pallet Co., 636 F.3d 312,

314 (7th Cir. 2011) (quoting 42 U.S.C. § 2000e–3(a))). To survive summary judgment on a

retaliation claim, the plaintiff must produce evidence showing a causal link between his protected

activity and the adverse employment action. Khungar v. Access Cmty. Health Network, 985 F.3d

565, 578 (7th Cir. 2021). "The question is: 'Does the record contain sufficient evidence to permit

5
In Porter, the Seventh Circuit articulated an additional element of the prima facie case for failure
to accommodate: that the employee called the religious practice to his employer's attention. 700
F.3d at 951. However, the Supreme Court later made clear that an employee need not prove that
his employer had actual knowledge of the religious belief or practice, and instead must demonstrate
only that the desire not to accommodate was a motivating factor in an adverse employment action.
See Abercrombie, 135 S. Ct. at 2032-33. Other District Courts in this Circuit have therefore
disregarded this additional element. See, e.g., Jackson v. NTN Driveshaft, Inc., 2017 WL 1927694,
at *1 (S.D. Ind. May 10, 2017). This Court will do the same, although it makes no difference
because it is undisputed that BCSC was aware of Mr. Kluge's religion-based objections to the
Name Policy.
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a reasonable fact finder to conclude that retaliatory motive caused the discharge?'" Id. (quoting

Lord v. High Voltage Software, Inc., 839 F.3d 556, 563 (7th Cir. 2016)).

B. Motion for Leave to File Brief of Amici Curiae

Movants argue that as highly regarded medical and mental health organizations and a

provider of support services to transgender youth in Indiana, they are well-positioned to provide

the Court with insight regarding how inclusive policies that respect the names and pronouns that

match a student's gender identity have been demonstrated to reduce harm to the student's physical

and mental health, including by reducing levels of depression, thoughts of suicide, and attempted

suicide among transgender youth. [Filing No. 131 at 2-3.] Movants point out that other courts

have routinely permitted them to file amicus briefs to offer their expertise and insight on issues of

mental health and welfare, including with respect to transgender youth. [Filing No. 131 at 3 (citing

cases).] Movants attach their proposed brief to the motion. [Filing No. 131-1.]

Mr. Kluge responds that "[t]he proposed amicus brief . . . does little more than add twenty-

two additional pages to BCSC's fifty-page long brief by rehashing—at length and with additional

citations—the proposition that some transgender students may experience negative emotions or

psychological difficulty when they do not feel socially supported." [Filing No. 145 at 2.]

According to Mr. Kluge, "[t]his is not a unique insight, it is not relevant to the salient legal issues

in this case, and it will not provide any assistance to the Court not already available in the parties'

briefs." [Filing No. 145 at 2.] Specifically, Mr. Kluge contends that the proposed amicus brief

sheds no light on whether BCSC suffered an undue burden, what accommodation BCSC ought to

have made for Mr. Kluge's religious beliefs, and whether Mr. Kluge has demonstrated retaliation.

[Filing No. 145 at 7.] Mr. Kluge asserts that the cases cited by Movants, in which they were

permitted to file amicus briefs, are distinguishable from the present case. [Filing No. 145 at 7-9.]

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Finally, Mr. Kluge contends that the proposed amicus brief stands for the proposition that calling

transgender students by their chosen names respects and affirms their gender identity, but BCSC

has argued that using chosen first names is a purely administrative task, and therefore the proposed

brief has no relevance to the issues in this case. [Filing No. 145 at 9-10.]

In reply, Movants argue that the evidence presented in their proposed amicus brief

concerning the importance of calling transgender students by names and pronouns that affirm their

gender identity "bears directly on a central issue in this case: whether [Mr.] Kluge's proposed

accommodation caused an undue hardship on [BCSC]." [Filing No. 147 at 1.] According to

Movants, "[i]f the scientific evidence shows that Mr. Kluge's proposed accommodation would be

contrary to the health and well-being of transgender students, then the accommodation

undoubtedly imposed 'more than a de minimis cost' to BCSC whose mission is to educate and

protect those students." [Filing No. 147 at 1.] Movants maintain that their perspective is unique

because although the parties address the harm caused to two particular transgender students,

Movants explain from a scientific research perspective why the last names only arrangement

threatens the mental and physical wellbeing of transgender youth more broadly. [Filing No. 147

at 2.]

The Seventh Circuit "has held that whether to allow the filing of an amicus curiae brief is

a matter of 'judicial grace.'" Voices for Choices v. Illinois Bell Tel. Co., 339 F.3d 542, 544 (7th

Cir. 2003) (quoting National Organization for Women, Inc. v. Scheidler, 223 F.3d 615, 616 (7th

Cir. 2000)). In deciding whether to permit such a brief, courts should consider "whether the brief

will assist the judges by presenting ideas, arguments, theories, insights, facts, or data that are not

to be found in the parties' briefs." Voices for Choices, 339 F.3d at 545. "The criterion is more

likely to be satisfied in a case in which a party is inadequately represented; or in which the would-

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be amicus has a direct interest in another case that may be materially affected by a decision in this

case; or in which the amicus has a unique perspective or specific information that can assist the

court beyond what the parties can provide." Id. (citing Scheidler, 223 F.3d at 616-17).

The Court acknowledges that Movants and other similar organizations have been permitted

to submit amicus briefs in other cases, and that they have provided courts with information and

perspectives that are important to addressing legal issues affecting transgender individuals. In the

instant case, however, that information is not necessary. As Mr. Kluge acknowledges, the general

notion that failing or refusing to affirm a transgender individual's identity using preferred names

and pronouns causes psychological and emotional harm is "not a unique insight." [Filing No. 145

at 2.] Indeed, it is undisputed that BCSC accepted that premise as true and sought to alleviate

potential psychological and emotional harm to students through its policies and practices

concerning the treatment of transgender students. [See Filing No. 15-4 at 9 (BCSC's January 2018

"Transgender Questions" document stating "It is our job to make all students feel welcome and

accepted in the public school environment").] Even Mr. Kluge acknowledges that failing to affirm

the identities of transgender students causes "emotional harm" to those students, although he

argues that such harm is insufficient to constitute an undue burden. [See, e.g., Filing No. 153 at

19 ("The emotional discomfort and complaints of two students and a single teacher cannot justify

forcing Kluge to face a choice between violating his religious beliefs and losing his job.").]

Accordingly, the Court will resolve the pending motions by considering only the parties' briefs,

and Movants' Motion for Leave to File Brief of Amici Curiae, [Filing No. 131], is DENIED.

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C. Summary Judgment Motions

1. Failure to Accommodate Claim

Mr. Kluge argues that BCSC discriminated against him by refusing to accommodate his

sincerely held religious beliefs. [Filing No. 114 at 19-35.] Specifically, he asserts that his belief

against promoting transgenderism by using a transgender student's preferred name and pronouns

is religious in nature, is sincerely held, and was clearly communicated to BCSC. [Filing No. 114

at 19-23.] He further argues BCSC discriminated against him based on that belief in three ways:

(1) "withdr[awing] the last-name only accommodation despite a lack of undue hardship";

(2) "refus[ing] to offer or discuss any other accommodation"; and (3) "coerc[ing] his resignation

letter through misrepresentation." [Filing No. 114 at 23-28.] Mr. Kluge contends that BCSC failed

to offer any accommodation after it withdrew the last names only accommodation, and even if the

last names only accommodation was the only possible accommodation, BCSC cannot show that

use of that accommodation would cause undue hardship. [Filing No. 114 at 28-29.] He argues

that students' "emotional discomfort" does not constitute undue hardship, and "[t]he fact that BCSC

and [Mr.] Kluge agreed to an accommodation and used it successfully for a full semester

establishes last-names only as a 'reasonable accommodation' for [Mr.] Kluge's religious beliefs,

and also that there was no 'undue hardship' associated with that accommodation." [Filing No. 114

at 29-30.] According to Mr. Kluge, when BCSC informed him that he could no longer use last

names only, "BCSC did not detail any undue hardship and did not engage [Mr.] Kluge in any

specific discussions concerning undue hardship," but instead Ms. Gordon characterized the last

names only arrangement as a "policy violation." [Filing No. 114 at 30.] Mr. Kluge contends that

BCSC has not identified any hardship that rises above the de minimis level because it has shown

no economic costs or disruption to operations and no classroom disruptions, rearrangements of

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personnel scheduling, or demonstrably impaired learning outcomes as a result of his use of last

names only. [Filing No. 114 at 31.] In fact, he argues, it is undisputed that his orchestra students

excelled. [Filing No. 114 at 31.] Mr. Kluge contends that the only hardships identified are the

complaints of two students and one teacher, which were not relayed to Mr. Kluge "until well after

the fact," as well as "references to unspecified attorneys' fees and 'opportunity costs' for the

management of the accommodation," which are not sufficient to constitute undue hardship within

the meaning of Title VII. [Filing No. 114 at 31-32.] Finally, Mr. Kluge argues that BCSC's

policies regarding transgender students provide accommodations to those students to the detriment

of employees' sincere religious beliefs, which are not equally accommodated, creating the

suggestion "that transgender rights overrule religious rights and that is the antithesis of

reasonableness." [Filing No. 114 at 32-35.]

In its Cross-Motion for Summary Judgment and Response to Mr. Kluge's Motion for Partial

Summary Judgment ("Cross-Motion/Response"), BCSC argues that Mr. Kluge cannot establish a

prima facie case of discrimination based on failure to accommodate because addressing students

by their preferred names and pronouns is a purely administrative task and therefore does not

objectively conflict with his sincerely held religious beliefs. [Filing No. 121 at 28-32.] In support

of this argument, BCSC cites Summers v. Whitis, 2016 WL 7242483 (S.D. Ind. Dec. 15, 2016).

[Filing No. 121 at 29-32.] Even if he could establish a prima facie case, BCSC argues, Mr. Kluge's

claim still fails because his use of last names only created undue hardship. [Filing No. 121 at 32-

43.] Specifically, BCSC contends that its "business" comprises a constitutional statutory

obligation to educate students, and Mr. Kluge's use of last names only frustrates that purpose by

causing emotional harm to students and impairing BCSC's efforts to educate them. [Filing No.

121 at 34-36.] BCSC further argues that courts have routinely found undue hardship where a

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religious accommodation threatens the classroom learning environment. [Filing No. 121 at 36-38

(citing cases).] BCSC asserts that Mr. Kluge's suggestion that the complaints received by the

school constitute "heckler's vetoes" and therefore cannot amount to an undue burden is without

merit because "[t]hat is not the law" and because the case Mr. Kluge relied upon addresses alleged

First Amendment free speech violations and has no application in the Title VII context. [Filing

No. 121 at 39.] BCSC also contends that it was not required to offer Mr. Kluge another reasonable

accommodation, and instead is only required to demonstrate that no accommodation would be

reasonable, which it has done because it is obvious that a high school classroom can only function

when teachers address students directly. [Filing No. 121 at 40.] Under these circumstances, BCSC

argues, it has established as a matter of law that any accommodation would impose undue hardship.

[Filing No. 121 at 41.] In addition, the last names only arrangement created an undue hardship by

placing BCSC on "the razor's edge of liability" by exposing it to potential lawsuits by transgender

students alleging discrimination. [Filing No. 121 at 41-43.] Finally, BCSC argues that if the Court

declines to grant summary judgment in BCSC's favor on the failure to accommodate claim, it

should also decline to grant summary judgment in Mr. Kluge's favor on the issue of the sincerity

of his religious belief against using transgender students' preferred names and pronouns. [Filing

No. 121 at 47-49.] Specifically, BCSC asserts that genuine issues of material fact exist regarding

whether Mr. Kluge's belief is sincerely held, given that he used transgender students' preferred

names at an orchestra awards ceremony in May of 2018 and that he testified in his deposition that

there may be instances in which it is appropriate and consistent with his religious beliefs to address

a transgender student by the student's preferred first name. [Filing No. 121 at 48-49.]

In his combined Reply in Support of his Motion for Partial Judgment and Response in

Opposition to BCSC's Cross-Motion for Summary Judgment ("Reply/Response"), Mr. Kluge

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maintains that his religious belief against using transgender students' preferred names and

pronouns is sincerely held. [Filing No. 153 at 32-35.] Mr. Kluge argues that the requirement that

BCSC teachers address transgender students using their preferred names and pronouns objectively

conflicts with his religious beliefs against affirming transgenderism, and BCSC's position to the

contrary "ignores the tremendously important role that names play." [Filing No. 153 at 10-12.]

He urges the Court to follow the Sixth Circuit's decision in Meriwether v. Hartop, 992 F.3d 492

(6th Cir. 2021), and conclude that using names and pronouns is more than a ministerial act and

carries a specific message affirming an individual's gender identity. [Filing No. 153 at 12-13.]

Mr. Kluge further reiterates that the last names only accommodation was reasonable. [Filing No.

153 at 14-30.] Specifically, he contends that "[t]he undisputed evidence shows that [Mr.] Kluge's

accommodation worked quite well and actually enhanced his ability to educate his students in

music and orchestra," because there were no student protests, written complaints, classroom

disturbances, or cancelled classes, but rather the students excelled and received awards for their

musical performances. [Filing No. 153 at 14-15.] Again relying on Meriwether, Mr. Kluge asserts

that using students' last names only does not negatively impact the learning environment, and at

the very least, an issue of fact remains as to whether the last names only accommodation created

an undue hardship. [Filing No. 153 at 15-16; Filing No. 153 at 23-26.] Mr. Kluge points out that

BCSC never told him specifically that the last names only accommodation was creating an undue

hardship, and instead told him that it was a "policy violation." [Filing No. 152 at 16-17.] Mr.

Kluge asserts that "[t]here is no admissible evidence that any students, except two transgender

students—Aidyn Sucec and Sam Willis—complained about [Mr.] Kluge's use of last names only,"

and these complaints "are 'heckler's vetoes,' not evidence of an undue burden or a negative impact

on the learning environment." [Filing No. 153 at 17-19.] According to Mr. Kluge, "[t]he

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emotional discomfort and complaints of two students and a single teacher[, Mr. Lee,] cannot justify

forcing [Mr.] Kluge to face a choice between violating his religious beliefs and losing his job."

[Filing No. 153 at 19.] Mr. Kluge contends that complaints by unnamed students at Equality

Alliance Club meetings regarding Mr. Kluge's use of last names only "constitute inadmissible

hearsay and hearsay within hearsay," and should not be considered by the Court. [Filing No. 153

at 21-22.] Mr. Kluge further argues that any cases cited by BCSC for the proposition that the last

names only accommodation exposed it to liability for discrimination against transgender students

are inapposite, and "using someone's legal surname does not create any risk of liability." [Filing

No. 153 at 26-28 (distinguishing cases cited by BCSC).] Mr. Kluge contends that any claim that

BCSC feared potential lawsuits is undercut by its failure to conduct any investigation into student

complaints. [Filing No. 153 at 29-30; Filing No. 153 at 29 ("If BCSC felt it might be sued, why

did the administration fail to conduct any investigation upon learning of the alleged complaints by

unidentified students?").]

In its Reply in Support of Cross-Motion for Summary Judgment ("Reply"), BCSC

maintains that this case is indistinguishable from Summers and Mr. Kluge has failed to demonstrate

an objective conflict between his religious beliefs and the requirement that he refer to transgender

students by the names and pronouns listed in PowerSchool. [Filing No. 150 at 2-6.] BCSC argues

that Meriwether is distinguishable because, among other things, it involved claims under the First

Amendment and therefore has no application to the objective conflict analysis required for Title

VII claims. [Filing No. 150 at 6-8.] BCSC asserts that it has established two separate grounds for

undue hardship: (1) the last names only accommodation led to complaints and impeded BCSC's

mission to educate students; and (2) the continued use of last names only could have resulted in

BCSC being exposed to liability for discrimination. [Filing No. 150 at 8-16.] According to BCSC,

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Mr. Kluge's argument that the last names only accommodation was successful ignores evidence of

complaints from members of the BHS community, and his assertion that no undue hardship exists

because his students excelled and he did not perceive any problems ignores the undue hardship

standard. [Filing No. 150 at 9-10.] BCSC asserts that Mr. Kluge's accommodation did not

constitute protected speech, the fact that BCSC never informed Mr. Kluge in writing or otherwise

that the accommodation was causing undue hardship and instead called it a policy violation is

irrelevant, and Mr. Kluge's description of Aidyn's and Sam's complaints as "heckler's vetoes" or

indicative of mere "emotional discomfort" are inapt. [Filing No. 150 at 10-12.] BCSC contends

that the complaints about Mr. Kluge's use of last names are not hearsay because they are offered

to show their effect on BCSC's state of mind as it relates to whether the accommodation was

causing undue hardship. [Filing No. 150 at 12-13.] In addition, BCSC argues that in order to

show undue hardship based on potential exposure to liability, it need not prove that it would lose

a lawsuit brought by a transgender student, and instead it is sufficient to show that transgender

students felt targeted by Mr. Kluge's practices and that law in the Seventh Circuit during the

relevant timeframe would have permitted a transgender student to assert a sex discrimination claim

under federal law. [Filing No. 150 at 14-16.] Finally, BCSC reiterates that, if the Court declines

to grant summary judgment in its favor as to the failure to accommodate claim, the question of the

sincerity of Mr. Kluge's religious beliefs should be submitted to the factfinder. [Filing No. 150 at

18-19.]

a. Hearsay Objections

Mr. Kluge argues that the complaints received by Mr. Lee from unidentified students

constitute inadmissible hearsay. [Filing No. 153 at 21-22.] "Hearsay is an out-of-court statement

offered to prove the truth of the matter asserted." Khungar, 985 F.3d at 575 (citing Fed. R. Evid.

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801(c)). The Seventh Circuit has held in another Title VII case that complaints received by an

employer do not constitute hearsay when they are not offered to show that the employee in fact

engaged in the conduct complained of, but to show the employer's state of mind when making an

employment decision. Khungar, 985 F.3d at 575. A case that Mr. Kluge relies on, Emich Motors

Corp. v. General Motors Corp., 181 F.2d 70, 82 (7th Cir. 1950), rev'd on other grounds, 340 U.S.

558 (1951), is over 70 years older but stands for the same proposition: "We agree with the

defendants that the complaint letters received by them should have been admitted, not for their

testimonial use, to prove the facts contained therein, but to show the information on which they

acted. This is a well-established exception to the hearsay rule." See also Walker v. Alcoa, Inc.,

2008 WL 2356997, at *5 (N.D. Ind. June 9, 2008) ("The Court finds, however, that Musi's

testimony regarding the employee complaints he overheard about Sunday absences is not hearsay

under Federal Rules of Evidence 801 and 802 because it is not offered for the truth of the matter

asserted; instead, Musi's testimony is offered to show the effect of those statements on the hearer,

which in this case is the employer.").

Mr. Lee's testimony that he received complaints about Mr. Kluge from students is not

offered for the truth of the matter asserted in those complaints, i.e., that Mr. Kluge referred to

students by last names only, or that he sometimes "slipped up" and used gendered names and

honorifics. Instead, the testimony is offered to show BCSC's state of mind in considering his

continued employment and the information upon which it acted in seeking his resignation. Mr.

Lee's testimony is therefore admissible to that extent. See Khungar, 985 F.3d at 575; Emich

Motors, 181 F.2d at 82; Walker, 2008 WL 2356997, at *5. See also Junior v. Anderson, 724 F.3d

812, 814 (7th Cir. 2013) ("Testimony to what one heard, as distinct from testimony to the truth of

what one heard, is not hearsay.").

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In any event, Mr. Kluge does not (and could not) challenge the admissibility of the

declarations provided by Aidyn and Sam, nor does he challenge the admissibility of the testimony

by Dr. Daghe, Dr. Jessup, or Ms. Gordon stating that BCSC received complaints about Mr. Kluge's

treatment of transgender students. Nor does he seek to exclude the minutes from the June 2018

Board meeting, which show that Mr. Kluge and BCSC's policies concerning transgender students

were subjects of concern for several community members. In other words, even if the Court were

to exclude Mr. Lee's testimony that he received complaints from unnamed students, the Court's

analysis would remain largely unchanged. 6 Finally, it is also worth noting that while Mr. Kluge

may dispute the truth of the matter asserted in the students' complaints to the extent he maintains

that he strictly complied with the last names only accommodation and did not refer to any students

using their first names or gendered language, that dispute is not material. As addressed more fully

below, the question that is ultimately dispositive of Mr. Kluge's failure to accommodate claim is

whether, assuming perfect compliance with the last names only accommodation, that

accommodation resulted in undue hardship to BCSC. 7

6
Mr. Kluge seems to imply that because he was not specifically informed of the complaints as
they were being made and was not told who specifically was making the complaints, they did not
exist. [See Filing No. 153 at 7 (stating that Mr. Kluge disputes that complaints were made by
unnamed persons and teachers who did not submit sworn statements because "[n]one of these
alleged complaints were made known to [Mr.] Kluge until after his termination" and "[n]one were
investigated").] Mr. Kluge has identified no legal authority for his apparent belief that complaints
must be relayed to an employee before they can be considered relevant to an employer's decision
as to whether an undue hardship exists. Furthermore, the Seventh Circuit has previously rejected
a similar argument, concluding that it was not a "justifiable" inference to conclude that complaints
were illegitimate based solely on the employee's lack of knowledge of those complaints. Khungar,
985 F.3d at 575 ("That [plaintiff] wasn't informed of each complaint tells us only that; it does not
mean they were fictitious.").
7
To the extent that Mr. Kluge makes arguments concerning the credibility of certain witnesses or
the weight their testimony should be afforded, [see Filing No. 153 at 18 ("Kluge identified
credibility issues associated with [Aidyn]'s statement."); Filing No. 153 at 21 ("[Mr.] Lee's
inability to identify any other students [who complained] reflects negatively on his credibility.")],
the Court has disregarded these arguments because they are not proper at summary judgment, see,
34

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b. Adverse Employment Actions

Mr. Kluge identifies three separate purported adverse employment actions that could form

the basis of his discrimination claim based on failure to accommodate: (1) withdrawal of the last

names only accommodation; (2) refusal to offer or discuss other potential accommodations; and

(3) "coerc[ion of] his resignation letter through misrepresentation." [Filing No. 114 at 23.]

Because it can be resolved easily, the Court will deal with the last claim first.

i. Coercion of Resignation Through Fraud

Any contention that Mr. Kluge's resignation was coerced through misrepresentation is

wholly without merit. The misrepresentation, according to Mr. Kluge, is that he was led to believe

that he could submit a conditional resignation. But this argument is not supported by the evidence.

In dismissing Mr. Kluge's state law fraud claim, the Court has already determined that "Mr. Kluge's

written resignation . . . was not expressly conditioned on anything, did not contain any language

concerning his ability to withdraw it, and instead merely requested that the letter not be 'processed'

and that no one be notified until a certain date." [Filing No. 70 at 39-40.] In other words, even if

Mr. Kluge thought he was permitted to submit a conditional or rescindable resignation, he failed

to actually do so. Furthermore, the evidence presented along with the summary judgment motions

demonstrates that Ms. Gordon never told Mr. Kluge that his resignation could be conditional or

that he could withdraw it for any reason. In fact, the transcript of the recorded conversation

between Ms. Gordon, Mr. Kluge, and Dr. Daghe concerning "processing" of resignations shows

that Ms. Gordon merely discussed the circumstances under which Ms. Gordon and the BCSC

administration would respect an employee's wishes not to disclose the employee's resignation to

e.g., Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697, 704-05 (7th Cir. 2011) ("[D]istrict
courts presiding over summary judgment proceedings may not 'weigh conflicting evidence,' or
make credibility determinations, both of which are the province of the jury." (citations omitted)).
35

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others. [See Filing No. 113-4 at 36-37.] Her email response to Mr. Kluge's resignation also does

not state—or even imply—that Mr. Kluge could rescind his resignation. [Filing No. 15-2 at 1.]

BCSC's Bylaws and relevant Indiana law concerning school corporation employees' resignations

further demonstrates that a "conditional" resignation was not authorized. Accordingly, to the

extent that Mr. Kluge suggests that Ms. Gordon lied to him as a means to coerce his resignation,

and that such lying is somehow independently actionable as discrimination, he has presented no

evidence to support that theory.

ii. Failure to Offer or Discuss Other Potential Accommodations

To the extent that Mr. Kluge argues that BCSC discriminated against him in that it failed

to propose an alternative accommodation, or to engage in further discussions regarding a potential

accommodation, the law does not require it to do so. Title VII merely requires an employer to

"show, as a matter of law, that any and all accommodations would have imposed an undue

hardship." Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444, 455 (7th Cir. 2013). Mr. Kluge

points to no legal authority supporting his position that failure to offer an alternative

accommodation or conduct discussions concerning whether an alternative accommodation may

exist constitutes an adverse employment action that can serve as an independent basis for a

discrimination claim. See Bell v. EPA, 232 F.3d 546, 555 (7th Cir. 2000) ("Although we define

'adverse employment action' broadly, not everything that makes an employee unhappy is an

actional adverse action. For an employment action to be actionable, it must be 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.'" (quoting

Burlington Indus. V. Ellerth, 524 U.S. 742, 761 (1998))); cf. Bolden v. Caravan Facilities Mgmt.,

LLC, 112 F. Supp. 3d 785, 791 (N.D. Ind. 2015) (observing that although the federal regulations

36

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implementing the American with Disabilities Act require an interactive process between the

employer and the employee to determine the appropriate reasonable accommodation for the

employee's disability, the plaintiff could not cite any comparable regulation imposing an

interactive process requirement in Title VII cases).

Similarly, Mr. Kluge has not pointed to any evidence showing that he devised or proposed

an alternate accommodation—separate from the last names only accommodation—that BCSC

refused to discuss with him. Accordingly, any purported discrimination claim based on a refusal

to entertain discussions regarding the possibility of other accommodations is both legally

unsupported and inconsistent with the evidence of record. 8

iii. Withdrawal of the Last Names Only Accommodation and Forced

Resignation

The undisputed facts show that the last names only accommodation was withdrawn, and

Mr. Kluge was given the choice to either resign or be terminated; it was not an option for Mr.

Kluge to continue his employment without following the Name Policy or BCSC's other directives

concerning transgender students. Although the Court has rejected as factually incorrect Mr.

8
It is also significant that Mr. Kluge has not proposed or identified any alternative accommodation
that BCSC could have offered, and the Court cannot conceive of any such accommodation.
Without conflating the issue of whether the failure to propose or discuss an alternative
accommodation constitutes an independent act of discrimination with the issue of whether any
potential reasonable accommodation exists that would not result in undue hardship to BCSC, it is
sufficient to say that any potential alternative accommodation would succeed or fail for the same
reasons the last names only accommodation would. The central issue in this case is whether BCSC
could permit Mr. Kluge to refer to students by anything other than their preferred first names as
listed in PowerSchool without incurring undue hardship. It is undisputed that Mr. Kluge refused
to use those names, and therefore if any other potential accommodation did in fact exist, it would
necessarily involve him not using those names. It is the very refusal to use those names that caused
the alleged hardships addressed below. Accordingly, if BCSC can demonstrate that the last names
only accommodation results in undue hardship, it can demonstrate that any other potential
accommodation would result in the same undue hardship. Mr. Kluge has suggested no alternative,
and the Court can conceive of none. For those reasons, the Court need not and will not specifically
address the issue of other potential accommodations any further in this Order.
37

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Kluge's repeated assertion that his resignation was coerced through misrepresentation, his

resignation was "coerced" in the sense that he had to choose between resigning and being

terminated. BCSC does not dispute that the end of Mr. Kluge's employment, however it is

characterized, constituted an adverse employment action for purposes of a Title VII discrimination

claim based on failure to accommodate. See Leitgen v. Franciscan Skemp Healthcare, Inc., 630

F.3d 668, 673 (7th Cir. 2011) ("There is no dispute that [plaintiff's] forced resignation constitutes

an adverse employment action . . . ."). The Court will therefore treat Mr. Kluge's forced resignation

as the relevant adverse employment action, encompassing the withdrawal of the last names only

accommodation and the ultimate end of his employment.

c. Sincerity of Mr. Kluge's Beliefs

"Title VII and courts . . . do not require perfect consistency in observance, practice, and

interpretation when determining if a belief system qualifies as a religion or whether a person's

belief is sincere. These are matters of interpretation where the law must tread lightly." Adeyeye

v. Heartland Sweeteners, LLC, 721 F.3d 444, 453 (7th Cir. 2013); see also Grayson v. Schuler,

666 F.3d 450, 454-55 (7th Cir. 2012) ("[A] sincere religious believer doesn't forfeit his religious

rights merely because he is not scrupulous in his observance; for where would religion be without

its backsliders, penitents, and prodigal sons?"). Nevertheless, the sincerity of an individual's

religious belief is a question of fact that is generally not appropriate for a court to determine at

summary judgment. EEOC v. Union Independiente de la Autoridad de Acueductos y

Alcantarillados de Puerto Rico, 279 F.3d 49, 56 (7th Cir. 2002). Because BCSC has shown that

there are issues of fact as to whether Mr. Kluge's religious beliefs are sincerely held, the Court

cannot decide that issue at this juncture. However, for purposes of this Order, the Court will

38

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assume without deciding that Mr. Kluge's religious beliefs against referring to transgender students

by their preferred names and pronouns are sincerely held.

d. Conflict Between BCSC's Policies and Mr. Kluge's Beliefs

In Summers v. Whitis, 2016 WL 7242483, *1 (S.D. Ind. Dec. 15, 2016), plaintiff Linda

Summers worked as a deputy clerk in the Harrison County, Indiana Clerk's Office until she was

fired for refusing to process marriage licenses for same-sex couples based on her religious

opposition to same-sex marriage. The Court granted summary judgment in favor of the defendants

on Ms. Summers' failure to accommodate claim, concluding that there was no objective conflict

between her religious belief and the requirement that she process marriage licenses for same-sex

couples. Id. at *7. The Court emphasized that the conflict inquiry must be objective, and further

determined that Ms. Summers was merely required to process licenses by viewing the application,

verifying that certain information was correct, collecting a statutory fee, printing a form, and

recording the license in a book for the public record. Id. at *5. "She was simply tasked with

certifying—on behalf of the state of Indiana, not on her own behalf—that the couple was qualified

to marry under Indiana law," a duty which the Court concluded was "purely administrative." Id.

The Court emphasized that Ms. Summers was not required to perform marriage ceremonies,

personally sign marriage certificates, attend marriage ceremonies, say congratulations, offer a

blessing, pray with couples, or condone or express religious approval of any particular marriage.

Id. Because there was no conflict between her religious belief and her job duties, the employer

had no duty to accommodate Ms. Summers' beliefs. See id. ("If the employee fails to show a bona

fide conflict, it makes no sense to speak of a duty to accommodate.") (quoting Ansonia Bd. of

Educ. v. Philbrook, 479 U.S. 60, 76 (1986) (Stevens, J., concurring in part and dissenting in part))

(internal quotations omitted).

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In Meriwether v. Hartop, 992 F.3d 492, 492-503 (6th Cir. 2021), the Sixth Circuit

considered whether the district court erred in dismissing a professor's claim that the small public

university where he worked violated the First Amendment by disciplining him for refusing to refer

to a transgender student using the student's preferred pronouns. In concluding that the professor

had stated a claim for violation of his freedom of speech, the court rejected the university's

argument that using a student's preferred titles and pronouns is the "type of non-ideological

ministerial task would not be protected by the First Amendment." Id. at 507. Instead, the court

reasoned:

[T]itles and pronouns carry a message. The university recognizes that and wants its
professors to use pronouns to communicate a message: People can have a gender
identity inconsistent with their sex at birth. But Meriwether does not agree with that
message, and he does not want to communicate it to his students. That's not a matter
of classroom management; that's a matter of academic speech.

Id.

The Court agrees with BCSC that Summers provides the relevant rule that there must be an

objective conflict between an employee's religious beliefs and his duties before the employer can

be expected to provide a reasonable accommodation related to those beliefs. The Court disagrees,

however, with BCSC's argument that Summers requires a finding that no such conflict exists in

this case. It is inconsistent for BCSC to argue on one hand that referring to students by the names

listed in PowerSchool is a purely administrative duty that does not conflict with Mr. Kluge's

religious beliefs against affirming a person's transgender identity, while arguing on the other hand

that Mr. Kluge's refusal to use the names listed in PowerSchool causes harm to students—and

therefore, undue hardship to BCSC—because the students do not feel affirmed in their identities.

Accordingly, the Court rejects BCSC's administrative task argument and concludes that Mr.

40

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Kluge's religious beliefs objectively conflict with the Name Policy and BCSC's other requirements

concerning how faculty and staff address and refer to transgender students.

To be clear, this conclusion is not the result of the Court's reliance on Meriwether. Without

expressing an opinion as to the correctness of that case's holding or its application to the facts of

this case, the Court observes that Meriwether is not binding precedent in this Circuit, that it

involved a First Amendment claim rather than a Title VII claim, and that courts have continually

emphasized the distinction between public K-12 schools and universities in addressing speech and

other constitutional issues. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 329 (2003) (recognizing

that "universities occupy a special niche in our constitutional tradition"). Having already

concluded that an objective conflict exists between BCSC's policies and Mr. Kluge's religious

beliefs, it is unnecessary to examine any of these distinctions more closely.

e. Undue Hardship

Because Mr. Kluge has established a prima facie case of discrimination based on failure to

accommodate, the burden shifts to BCSC to demonstrate that it cannot provide a reasonable

accommodation "without undue hardship on the conduct of [its] business." 42 U.S.C. § 2000e(j);

Porter, 700 F.3d at 951. Requiring an employer "to bear more than a de minimis cost" or incur

more than a "slight burden" constitutes an undue hardship. EEOC v. Walmart Stores E., L.P., 992

F.3d 656, 658 (7th Cir. 2021) (quoting Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84

(1977)). "The relevant costs may include not only monetary costs but also the employer's burden

in conducting its business." E.E.O.C. v. Oak-Rite Mfg. Corp., 2001 WL 1168156, at *10 (S.D.

Ind. Aug. 27, 2001).

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i. Interference with BCSC's Ability to Educate Students

As an initial matter, the Court recognizes that BCSC is in the "business" of providing public

education, as required by Indiana statutory and constitutional law. The Indiana Supreme Court

has recognized that public schools play a "custodial and protective role," which has been codified

by the legislature in passing compulsory education laws that mandate the availability of public

education. Linke v. Nw. Sch. Corp., 763 N.E.2d 972, 979 (Ind. 2002). The Indiana Constitution

also provides that "it shall be the duty of the General Assembly . . . to provide, by law, for a general

and uniform system of Common Schools, wherein tuition shall be without charge, and equally

open to all." IND. CONST. art. VIII, § 1.

BCBS argues that Mr. Kluge's failure to address transgender students by the names and

pronouns reflected in PowerSchool created undue hardship related to interference with its mission

to educate students. To support its position, BCSC asks the Court to analogize the facts of this case

to those at issue in Baz v. Walters, 782 F.2d 701 (7th Cir. 1986). In Baz, a hospital chaplain

brought a claim under Title VII against his former employer, the Veterans Administration ("VA").

Id. at 702. The chaplain was ultimately terminated for violating the VA's regulations against

proselytizing; As a result of his religious beliefs, he "saw himself as an active, evangelistic,

charismatic preacher while the chaplain service and the medical staff saw his purpose as a

quiescent, passive listener and cautious counselor." Id. at 704. The chaplain argued that the VA

should be required to accommodate his religious ministry, but the Seventh Circuit disagreed,

concluding that the defendants had demonstrated that they could not accommodate the chaplain's

religious beliefs without undue hardship and writing:

[Defendants] have produced evidence tending to show that Reverend Baz's

philosophy of the care of psychiatric patients is antithetical to that of the V.A. To
accommodate Reverend Baz's religious practices, they would have to either adopt
his philosophy of patient care, expend resources on continually checking up on

42

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what Reverend Baz was doing or stand by while he practices his (in their view,
damaging) ministry in their facility. None of these is an accommodation required
by Title VII.

Id. at 706-07.

The Court agrees that the analogy between BCSC as a public-school corporation and the

VA hospital in Baz is an apt one as it relates to a court's determination of an organization's mission.

Just as the chaplain's philosophy of patient care was directly at odds with the philosophy of his

employer, Mr. Kluge's religious opposition to transgenderism is directly at odds with BCSC's

policy of respect for transgender students, which is grounded in supporting and affirming those

students. Under Baz, BCSC would not be required to adopt Mr. Kluge's views relative to the

treatment of transgender students nor stand by while he expresses those views. Baz does not,

however, squarely resolve this case, because the central issue here is whether the last names only

accommodation—which presents a sort of middle ground between the opposing philosophies of

Mr. Kluge on the one hand and BCSC on the other—results in undue hardship to BCSC. No such

potential accommodation was addressed in Baz.

Nevertheless, the undisputed evidence in this case demonstrates that the last names only

accommodation indeed resulted in undue hardship to BCSC as that term is defined by relevant

authority. Aidyn's and Sam's declarations show that Mr. Kluge's use of last names only—

assuming, only for purposes of this Order, that Mr. Kluge strictly complied with the rules of the

accommodation—made them feel targeted and uncomfortable. Aidyn dreaded going to orchestra

class and did not feel comfortable speaking to Mr. Kluge directly. Other students and teachers

complained that Mr. Kluge's behavior was insulting or offensive and made his classroom

environment unwelcoming and uncomfortable. Aidyn quit orchestra entirely. Certainly, this

evidence shows that Mr. Kluge's use of the last names only accommodation burdened BCSC's

43

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 Case: 21-2475 Document: 13 Filed: 10/01/2021 Pages: 112

ability to provide an education to all students and conflicted with its philosophy of creating a safe

and supportive environment for all students. 9 BCSC was not required to allow an accommodation

that unduly burdened its "business" in this manner. 10 See Erlach v. New York City Bd. of Educ.,

1996 WL 705282, at *11 (E.D.N.Y. Nov. 26, 1996), aff'd, 129 F.3d 113 (2d Cir. 1997)

("interference with students' learning need not be undertaken because it constitutes 'undue

hardship' for the employer").

In an attempt to show that his interference with BCSC's business did not rise above the de

minimis level, Mr. Kluge repeatedly emphasizes that many of his orchestra students were

successful during the 2017-2018 school year in that they participated in extracurricular activities

and won awards for their musical performances. He also submitted declarations from students and

another teacher stating that they did not perceive any problems in Mr. Kluge's classes resulting

from the use of last names only. These facts may well be true, and are accepted as such, but they

are neither dispositive of nor relevant to the undue hardship question. BCSC is a public-school

corporation and as such has an obligation to meet the needs of all of its students, not just a majority

of students or the students that were unaware of or unbothered by Mr. Kluge's practice of using

9
Interestingly, Meriwether, the case upon which Mr. Kluge so vehemently relies as to the objective
conflict issue, could fairly be read to support the existence of an undue hardship. In describing the
relevant facts, the Sixth Circuit called the university's suggestion that the professor eliminate all
gendered language "a practical impossibility that would also alter the pedagogical environment in
his classroom" and noted that the professor was of the opinion that "eliminating pronouns
altogether was next to impossible, especially when teaching." Meriwether, 992 F.3d at 499-500.
10
To the extent that Mr. Kluge argues that the fact that he was permitted to use the last names only
accommodation for the full 2017-2018 school year demonstrates that the accommodation was not
unreasonable and did not result in undue hardship, he is incorrect. BCSC attempted in good faith
to provide an accommodation to Mr. Kluge. The fact that BCSC chose to endure the undue
hardship resulting from that accommodation for the remainder of the school year, rather than
ending Mr. Kluge's employment immediately when the hardship arose, does not support Mr.
Kluge's position that the accommodation was reasonable and was not an undue hardship. BCSC
simply honored its agreement.
44

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 Case: 21-2475 Document: 13 Filed: 10/01/2021 Pages: 112

last names only. BCSC has presented evidence that two specific students were affected by Mr.

Kluge's conduct and that other students and teachers complained. And, given that Mr. Kluge does

not dispute that refusing to affirm transgender students in their identity can cause emotional harm,

this harm is likely to be repeated each time a new transgender student joins Mr. Kluge's class (or,

as the case may be, chooses not to enroll in music or orchestra classes solely because of Mr. Kluge's

behavior). As a matter of law, this is sufficient to demonstrate undue hardship, because if BCSC

is not able to meet the needs of all of its students, it is incurring a more than de minimis cost to its

mission to provide adequate public education that is equally open to all. 11

ii. Potential for Liability

Title VII does not require employers to provide accommodations that would place them

"on the 'razor's edge' of liability." Matthews v. Wal-Mart Stores, Inc., 417 F. App'x 552, 554 (7th

Cir. 2011) (citing Flanagan v. Ashcroft, 316 F.3d 728, 729-30 (7th Cir. 2003)). See also E.E.O.C.

11
Mr. Kluge repeatedly characterizes Aidyn's, Sam's, and others' complaints about Mr. Kluge's
conduct as impermissible "heckler's vetoes." [E.g., Filing No. 153 at 19 ("The complaints from
Aidyn Sucec and Sam Willis are 'heckler's vetoes,' not evidence of an undue burden or a negative
impact on the learning environment.").] The "heckler's veto" doctrine is a concept of First
Amendment law providing that although the government may take action to preserve order when
unpopular speech is disruptive, it cannot restrict speech merely to prevent another party from
reacting adversely. See Ovadal v. City of Madison, 416 F.3d 531, 537 (7th Cir. 2005) ("The police
must permit the speech and control the crowd; there is no heckler's veto.") (internal quotations and
citation omitted). The Court has already dismissed Mr. Kluge's First Amendment freedom of
speech claim, [Filing No. 70 at 13-15], and Mr. Kluge has not provided any legal authority in
support of his belief that the heckler's veto doctrine applies in the Title VII context. In any event,
it makes no sense to apply that concept here. Mr. Kluge asserts that if the Court were to allow a
heckler's veto and conclude that "emotional discomfort constituted an undue burden, employers
would be able to skirt their duty to accommodate at will, simply by finding an employee offended
at the accommodation." [Filing No. 153 at 19.] But the Title VII standard requires the Court to
consider the impact of any proposed accommodation—including by taking into account the
reaction of any so-called "hecklers"—to determine whether undue hardship exists. And, as
discussed above, people were not merely "offended" by Mr. Kluge's conduct, the undisputed
evidence establishes that his conduct actively interfered with BCSC's mission to provide a safe
and supportive educational environment. Mr. Kluge's slippery slope argument is not persuasive.
45

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v. Oak-Rite Mfg. Corp., 2001 WL 1168156, at *10 (S.D. Ind. Aug. 27, 2001) (noting that undue

hardship can be established by showing "that the proposed accommodation would either cause or

increase . . . the risk of legal liability for the employer"); Sutton v. Providence St. Joseph Med.

Ctr., 192 F.3d 826, 830 (9th Cir. 1999) ("[C]ourts agree that an employer is not liable under Title

VII when accommodating an employee's religious beliefs would require the employer to violate

federal or state law.").

In Whitaker ex rel. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d

1034, 1038-39 (7th Cir. 2017), the Seventh Circuit considered whether the district court erred in

granting preliminary injunctive relief to a transgender student who brought claims under Title IX

of the Education Amendments Act of 1972 and the Fourteenth Amendment's Equal Protection

Clause, alleging that his school district discriminated against him by not permitting him to use the

boys' restroom. In affirming the district court's decision, the Seventh Circuit concluded that the

student was likely to succeed on his discrimination claims, the court recognized that discrimination

on the basis of transgender status is actionable under Title IX. Id. at 1047-50.

In this case, continuing to allow Mr. Kluge an accommodation that resulted in complaints

that transgender students felt targeted and dehumanized could potentially have subjected BCSC to

a Title IX discrimination lawsuit brought by a transgender student. 12 Whether such lawsuit would

12
Mr. Kluge emphasizes that there is no evidence that Ms. Gordon or any other BCSC employee
ever investigated claims of discrimination by transgender students. [E.g., Filing No. 153 at 29.]
However, there was never any question that Mr. Kluge was refusing to call transgender students
by their preferred pronouns or the names listed in PowerSchool, as Mr. Kluge himself initially and
repeatedly informed BCSC and BHS officials of his religious objections to doing so. In other
words, it is unclear why the BCSC administration would have needed to conduct any investigation
into students' complaints. Mr. Kluge not only confirmed that the complained of conduct was
occurring, he represented that he would not change his behavior, and expressed satisfaction when
the complaints occurred. Accordingly, the failure to investigate does not undercut BCSC's claim
that permitting the last names only accommodation increased its risk of being sued for
discrimination.

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ultimately have been successful is not for the Court to decide at this juncture, as it is sufficient that

the state of the law during Mr. Kluge's employment created a risk of liability, and BCSC

considered that risk in determining how to resolve Mr. Kluge's objections to the policies

concerning transgender students. 13 The increased risk of liability also constitutes an undue

hardship that Title VII does not require BCSC to bear.

In sum, BCSC has demonstrated as a matter of law that it cannot accommodate Mr. Kluge's

religious belief against referring to transgender students using their preferred names and pronouns

without incurring undue hardship. Accordingly, Mr. Kluge's Motion for Partial Summary

Judgment is DENIED, and BCSC's Cross-Motion for Summary Judgment is GRANTED as to

Mr. Kluge's failure to accommodate claim.

2. Retaliation Claim

In its Cross-Motion/Response, BCSC argues that Mr. Kluge cannot establish a prima face

case of retaliation because no reasonable jury could conclude that protected activity—specifically,

asking for religious accommodations in July 2017—was causally connected to Mr. Kluge's

employment ending in June 2018. [Filing No. 121 at 44-45.] BCSC points out that it never

rescinded its accommodation regarding uniforms, and there is no evidence of complaints

concerning that accommodation, which demonstrates that the last names only arrangement was

withdrawn because of complaints causing undue hardship, not because of hostility to Mr. Kluge's

religious beliefs or because of his request for accommodations. [Filing No. 121 at 45.] Even if

the Court determines that Mr. Kluge can establish a prima facie case of retaliation, BCSC argues,

13
Although the issue was not specifically raised by the parties, the Court notes that the United
States Supreme Court has recognized "the fundamental right of parents to make decisions
concerning the care, custody, and control of their children." Troxel v. Granville, 530 U.S. 57, 66
(2000). BCSC's Name Policy clearly respected that right, allowing a name change in PowerSchool
only with parental permission.
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summary judgment should be granted in BCSC's favor because it has articulated a legitimate

nondiscriminatory reason for its actions and Mr. Kluge has not submitted evidence from which a

reasonable jury could find pretext. [Filing No. 121 at45.] According to BCSC, the fact that it did

not disclose to Mr. Kluge the identity of the individuals who complained about the use of last

names only is not evidence of pretext, and Mr. Kluge's subjective perceptions that there was no

tension with students or faculty do not create a genuine issue of material fact as to pretext given

the evidence of complaints. [Filing No. 121 at 45-46.]

In his Response/Reply, Mr. Kluge asserts that he engaged in statutorily protected activity

by: (1) identifying a sincerely held religious belief that conflicted with the Name Policy;

(2) offering the last names only accommodation; and (3) asking the BCSC administration to

confirm in February 2018 that the last names only accommodation was still valid. [Filing No. 153

at 30.] He argues that, as a result of engaging in those activities, he "suffered an adverse

employment action when BCSC removed his last-names only accommodation without even

claiming any undue hardship, demanded his resignation unless he violated his beliefs, refused to

investigate his allegations of discrimination, and coerced him into submitting a conditional

resignation they promised not to process until a certain date." [Filing No. 153 at 30.]

In its Reply, BCSC argues that Mr. Kluge's Response/Reply "does not challenge [BCSC]'s

lack-of-pretext argument or otherwise attempt to demonstrate pretext," and therefore he has

waived any opposition to those arguments and such waiver is fatal to his retaliation claim. [Filing

No. 150 at 17.] BCSC also contends that Mr. Kluge's argument that retaliation is evidenced by

alleged misrepresentations related to Mr. Kluge's ability to submit a "conditional" resignation is

based on an inaccurate recitation of the facts, because it is undisputed that Ms. Gordon never told

Mr. Kluge that he could withdraw his resignation whenever he pleased, and in dismissing Mr.

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Kluge's state law fraud claim the Court has already concluded that Mr. Kluge did not condition his

resignation on anything. [Filing No. 150 at 17-18.]

"To succeed on a Title VII retaliation claim, a plaintiff must produce enough evidence for

a reasonable jury to conclude that (1) [he] engaged in a statutorily protected activity; (2) the

[employer] took a materially adverse action against [him]; and (3) there existed a but-for causal

connection between the two." Robertson v. Dep't of Health Servs., 949 F.3d 371, 378 (7th Cir.

2020) (internal quotations and citations omitted) (second alteration in original). Once the plaintiff

establishes a prima facie case of retaliation, the employer may produce evidence that would permit

a factfinder to conclude that it had a non-discriminatory reason for taking the adverse employment

action. Id. (citation omitted). If the employer does so, the burden shifts to the plaintiff to produce

evidence that would permit a factfinder to determine that the legitimate reason offered by the

employer was pretextual. Id.

At the outset, the Court notes that Mr. Kluge's briefing on his retaliation claim is meager,

totaling less than three pages and merely reiterating his version of the facts he believes to be

relevant without discussion of how those facts meet the requirements of a retaliation claim. 14 Mr.

Kluge also does not address the argument raised by BCSC that there is no evidence from which a

reasonable factfinder could infer pretext. These issues alone provide a sufficient basis to grant

summary judgment in favor of BCSC on the retaliation claim. See, e.g., Lee v. Chicago Youth

Centers, 69 F. Supp. 3d 885, 889 (N.D. Ill. 2014) (recognizing that Seventh Circuit precedent

"consistently holds that undeveloped, unsupported, perfunctory, or skeletal arguments in briefs are

14
Curiously, although Mr. Kluge did not move for summary judgment in his favor on this claim,
he also did not assert or attempt to show that summary judgment in BCSC's favor is inappropriate
because, for example, disputed issues of fact remain. [See Filing No. 153 at 30-32.]

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waived"). The Court finds Mr. Kluge has waived any argument in opposition to BCSC's motion

for summary judgment as to his retaliation claim, and grants its motion.

In addition, in concluding that Mr. Kluge's retaliation claim should not be dismissed for

failure to state a claim, the Court reasoned that it was plausible based on the allegations contained

in the Amended Complaint "that school officials, over time, became less inclined to tolerate Mr.

Kluge's religious beliefs and used the idea of student complaints as a pretext to withdraw the last-

names-only arrangement, refuse to provide another accommodation to which Mr. Kluge was

entitled, and force him to resign." [Filing No. 70 at 29.] The Court made clear, however, that it

was "assuming that Mr. Kluge's allegations concerning pretext [were] supported by a good-faith

basis for asserting them and warn[ed] that the revelation that they were not could have

consequences under Federal Rule of Civil Procedure 11 and 28 U.S.C § 1927." [Filing No. 70 at

29 n.9.] That warning makes Mr. Kluge's failure to attempt to produce evidence of pretext—or

even address BCSC's pretext argument at all in his Response/Reply brief—all the more perplexing.

In any event, Mr. Kluge has not presented evidence from which a reasonable factfinder

could conclude that a causal connection exists between Mr. Kluge's protected activity and his

ultimate resignation, 15 that any of BCSC's reasons for the actions it took against Mr. Kluge were

pretextual, or that any of BCSC's action were motivated by retaliatory animus. "It is not

unreasonable for [a school] to expect that its instructors will teach classes in a professional manner

that does not distress students," Smiley v. Columbia Coll. Chicago, 714 F.3d 998, 1002 (7th Cir.

15
Mr. Kluge also asserts in one of the headings in his brief that BCSC retaliated against him "by
misrepresenting material facts in order to secure his resignation." [Filing No. 153 at 30
(capitalization omitted).] For the reasons discussed above, the Court rejects this argument because
the evidence establishes that Ms. Gordon did not make any misrepresentations and that despite his
repeated assertions to the contrary, Mr. Kluge's resignation was not conditional, it merely had a
delayed effective date. The adverse actions at issue are BCSC's withdrawal of the last names only
accommodation and his forced resignation.
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2013), and nothing in the record suggests that BCSC officials were acting with any motive other

than to ensure such was the case. The undisputed evidence shows that Mr. Kluge initially sought

two accommodations based on his religious objections to affirming transgenderism—the last

names only accommodation and the exemption from handing out gender specific uniforms—and

received what he asked for. Only after BCSC received complaints about the last names only

accommodation did the administration seek to withdraw it, and even then, Mr. Kluge was not

immediately terminated but was permitted to finish out the academic year. Dr. Daghe offered to

write Mr. Kluge letters of recommendation to help him find a new position. BCSC never withdrew

the uniform accommodation, and there is nothing in the record to suggest that any member of the

school community complained about that accommodation. Furthermore, the evidence is

undisputed that BCSC and BHS administrators were acting because of complaints received from

the school community, and there is nothing in the record to suggest that the complaints were

fabricated or that another motive was possible. "Pretext does not exist if the decision-maker

honestly believed the nondiscriminatory reason for its employment action." Id. at 1005.

Based on the foregoing, BCSC is entitled to judgment as a matter of law on Mr. Kluge's

retaliation claim, and BCSC's Cross-Motion for Summary Judgment is GRANTED as to that

claim.

IV.
CONCLUSION

So, what's in a name? This Court is ill-equipped to answer that question definitively, but

for the reasons articulated in this Order, it concludes that a name carries with it enough importance

to overcome a public school corporation's duty to accommodate a teacher's sincerely held religious

beliefs against a policy that requires staff to use transgender students' preferred names when

supported by a parent and health care provider. Because BCSC did not coerce Mr. Kluge's

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resignation by misrepresentation and could not accommodate Mr. Kluge's religious beliefs without

sustaining undue hardship, and because Mr. Kluge has failed to make a meaningful argument or

adduce evidence in support of a claim for retaliation, BCSC's Cross-Motion for Summary

Judgment, [120], is GRANTED and Mr. Kluge's Motion for Partial Summary Judgment, [112], is

DENIED. And because empirical data from non-parties concerning the importance of honoring a

transgender student's preferred name and pronouns was not necessary to resolve the issues

currently before the Court, Movants' Motion for Leave to File Brief of Amici Curiae, [131], is also

DENIED. Finally, BCSC's Motion to Vacate and Continue Final Pre-Trial Conference and Trial,

[156], is DENIED AS MOOT. Final judgment shall issue accordingly.

Date: 7/12/2021

Distribution via ECF only to all counsel of record

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