Nolen v. The Diocese of Birmingham in Alabama et al

Filing 60

MEMORANDUM OPINION and ORDER re 47 the Diocese's Motion for Summary Judgment; for reasons stated within the Diocese's Motion for Summary Judgment, 47 , is GRANTED as to Nolen's § 1981 claim and her claim for breach of contra ct; These claims are DISMISSED with prejudice; Nolen's remaining state law claims are DISMISSED without prejudice; Dismissal of these claims will not result in any significant additional costs to the parties; The clerk is DIRECTED to close this file. Signed by Judge Abdul K Kallon on 09/01/2017. (KBB)

FILED
2017 Sep-01 AM 09:55
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
MARIA NOLEN,

)
)
Plaintiff,
)
)
vs.
)
THE DIOCESE OF BIRMINGHAM )
)
IN ALABAMA, et al.,
)
)
Defendants.

Civil Action Number
5:16-cv-00238-AKK

MEMORANDUM OPINION AND ORDER
This case arises out of a dispute between Maria Nolen, the former principal
of St. Ann Catholic School (“St. Ann”), a small catholic grammar school located in
Decatur, Alabama, and her previous employer, the Diocese of Birmingham (the
“Diocese”), an administrative body that controls the operations of the Roman
Catholic Church in much of the state. Doc. 36 at 2; Doc. 48 at 1.1 Nolen alleges
that St. Ann and its employees discriminated against Hispanic students, and that
the Diocese discharged her in retaliation for her attempts to stop these practices, a
violation of 42 U.S.C. § 1981. Id. at 9. Nolen also raises three related state law
claims: breach of contract; intentional interference with a contract; and defamation
per se. Id. at 11–14. The Diocese has filed a motion for summary judgment on all
1

Nolen’s Second Amended Complaint names various other organizational and individual
defendants, but for the sake of simplicity, the court will treat the Diocese as the sole defendant in
this case.
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of Nolen’s claims, and that motion is now ripe for review.2 Based on a thorough
review of the law and evidence, the court finds that summary judgment in favor of
the Diocese is due to be granted on Nolen’s § 1981 claim, the only claim over
which this court has original jurisdiction, as well as on her breach of contract
claim.

In light of this ruling, the court declines to exercise supplemental

jurisdiction over Nolen’s remaining state law claims and dismisses those claims
without prejudice.
II. STANDARD OF REVIEW
Summary judgment is properly granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A dispute about a material fact is genuine
“if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

2

The Diocese filed its motion for summary judgment on June 27, 2017. Doc. 47 at 1. Per this
court’s Scheduling Order, Nolen had 21 days from that date to file a responsive pleading. Doc.
18 at 7. Nolen requested, and was granted, a three day extension of time to file her response.
Doc. 52. Nolen then requested two additional extensions, unilaterally extending her filing
deadline. Doc. 59 at 1. Those additional motions were granted in part, and this court set a final
filing deadline of July 28, 2017 for Nolen’s response. Doc. 57 at 2. Rather than comply with this
ruling, Nolen requested yet another extension of time, doc. 58, which the court denied, doc. 59.
Accordingly, this case was deemed submitted on Defendant’s motion for summary judgment.
Doc. 59 at 2. Pursuant to Rule 56(e) of the Federal Rules of Civil Procedure, if a party fails to
“properly support an assertion of fact or fails to properly address another party’s assertion of
fact,” summary judgment is appropriately granted if the movant carries their burden.
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“The evidence of the non-movant is to be believed, and all justifiable
inferences are to be drawn in [her] favor.”

Id. at 255.

However, “mere

conclusions and unsupported factual allegations are legally insufficient to defeat a
summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir.
2005) (per curiam). “[A] . . . ‘scintilla of evidence in support of the nonmoving
party will not suffice to overcome a motion for summary judgment.’” Melton v.
Abston, 841 F.3d 1207, 1219 (11th Cir. 2016) (quoting Young v. City of Palm Bay,
358 F.3d 859, 860 (11th Cir. 2004)).
III. FACTS
The Diocese hired Nolen in July of 2012 to serve as St. Ann’s principal.
Doc. 48 at 1; Doc. 36 at 2. As part of her hiring, Nolen signed a one year
renewable contract providing that she could be discharged only for cause. Doc.
36-1 at 1.3 The contract also bound Nolen to observe the policies of the “Diocesan
Catholic School Board,” and notified her that she was considered “a representative
of the Diocese.” Id. In her role as principal, Nolen “made most employment,
financial, and educational decisions for [St. Ann].” Doc. 36 at 5. She was also
charged with promoting a Christian atmosphere within the school and insuring that
3

The contract explains that the “failure of the Employee to perform services expected under this
contract in a satisfactory manner or conduct or omissions in the personal and professional
activities of the Employee . . . in violation of regulations of the Diocese . . . [or] failure of the
employee to provide complete and accurate information about . . . teaching credentials . . . or
other background information” all provide cause for termination. Doc. 36-1 at 1.
3

the teachers integrated Christian values into their lesson planning. Doc. 49-2 at 10,
14–15. Nolen also frequently led the school in prayer and organized a variety of
religious activities for students and faculty. Id. at 11–14.
At the time Nolen was hired, St. Ann was experiencing financial hardship
and had seen its enrollment decrease significantly. Doc. 36 at 4. To deal with this
situation, Nolen began an aggressive outreach program marketing the school to the
local Hispanic community. Nolen also arranged access to scholarship funds from a
number of Student Scholarship Organizations to assist under-privileged students
meet St. Ann’s cost of attendance. Id. at 5. As the student body increased in
number, Nolen decided to hire a secretary, Veronique Edington (“Edington”), to
assist with her administrative duties.

Id. Edington’s husband is a member of St.

Ann’s advisory board and also a financial advisor to the Diocese.
Nolen asserts that Edington “made many derogatory comments toward . . .
Hispanic students, families, and scholarship applicants.” Id. at 5–6. Allegedly
Edington also repeatedly declined to assist Nolen with school programs involving
Hispanic students and families. Id. at 6. As a result, Nolen reprimanded Edington
and also reported these incidents to the superintendent of the Diocese’s parochial
school system, Fran Lawlor, as well as the cleric in charge of St. Ann, Father
Raymond Remke. Id. at 6–7. On October 24, 2014, Edington resigned from her
position after a meeting with Nolen and the system superintendent addressing her
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behavior. Id. at 7. Purportedly, St. Ann’s advisory board, on which Edington’s
husband served, began expressing anti-Hispanic sentiment and growing hostility
toward Nolen following Edington’s resignation. Id.
On December 10, 2014, Father Remke, Nolen’s direct supervisor, accused
Nolen of embezzlement and demanded her immediate resignation. Id. Two days
later, Father Remke met with Nolen and required her to sign a letter resigning her
position. Id. It is undisputed that during her tenure at St. Ann Nolen wrote checks
to herself even after being instructed not to do so. Doc. 49-2 at 15, 51. It is also
undisputed that on at least two occasions Nolen improperly requested
reimbursement for mileage well in excess of actual distance travelled. Id. at 48,
52.4 Further, in the summer of 2014, St. Ann learned that Nolen was not even
properly certified to serve as a principal in Alabama. Id. at 30. The school
prompted Nolen to complete the certification process as soon as possible, but she
failed the certifying examination held in August of 2014, and had not retaken the
test when she resigned in December of that same year. Id. at 30–31.
IV. DISCUSSION
The heart of Nolen’s complaint is her allegation that her attempts to protect
Hispanic students and families at St. Ann from racial discrimination resulted in her
4

St. Ann’s bookkeeper, Marina Gauthier, also noted many other accounting discrepancies
regarding Nolen’s use of school funds. Doc. 49-9 at 14–15.
5

retaliatory discharge in violation of 42 U.S.C. § 1981. More specifically, Nolen
asserts that she sought to curtail discriminatory anti-Hispanic behavior at St. Ann’s
and, in particular, repeatedly confronted her secretary Edington, over her
discriminatory actions and remarks. Allegedly, these efforts caused the school to
retaliate against Nolen and eventually resulted in her forced resignation.

In

response, the Diocese contends that the First Amendment to the United States
Constitution creates a ministerial exception precluding this court from applying
federal anti-discrimination law to employment disputes arising between a church
and one of its ministers.

Because, the Diocese argues, Nolen qualifies as a

minister, the ministerial exception applies to bar review of her § 1981 claim.
The religious clauses of the First Amendment read as follows: “Congress
shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof.” U.S. CONST. amend. I. While the internal tension between these
two constitutional commands has been well-documented, the Supreme Court has
made clear that “[b]oth Religion Clauses bar the government from interfering with
the decision of a religious group to fire one of its ministers.” Hosanna-Tabor
Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S 171, 181 (2012). This
constitutional grounded ministerial exception provides “that the authority to select
and control who will minister to the faithful—a matter strictly ecclesiastical—is

6

the church’s alone.”

5

Id. at 195 (internal citation omitted).

Indeed, in the

ministerial context, a flat prohibition on court interference with employment
decisions makes sense because the judiciary is particularly ill-equipped to conduct
a post-hoc inquiry into whether an employment dispute between a minister and a
religious organization is premised on secular rather than religious grounds. See
Paul Horwitz, Act III of the Ministerial Exception, 106 NW. U. L. Rev. 973, 979
(2012) (explaining that “judges cannot evaluate the kinds of religious questions
that come up in employment discrimination cases involving ministerial employees
. . . [because they] are simply incompetent to address them”).
Turning to the facts, the parties do not dispute that the Diocese is a religious
organization and is entitled to assert the ministerial exception as an affirmative
defense. The only question before this court related to the application of the
exception is whether Nolen, the principal of a Catholic parochial school, qualifies
as a minister. Although not committing to any specific formula for deciding that
question, the Supreme Court has delineated at least four factors for consideration:
“[1] the formal title given . . . by the Church, [2] the substance reflected in that

5

Although Hosanna-Tabor dealt with a claim brought under the Americans with Disabilities
Act, 104 Stat. 327, 42 U.S.C. § 12101 et seq. (1990), this circuit also applies the ministerial
exception to employment actions brought under § 1981. See Simpson v. Wells Lamont Corp.,
494 F.2d 490, 492–94 (5th Cir. 1974); see also McCants v. Alabama-West Fla. Conf. of United
Methodist Church, Inc., 372 F. App’x 39, 40–42 (11th Cir. 2010) (explaining that plaintiff’s §
1981 claim is “barred by the ministerial exception emanating from the Establishment and Free
Exercise Clauses of the First Amendment”).
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title, [3] [the employee’s] own use of that title, and [4] the important religious
functions . . . performed for the Church.”

Conlon v. InterVarsity Christian

Fellowship, 777 F.3d 829, 834 (6th Cir. 2015) (quoting Hosanna-Tabor, 565 U.S.
at 192).
Of these factors, the primary focus is typically placed on an analysis of the
“function performed by persons who work for religious bodies.” Hosanna-Tabor,
565 U.S. at 198 (Alito J., concurring); see also Fratello v. Archdiocese of New
York, 863 F.3d 190, 205 (2d Cir. 2017) (explaining that a functional analysis
should primarily determine whether an employee qualifies as a minister).
Significantly, and relevant here, the title of minister may be applied to many
employees of a religious organization and “is not limited to the head of a religious
congregation.” Hosana-Tabor, 565 U.S. at 190; see also Cannata v. Catholic
Diocese of Austin, 700 F.3d 169, 180 (5th Cir. 2012) (relying on a church’s music
directors important role in “furthering the mission of the church and conveying its
message to its congregants” to justify application of ministerial exception);
Rayburn v. Gen. Conf. of Seventh-Day Adventists, 772 F.2d 1164, 1168–69 (4th
Cir. 1985) (holding that if the position is “important to the spiritual and pastoral
mission of the church” the employee may properly be considered a minister for
purposes of the ministerial exception). Moreover, an employee can still qualify as
a minister even if she routinely performs administrative tasks in addition to her
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ministerial duties. See Hosanna-Tabor, 565 U.S. at 193 (rejecting the view that
ministers must serve exclusively religious functions).
Here, the undisputed record evidence leaves little doubt that Nolen’s role as
principal of a Catholic grammar school falls within the general ambit of the
ministerial exception.

First, the Diocesan School Mission Statement and the

related Policy Manual for Catholic Schools, both applicable to Nolen via her
employment contract, highlight the vital role education plays within the Catholic
Church.

For example, the Policy Manual provides, among other things, that

“[r]eligious instruction and formative experiences are a primary and essential part
of the school’s program directed toward leading the student to deepening faith and
commitment to Christ.” Doc. 49-10 at 1. The Manual also provides that “the
development of Christian values as well as the principles of Church teachings . . .
permeate and integrate all the subject areas.” Id.
These documents also delineate the specifically religious functions the
principal plays as part of her role in leading the school community. Among other
things, the principal is instructed to “provide a Christian perspective of a life
centered on Jesus Christ” and must insure “that teachers integrate Christian truths
and values in the subjects taught . . . [in addition to making] sure that classrooms
incorporate objects of the Catholic faith into the learning environment.” Doc. 49-4
at 44. Critically, Nolen’s deposition testimony reveals that these broad policy
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statements accurately reflected her duties as she understood them. Specifically,
Nolen testified that (1) she was intimately involved in the school’s religious
mission, and more generally in the Catholic community centered around the
school; (2) she frequently led the school in prayer, organized various religious
events, and oversaw the religious department, a responsibility which included the
development of appropriate lesson plans; (3) she sometimes taught religious
classes for adults at the school; and (4) she viewed herself as an official
representative of the Catholic Church in the broader community. Doc. 49-2 at 11–
15.
Although Nolen lacks a formal religious title and performed non-religious
administrative tasks, these facts conclusively demonstrate that she possessed a
significant “role in conveying the Church’s message and carrying out its mission.”
Hosanna-Tabor, 565 U.S. at 192. Therefore, in light of the overwhelming and
undisputed evidence in the record, this court finds that Nolen qualifies as a
minister and that resolution of her § 1981 claim would require judicial
encroachment into the internal affairs of the Roman Catholic Church.6 While

6

This conclusion is not at all remarkable as numerous courts have similarly concluded that the
ministerial exception applies to principals and teachers working in religiously affiliated schools.
See, e.g., Fratello, 863 F.3d at 206 (holding that although the “lay-principal” of a catholic school
lacked a formal religious title “the record makes clear that she served many religious functions to
advance the School’s Roman Catholic mission”); Cannata, 700 F.3d at 178–79 (finding that a
music director totally lacking religious education, training and experience qualified for the
ministerial exception because the role of a church musician is to draw “the congregation closer to
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society’s interest in the enforcement of laws regulating employment relationships
is undoubtedly vital, the First Amendment makes clear “[t]he church must be free
to choose those who will guide it on its way.” Hosanna-Tabor, 565 U.S. at 196.
Thus, Nolen’s claim for retaliation under § 1981 is foreclosed as a matter of law,7
and summary judgment in favor of the Diocese is appropriately granted.8

Christ, and allowed the congregation to act together in celebration by singing praises and hymns
to the Lord, which in turn strengthens the faith that is in them”).
7
This court notes that there is some authority indicating that the ministerial exception also
applies to breach of contract claims, at least to the extent those claims concern the ability of a
religious organization to select its ministers. See Hutchison v. Thomas, 789 F.2d 392, 393, 396
(6th Cir. 1986) (affirming dismissal of a breach of contract claim because resolution of the claim
involved “internal church discipline, faith, and organization, all of which are governed by
ecclesiastical rule, custom, and law”); see also Nevius v. Africa Inland Mission Int’l, 511 F.
Supp. 2d 114, 120 (D.D.C. 2007) (explaining that it could not resolve a breach of contract claim
against a church because “the court’s inquiry in this matter would tread too closely to religious
affairs”). Accordingly, this court concludes that the ministerial exception also applies to Nolen’s
breach of contract claim as resolution of that claim would require significant intrusion into
internal church policy, an area not subject to interference by the state. Further, as noted infra at
n.8, Nolen has failed to contest the numerous facts in the record showing the Diocese had cause
to discharge her. Accordingly, Nolen’s breach of contract claim also fails as a matter of law and
is due to be dismissed.
8
Alternatively, the Diocese argues that even if the ministerial exception does not apply, St.
Ann’s had good cause to discharge Nolen because of her failure to satisfactorily fulfill the
functions of her position at the school. Section 1981 retaliation claims are governed by the
familiar “tripartite analytical framework developed by the Supreme Court in McDonnel Douglas
Corp. v. Green.” Bryant v. Jones, 575 F.3d 1281, 1307 (11th Cir. 2009). This framework
requires the plaintiff to first establish a prima facie case creating a presumption that any adverse
employment action suffered was the result of retaliation. Id. at 1307–08. The burden of
production then shifts to the defendant to rebut the presumption by “articulating a legitimate,
non-discriminatory reason for the adverse employment action.” Id. at 1308. Finally, to prevail,
the plaintiff must show that the defendant’s proffered reason is a mere “pretext to mask
discriminatory actions.” Id. Here, the Diocese has presented numerous legitimate reasons for
Nolen’s discharge, including the repeated misuse of school funds and the failure to meet
certification requirements in the State of Alabama. Doc. 49-2 at 15, 30, 51. Either failing would
provide the school with legitimate cause to terminate Nolen under the terms of her employment
contract. Doc. 36-1 at 1. Despite repeated opportunities to do so, Nolen has presented no
evidence at all to demonstrate St. Ann’s proffered reasons for her discharge are pretextual.
Accordingly, her retaliatory discharge claim under § 1981 fails as a matter of law.
11

In light of this court’s decision to grant summary judgment in favor of the
Diocese on both Nolen’s § 1981 claim and her claim for breach of contract, only
Nolen’s defamation and intentional interference with a contract claims, each
governed by state law, remain. As a general matter, “[i]n any civil action of which
the district courts have original jurisdiction, [they also] have supplemental
jurisdiction over all other claims [forming] part of the same case or controversy
under Article III of the United States Constitution.” 28 U.S.C. §1367(a). However,
after “the district court has dismissed all the claims over which it has original
jurisdiction,” supplemental jurisdiction over any remaining claims may properly be
denied. 28 U.S.C. § 1367(c)(3).
The Supreme Court has instructed that when all federal-law claims are
eliminated before trial, “the balance of factors to be considered9 . . . will point
toward declining to exercise jurisdiction over the remaining state-law claims.”
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988); see also United
Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966) (explaining “if the
federal claims are dismissed before trial, even though not insubstantial in a
jurisdictional sense, the state claims should be dismissed as well”). 10 Additionally

9

These factors are “judicial economy, convenience, fairness, and comity.” Carnegie-Mellon
Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988).
10
Since the Supreme Court decision in Cohill the principles of supplemental jurisdiction have
been codified in § 1367, but the Eleventh Circuit has explained that the factors the Supreme
12

the resolution of Nolen’s remaining claims depends exclusively on questions of
state law, and the Eleventh Circuit has instructed that “[s]tate courts, not federal
courts, should be the final arbiters of state law.” Baggett v. First Nat’l Bank of
Gainesville, 117 F.3d 1342, 1353 (11th Cir. 1997). Therefore, because the law
permits Nolen to toll the statute of limitations under certain circumstances, the
considerations of judicial economy, fairness, and convenience all strongly tilt in
favor of dismissal.11 Accordingly, the court dismisses Nolen’s remaining claims of
defamation per se and intentional interference with a contract without prejudice so
that she may refile in state court thus enabling Alabama courts to properly
determine the future course of Alabama law. See Crosby v. Paulk, 187 F.3d 1339,
1352 (11th Cir. 1999) (explaining if state-law claims are dismissed on
jurisdictional grounds “they should be dismissed without prejudice so that the
claims may be refiled in the appropriate state court”).
V. CONCLUSION AND ORDER
For the foregoing reasons, the Diocese’s Motion for Summary Judgment,
Doc. 47, is GRANTED as to Nolen’s § 1981 claim and her claim for breach of

Court has previously articulated continue to apply. See Palmer v. Hosp. Auth. of Randolph
County, 22 F. 3d 1559, 1569 (11th Cir. 1994).
11
Dismissal of these claims will not result in any significant additional costs to the parties.
Discovery is complete on both of Nolen’s surviving claims, and, as a result, the parties will not
have to take any depositions or exchange any paper discovery. In fact, the Defendants can
simply refile their motion for summary judgment in state court and request a ruling on the basis
of the evidence already submitted to this court.
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contract. These claims are DISMISSED with prejudice. Nolen’s remaining state
law claims are DISMISSED without prejudice. The clerk is DIRECTED to close
this file.
DONE the 1st day of September, 2017.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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