Sterlinski v. The Catholic Bishop of Chicago

Filing 23

MEMORANDUM Opinion and Order signed by the Honorable Edmond E. Chang. For the reasons stated in the Opinion, the motion to dismiss 9 is granted, because the ministerial exception applies. But Plaintiff may file an amended complaint to try to fix t he complaint by 09/07/2016, so the dismissal is without prejudice for now. If Plaintiff does not file an amended complaint by 09/07/2016, then the dismissal will convert to a dismissal with prejudice and judgment will be entered. The status hearing of 08/30/2016 is reset to 09/15/2016 at 9 a.m. Emailed notice(slb, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
STANISLAW STERLINSKI,
Plaintiff,
v.
THE CATHOLIC BISHOP OF
CHICAGO, a Corporation Sole,
Defendant.

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No. 16 C 00596
Judge Edmond E. Chang

MEMORANDUM OPINION AND ORDER
Stanislaw Sterlinski brings this suit against the Catholic Bishop of Chicago
(in its corporate form), alleging national origin discrimination and retaliation
pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and
the Civil Rights Act of 1991, and age discrimination and retaliation pursuant to the
Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et. seq.1
R. 1, Compl.2 Specifically, Sterlinski alleges that the Catholic Bishop discriminated
against him on the bases of his age and national origin by demoting him from a fulltime position to a part-time one. Id. He further alleges that the Catholic Bishop
then retaliated against him for complaining about this alleged discrimination by
1The

Court has subject matter jurisdiction in this federal-question case under 28
U.S.C. § 1331. The defense argument on the “ministerial exception” is an affirmative
defense, not an argument for lack of subject matter jurisdiction. Hosanna-Tabor
Evangelical Lutheran Church & Sch. v. E.E.O.C., 132 S.Ct. 694, 709 n.4 (2012).
2Citations to the record are noted as “R.” followed by the docket number and, if
necessary, the page or paragraph number. Because the numbering in Sterlinski’s complaint
is inconsistent—some counts restart at Paragraph 1 (Counts 1, 2 and 5), one starts at
Paragraph 5 (Count 3), and one starts at Paragraph 21 (Count 4)—the Court cites to the
complaint generally and then, when necessary, includes in parentheses the relevant count
and paragraph number.

firing him. Id. The Catholic Bishop now moves to dismiss Sterlinski’s complaint
under Federal Rule of Civil Procedure 12(b)(6) on the ground that Sterlinski’s
claims are barred by the “ministerial exception.” R. 9, Def.’s Mot. to Dismiss. For
the reasons stated below, the Catholic Bishop’s motion is granted and the case is
dismissed, but without prejudice to give Sterlinski a chance to amend his complaint.
I. Background
For purposes of this motion, the Court accepts as true the allegations in
Sterlinski’s complaint.3 Erickson v. Pardus, 551 U.S. 89, 94 (2007). Sterlinski, who
is of Polish descent, was hired by the Catholic Bishop of Chicago in July 1992 as the
Director of Music at St. Stanislaus Bishop and Martyr Church. Compl. (Count 1
¶¶ 9-11)4;

R. 1-1,

Exh.

C,

Hiring

Contract.

Sterlinski’s

duties

included:

“[s]upervision of, and responsibility for, all music at liturgical celebrations”;
“[c]ooperat[ing] with [the] Parish Liturgy Committee … in the selection,
preparation, and teaching of music for the congregation”; “[f]urnishing … music and
accompaniment

at

weekend,

Holyday,

and

weekday

Masses”;

“[p]roviding

appropriate music for weddings and funerals”; rehearsing with the parish choir;
3Sterlinski

attaches a declaration to his response brief, which contains additional
allegations. R. 18, Pl.’s Resp. Br., Exh. 1, Sterlinski Decl. But when ruling on a Rule
12(b)(6) motion, the Court may generally consider only the plaintiff’s complaint. Rosenblum
v. Travelbyus.com Ltd., 299 F.3d 657, 661 (7th Cir. 2002); Metz v. Joe Rizza Imports, Inc.,
700 F. Supp. 2d 983, 988 (N.D. Ill. 2010). There is an exception to this rule, however.
Documents attached to a motion to dismiss (or to a plaintiff’s response) can become part of
the complaint pursuant to Federal Rule of Civil Procedure 10(c) “if they are referred to in
the plaintiff’s complaint and are central to his claim.” Wright v. Assoc. Ins. Cos. Inc., 29
F.3d 1244, 1248 (7th Cir. 1994); Metz, 700 F. Supp. 2d at 988. But Sterlinski never referred
to this declaration in his complaint. The Court, therefore, declines to consider Sterlinski’s
attached declaration in deciding this dismissal motion.
4Sterlinski repeats many of the same facts under each count in his complaint. For
convenience’s sake, the Court cites only to one count of the complaint in these instances.

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“[d]evelop[ing] and participat[ing] in a general music education program for [the
parish] and the school”; and maintaining his own skills and professional knowledge.
Hiring Contract at 1-2.
From the time he was hired up until his firing, Sterlinski alleges he fulfilled
his contract and met the expectations of his employer. Compl. (Count 1 ¶ 19). Yet,
in June 2014, Sterlinski was demoted from full-time to part-time, which reduced his
salary, schedule, and benefits. Id. (Count 1 ¶¶ 12, 14). Sterlinski was 68 years old at
the time of his demotion. Id. (Count 3 ¶ 9). The Catholic Bishop asserted the
demotion was due to a budgetary deficit. Id. (Count 1 ¶ 15). But Sterlinski contends
it was due to his national origin and age, citing to comments made by the church’s
pastor, namely, that he (the pastor) was not Polish but rather “Roman,” and that
Sterlinski was “getting old.” Id. (Count 1 ¶¶ 12-13; Count 3 ¶ 13). Following his
demotion, Sterlinski filed a discrimination charge with the Illinois Department of
Human Rights and the Equal Employment Opportunity Commission against the
Catholic Bishop in April 2015, alleging national origin and age discrimination, as
well as retaliation. See id. (Count 1 ¶ 5; Count 2 ¶ 5; Count 3 ¶ 6; Count 5 ¶ 5); R. 11, Exh. A, Discrimination Charge. In December 2015, Sterlinski was fired. Compl.
(Count 1 ¶ 17).
This lawsuit followed. Sterlinski alleges the Catholic Bishop discriminated
against him on the bases of age and national origin by demoting him for a pretextual reason, namely, budgetary concerns, in violation of Title VII and the ADEA.
Id. (Count 1 ¶¶ 1-21, Count 3 ¶¶ 5-20). Sterlinski also alleges the Catholic Bishop

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retaliated against him for complaining of this discrimination by firing him, in
violation of Title VII and the ADEA. Id. (Count 2 ¶¶ 1-23; Count 5 ¶¶ 1-21). Finally,
Sterlinski alleges the Catholic Bishop’s violations of the ADEA were intentional and
in reckless disregard for his rights. Id. (Count 4 ¶¶ 21-22). The Catholic Bishop now
moves to dismiss Sterlinski’s complaint under Rule 12(b)(6). Def.’s Mot. to Dismiss.
II. Legal Standard
Under Federal Rule of Civil Procedure 8(a)(2), a complaint generally need
only include “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). This short and plain statement must “give
the defendant fair notice of what the … claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original)
(internal quotation marks and citation omitted). The Seventh Circuit has explained
that this rule “reflects a liberal notice pleading regime, which is intended to ‘focus
litigation on the merits of a claim’ rather than on technicalities that might keep
plaintiffs out of court.” Brooks v. Ross, 578 F.3d 574, 580 (7th Cir. 2009) (quoting
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)).
“A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to
state a claim upon which relief may be granted.” Hallinan v. Fraternal Order of
Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). “[A] complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,
550 U.S. at 570). These allegations “must be enough to raise a right to relief above

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the speculative level.” Twombly, 550 U.S. at 555. The allegations that are entitled to
the assumption of truth are those that are factual, rather than mere legal
conclusions. Iqbal, 556 U.S. at 678-79.
To be precise, the defense’s dismissal motion relies on the “ministerial
exception,” which is actually an affirmative defense, Hosanna-Tabor Evangelical
Lutheran Church & Sch. v. E.E.O.C., 132 S.Ct. 694, 709 n.4 (2012), and thus is
neither an argument for lack of subject matter jurisdiction, id., nor, technically
speaking, an argument that the complaint fails to state a claim. But neither side
contends that the affirmative-defense nature of the ministerial exception makes a
difference, and the legal standard ends up being the same in this situation:
assuming the facts alleged are true, would the ministerial exception apply?
III. Analysis
The Catholic Bishop’s sole contention in its dismissal motion is that all of
Sterlinski’s claims are barred by the First Amendment’s “ministerial exception,”
because of the position Sterlinski held in the church. R. 10, Def.’s Br. at 1, 3-4. The
“ministerial exception,” which is grounded in the First Amendment’s Free Exercise
and Establishment Clauses, bars employment discrimination suits brought by
“ministers” against their religious institutions. Hosanna-Tabor Evangelical
Lutheran Church & Sch. v. E.E.O.C., 132 S.Ct. 694, 705-06 (2012). The exception is
designed to prevent government intrusion into a church’s decision of who can act as
its ministers. Id. at 709 (“The exception … ensures that the authority to select and
control who will minister to the faithful—a matter ‘strictly ecclesiastical[]’ … —is

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the church’s alone.” (internal citation omitted)). Although the exception was
originally developed in conjunction with Title VII, its application has been extended
to claims brought under the ADA and the ADEA as well. Id. at 705-07 (applying
exception to ADA claim); Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036, 104043 (7th Cir. 2006) (applying exception to ADEA claim). See also Hosanna-Tabor, 132
S.Ct. at 705-06 (“Since the passage of Title VII … and other employment
discrimination laws, the Courts of Appeals have uniformly recognized the existence
of a “ministerial exception,” … [w]e agree that there is such a[n] … exception.”).
Whether the exception applies in a given case depends on whether the
plaintiff qualifies as “a minister.” Id. at 709; see also Collette v. The Archdiocese of
Chicago, 2016 WL 4063167, at *2 (N.D. Ill. July 29, 2016). Of course, the exception
applies to individuals formally ordained as ministers, but it is not limited to just
those individuals. Alicea-Hernandez v. Catholic Bishop of Chi., 320 F.3d 698, 703
(7th Cir. 2003). In determining whether an employee qualifies as a minister, a
court’s focus is on the function of the plaintiff’s position, not just job title. HosannaTabor, 132 S.Ct. at 707; Alicea-Hernandez, 320 F.3d at 703. Because there is no
“rigid formula” for determining whether an employee is a minister, Hosanna-Tabor,
132 S.Ct. at 707, a court’s analysis is “both factual and case-specific.” Collette, 2016
WL 4063167, at *2. Considerations include: a plaintiff’s job duties, and whether
they “reflected a role in conveying the [religious institution’s] message and carrying
out its mission”; “the formal title given [to the plaintiff] by the Church”; “the
substance reflected in that title”; whether the plaintiff held herself out as a

6

minister; and whether the plaintiff performed “important religious functions … for
the Church.” Hosanna-Tabor, 132 S.Ct. at 708. Although other case-specific factors
can be considered, see Collette, 2016 WL 4063167, at *2; Cannata v. Catholic Diocese
of Austin, 700 F.3d 169, 177 (5th Cir. 2012), the Supreme Court has cautioned
against placing “too much emphasis” on a plaintiff’s “performance of secular duties,”
or on the amount of time a plaintiff’s secular duties consumed. Hosanna-Tabor, 132
S.Ct. at 708-09.
Here, Sterlinski was employed as the Director of Music. Hiring Contract at
1.5 He was responsible for—among other things—selecting and supervising “all
music at liturgical celebrations,” “[f]urnishing suitable music and accompaniment at
weekend, Holyday, and weekday Masses,” as well as at “weddings and funerals,”
and also for helping with the “selection, preparation and teaching of music for the
congregation.” Id. Although not a minister in title, those job duties spelled out in
the job contract “reflected a role in conveying the Church’s message.” HosannaTabor, 132 S.Ct. at 708. As the Seventh Circuit has pointed out, music is “‘an
integral part of many different religious traditions,’ including the Catholic
tradition.” Tomic, 442 F.3d at 1041 (quoting E.E.O.C. v. Roman Catholic Diocese of
Raleigh, N.C., 213 F.3d 795, 802–03 (4th Cir. 2000)). It is “a vital means of
expressing and celebrating those beliefs which a religious community holds most
sacred.” Id. at 1040-41. By selecting and supervising the music that was to be
played at masses and other liturgical celebrations, Sterlinski performed an

5Sterlinski

attached a copy of the hiring contract to his complaint. R. 1, Exh. 1.

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important role in conveying the Catholic Church’s message through the chosen
musical expression, which means that he had ministerial duties. Id.; Roman
Catholic Diocese, 213 F.3d at 797 (affirming dismissal of director of music ministry’s
Title VII claims because her duties “consisted of the selection, presentation, and
teaching of music, which is integral to the spiritual and pastoral mission of the
Catholic Church”); Starkman v. Evans, 198 F.3d 173, 175-76 (5th Cir. 1997)
(extending ministerial exception to choirmaster and director of music who “clearly
performed tasks that were ‘traditionally ecclesiastical or religious”). Cf. Collette,
2016 WL 4063167, at *2-3 (denying defendant’s dismissal motion where music
director’s duties were unclear, and director alleged “he was not responsible for …
selecting the music played during masses and services,” or for “select[ing] []or
approv[ing] music for masses” (emphasis added)).
In Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036 (7th Cir. 2006), the
Seventh Circuit faced a similar situation.6 There, the plaintiff, Richard Tomic,
served as the music director and organist of the Catholic diocese in Peoria. Id. at
1037. His duties included playing the organ at masses, preparing all music for
masses and liturgies, and overseeing the chorus. Id. He was fired after getting into
6It

is true that Tomic was abrogated by the Supreme Court’s decision in HosannaTabor, but only on alternative grounds—namely, whether the ministerial exception is
jurisdictional in nature. The Seventh Circuit concluded that it was, Tomic, 442 F.3d at
1038-39, but the Supreme Court disagreed, concluding instead that the exception operated
as an affirmative defense, not as a jurisdictional bar, Hosanna-Tabor, 132 S.Ct. at 709 n.4.
Hosanna-Tabor did not undermine the relevant aspects of the Seventh Circuit’s decision in
Tomic. In Hosanna-Tabor, the Supreme Court did narrow the focus of the ministerial
exception’s analysis to the employee’s title, training, and role (and other similar factors),
but that was already much of what Tomic relied on in its analysis. As a result, Tomic’s
discussion on the religious nature of a music director’s duties remains both persuasive and
on-point.

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a dispute with the bishop’s assistant over Easter music, and was replaced with a
much younger person. Id. at 1037. Tomic sued the diocese for alleged agediscrimination. Id. After the district court dismissed the case based on the
ministerial exception, Tomic appealed. Id. The Seventh Circuit affirmed the
dismissal, explaining that among the plaintiff’s duties “was that of selecting music
to be played at various masses.” Id. at 1040. This duty, the Seventh Circuit
explained, was a religious one, “requir[ing] [the plaintiff] to make a discretionary
religious judgment because the Catholic Church does not have rules specifying what
piece of music is to be played at each type of mass.” Id. The Seventh Circuit then
went on to explain, as discussed above, the importance of music in the Catholic
Church. Id. at 1040-41. The Seventh Circuit also used Tomic’s case, and in
particular, the reason for his firing, as an example for why the ministerial exception
is still needed in employment discrimination cases. (As discussed later in the
Opinion, however, the Supreme Court has taken a broader view of the exception’s
purpose.) The Seventh Circuit explained that if Tomic’s case were allowed to
proceed, then the court would invariably be propelled “into a controversy,
quintessentially religious, over what is suitable music for Easter services.” Id. at
1040. This, the Seventh Circuit stated, would require the court “to resolve a
theological dispute,” exactly what the exception is designed to prevent. Id. Based on
these facts, the Seventh Circuit held that Tomic, as music director, fell under the
ministerial exception.

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Sterlinski’s duties as Director of Music mirror Tomic’s duties; both men were
charged with selecting suitable music, furnishing the music at mass, and rehearsing
with the choir. Id. at 1037; Hiring Contract at 1-2. Because Sterlinski was employed
by the Catholic Church like Tomic was, and similarly responsible for selecting the
music to be played at mass, he too was required to regularly make “discretionary
religious judgment[s].” Tomic, 442 F.3d at 1040. These judgment-calls made by
Sterlinski about what music to play and how to play it made him an integral part of
the Church, and put him in a role that affected the religious experience of all the
Church’s parishioners. Thus, like Tomic, Sterlinski’s duties placed him within the
confines of the ministerial exception.
Sterlinski offers several arguments for why he should not be subject to the
ministerial exception, but none are persuasive. First, Sterlinski argues that unlike
the plaintiff in Tomic, he was fired for financial reasons, not due to any theological
dispute. R. 18, Pl.’s Resp. Br. at 3. Citing to DeMarco v. Holy Cross High School, 4
F.3d 166 (2d Cir. 1993), Sterlinski asserts that given the alleged reason for his
termination, the Court would not have to “put into issue the validity or truthfulness
of Catholic religious teaching.” Pl.’s Resp. Br. at 3 (citing DeMarco, 4 F.3d at 172).
But even assuming that to be true, an employer’s alleged reason for the adverse
employment action plays no role in the exception’s applicability. To be sure, the
alleged reasons for the employment action are mentioned in both DeMarco and
Tomic, but both of those cases were decided before the Supreme Court issued its
decision in Hosanna-Tabor in 2012. There, the Supreme Court made clear that the

10

purpose of the ministerial exception “is not to safeguard a church’s decision to fire a
minister only when it is made for a religious reason,” as Sterlinski now suggests,
but rather to “ensure[] that the authority to select and control who will minister to
the faithful … is the church’s alone.” 132 S.Ct. at 709 (emphases added). The upshot
of this description of the exception is that a religious institution’s reason for firing
one of its employees is not a factor that weighs into the exception’s analysis.
The Seventh Circuit’s discussion in Tomic is not really contrary to this. To be
sure, the Seventh Circuit did discuss the reason for the plaintiff’s firing in Tomic—
namely, disagreement over Easter music—but it did so to give a stark example of
why the ministerial exception was particularly applicable in Tomic’s situation, not
to create an independent, threshold requirement for the applicability of the
ministerial exception. Also, Tomic mentioned the employer’s reason for the firing in
order to distinguish the plaintiff’s case from DeMarco, in which the Second Circuit
took into account the alleged reason for the employment action and the likelihood
that a theological dispute would arise if the case were to proceed. Tomic, 442 F.3d at
1040-41; DeMarco, 4 F.3d at 172. What’s more, given prior Seventh Circuit
precedent, it is unlikely that the Seventh Circuit intended to require that the
employer’s alleged reason be theologically based in order to invoke the ministerial
exception. Even before its decision in Tomic, the Seventh Circuit had already made
clear that, in applying the ministerial exception, “[i]t is … not [the court’s] role to
determine whether the Church had a secular or religious reason for the alleged
mistreatment of [the plaintiff]. The only question is that of the appropriate

11

characterization of [the plaintiff’s] position.” Alicea-Hernandez, 320 F.3d at 703.
This aligns with the principles set out by the Supreme Court in Hosanna-Tabor,
which similarly instructs that a court’s analysis should be focused only on whether
the plaintiff functioned as a minister. Accordingly, the fact that the defense’s
alleged reason for the firing is purely secular does not alter whether the ministerial
exception applies.
Next, Sterlinski argues that although his job title was Director of Music, he
was not truly a minister because he did not have independent authority over the
music selected; he could only recommend music for liturgies. Pl.’s Resp. Br. at 4.
Sterlinski states that liturgical selections were often dictated by the pastor, the
Archdiocese, or the Church. Id. But a similar argument was advanced in Tomic and
rejected. In Tomic, the Seventh Circuit explained that the duty to select and play
appropriate liturgical music is a traditionally religious role. 422 F.3d at 1040-41.
And although the plaintiff’s music choices in Tomic could be overridden by the
bishop or rector—similar to how Sterlinski’s selections could be overridden here—
the Seventh Circuit held that this did not change the fact that the plaintiff held a
position with a ministerial duty. Id. at 1041. The same can be said of Sterlinski. His
role as Director of Music still directly impacted the religious experience of all
parishioners, and even if Sterlinski did not have absolute authority over what music
to select, he was still tasked with contributing to the music selection process and
with deciding how the music was to be played and expressed during liturgical
celebrations. So, although Sterlinski did not have complete autonomy in his choice

12

of music, he still acted in a ministerial capacity and falls under the ministerial
exception.
Finally, Sterlinski argues that at the time he was fired, he had been demoted
from his position of Director of Music. Pl.’s Resp. Br. at 3. He claims that his “duties
were altered considerably in the last year of his employment: so much so that, even
if he had been covered by the ministerial exception prior to his demotion … , he was
… no longer covered by [the] exception after [his] demotion.” Id. But outside of
alleging that his demotion resulted in a reduced salary, schedule, and benefits,
Compl. (Count 1 ¶ 14), the complaint actually does not allege how this demotion
impacted his actual job duties, if it did at all. In somewhat of a contradiction, the
complaint also alleges that Sterlinski was still employed as Director of Music at the
time of his firing, id. (Count 1 ¶ 11), which suggests that Sterlinski was still tasked
with performing the duties outlined in his contract. Having said that, the Court will
give Sterlinksi a chance to amend the complaint; leave should be freely given at this
early stage. Indeed, depending on what Sterlinksi alleges in the amended
complaint, it might be more appropriate to address the ministerial exception after
limited discovery and an early summary judgment motion, rather than another
dismissal motion invoking what is really an affirmative defense. (When Sterlinski
attached the hiring contract to his complaint, he made it a lot easier for the defense
to file the dismissal motion before discovery.) Of course, if Sterlinksi cannot in good
faith make allegations to fix the problems discussed in the Opinion, then the

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dismissal will convert into a dismissal with prejudice. The amended complaint is
due by September 7, 2016.
IV. Conclusion
For the reasons stated above, Sterlinski’s complaint is dismissed without
prejudice. If Sterlinski wishes to amend his complaint, then he must file the
amended complaint by September 7, 2016. If no amended complaint is filed by that
date, then Sterlinski’s case will be dismissed with prejudice and judgment will be
entered. The status hearing of August 30, 2016, is reset to September 15, 2016, at 9
a.m.

ENTERED:

s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: August 23, 2016

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