Curl v. Beltsville Adventist School et al
Filing
19
MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 8/15/2016. (kns, Deputy Clerk)
IN THE UNITED STATES DISTRICT
FOR THE DISTRICT OF MARYL
Southern Division
FILED
STRICT COURT
T OF MARYLAND
205 AUG 15 P b
CLERICS OFFICE
AT GRED-2ELT
DORIS R.S. CURL,
FiY
Plaintiff,
v.
IIPHY
Case No.: GM-15-3133
BELTSVILLE ADVENTIST SCHOOL.,
et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Doris R.S. Curl initiated the present action in the Circuit Court for Prince
George's County, Maryland, alleging various federal employment discrimination and state law
claims against her former employers, the Beltsville Adventist School and the Potomac
Conference Corporation of Seventh-day Adventists (collectively, "Defendants-). ECF No. 2.
Defendants filed a Motion to Dismiss, or, in the Alternative, Motion for Summary Judgment in
state court before removing the action to this Court. ECF Nos. 1 & 6. Defendants' Motion is now
pending before this Court, along with Plaintiffs Motion to Remand the action to.state court. ECF
No. 11. No hearing is necessary to resolve these motions. See Loc. R. 105.6 (D. Md.). Although
Plaintiff's Motion to Remand will be denied, the Court grants Defendants' Motion in part,
dismissing Plaintiffs claims arising under federal law, and Plaintiffs remaining claims will be
remanded to state court pursuant to 28 U.S.C. § 1367.
I.
BACKGROUND'
The Potomac Conference Corporation of Seventh-day Adventists ("Potomac
Conference") is a religious organization that operates Seventh-day Adventist churches and
schools in the District of Columbia, Virginia, and Maryland. ECF No. 2 ¶ 3; ECF No. 6-2 ¶ 2A.
One of the schools that the Potomac Conferende operates is the Beltsville Adventist School (the
"School-), a religious school located in Prince George's County, Maryland that educates students
in kindergarten through eighth grade. ECF No. 2 ¶IJ 2-3; ECF No. 6-2 if 2B.
This action arises out of Plaintiff's termination from her employment as a music teacher
at the School, where, before her termination, she had worked full-time for more than twenty five
years. ECF No. 2 ¶IJ 1, 7; ECF No. 14-6 lj 2. Defendants argue that any claims arising out of their
decision to terminate Plaintiff are barred by the so-called ministerial exception granted by the
First Amendment to the United States Constitution because Plaintiff is a "minister- as that term
has been used under the exception. See generally ECF No. 6-1.
Plaintiff holds an undergraduate degree in art, with a minor in music, as well as a
master's degree in elementary education, which she received from the University of Maryland.
ECF No. 14-6 II 5. Although Plaintiffs collegiate education was secular in nature, Plaintiff also
holds a secondary school diploma, as well as a nurse's aide certificate, from Brazil Adventist
College, and a diploma for teaching music and accordion from the Adventist Music
Conservatory. ECF No. 17-1 at 2,4. Plaintiff indicates that she was not required to have any
ministerial training for her position as a music teacher at the School. ECF No. 14-6 ¶ 4.
In her role as a music teacher at the School, Plaintiff, who is herself a Seventh-day
Adventist, td. ¶ 7, was responsible for teaching students skills associated with singing, playing
instruments, and reading music, as well as teaching the history of music in the United States and
For the purposes of deciding Defendants' Motion, all facts are viewed in the light most favorable to Plaintiff.
2
abroad, id. 1112. Plaintiff taught students both secular and sacred music, id if 14, but, according
to Wendy Pega, the Principal of the School, Plaintiff has indicated that one of her goals as a
teacher was to allow her students to "see Jesus through music." ECF No. 6-5 ¶ 2E. Every month
or two, Plaintiff's students performed at the church that is on site at the School, including both
secular and sacred music. ECF No. 14-6 if 15. Each school day began with a prayer service for
the faculty members, which various teachers, including Plaintiff, were required to take turns
conducting, but Plaintiff never taught religion or bible study classes to the students. Id.
16-17.
Students at the School were not required to be Seventh-day Adventists. and Plaintiff estimated
that 10 to 20 percent of her students were not. Id If 3.
Plaintiff held a "Commissioned Ministry of Teaching License" which she was awarded
after completing at least three years of teaching in the Seventh-day Adventist school system.
ECF No. 17-1 ¶ 2G. After six or more years of service, Plaintiff was eligible to receive a
"Commissioned Ministry of Teaching Credential," but she turned it down. Id. In a 2010
performance evaluation of Plaintiffs work, in which she was evaluated for her "spiritual
leadership," Pega indicated that Plaintiff "[alt all times ... demonstrates a lifestyle consistent
with accepted Seventh-day Adventist church standards"; that she "encourages her students to see
their performances as opportunities to share God through music"; and that "[h]er selection of
music is done with the hope that the students will grow in their relationship with Christ as they
sing the words and take in the message." ECF No. 17-2 at 5.2
The Columbia Union Educational Code (the "Education Code"), which was incorporated
by reference into Plaintiff's employment contract, ECF No. 6-2 If 2C; ECF No. 6-4, sets forth
guidelines and standards for the establishment and operation of Seventh-day Adventist schools.
2 Pin cites to documents filed on the Court's electronic filing system (CM/ECF) refer to the page numbers generated
by that system.
3
including employment standards and philosophies for teachers in such schools. See ECF No. 6-3;
ECF No. 6-6 at 1. It was created and published by another Seventh-day Adventist Church
organization, the Columbia Union Conference of Seventh-day Adventists. ECF No. 6-2 ¶ 2C.
Under the Education Code, the "primary aim of Seventh-day Adventist education is to provide
opportunity for students to accept Christ as their Savior, to allow the Holy Spirit to transform
their lives, and to fulfill the commission of preaching the gospel to all the world." ECF No. 6-3
at 2. The Education Code further provides that "Adventist schools are an integral part of the
Church." Id. at 3. Adventist schools are encouraged to "conduct a Week of Spiritual
Emphasis/Week of Prayer annually: [p]referablly in the fall and spring- and principals, deans,
and teachers are required to provide a "devotional period- for students each school day. Id. at 4.
With respect to employment principles, the Education Code "requires that schools employ only
those wit live in complete harmony with the beliefs and practices of the Church. Therefore, an
occupational qualification for any position is that applicants will be baptized Adventists
committed to the Church's program of ministry.- Id. at 6. Instructional personnel of schools are
expected to Ip]ractice enthusiastically and consistently the ideals of the Church";
"[d]emonstrate a high sense of loyalty to Adventist educational philosophy"; and "[gook upon
Christian educational service as a holy vocation.- Id. at 8. Moreover, School personnel such as
Plaintiff were required to "maintain membership in their constituent or academy churches and
participate in church activities, programs, and finances, including the practice of tithing through
the local employing organization." Id. at 7. Notably, a portion of Plaintiff's salary was paid by
tithe fimds,3 ECF No. 6-2 If 2F, though Plaintiff was unaware of that fact during her employment
at the School, ECF No. 14-6 ¶ 18.
3
Within the Seventh-day Adventist faith, tithe funds are to be used for ministry. ECF No. 6-2 1-1 2F.
4
On February 6,2013, while working at the School, Plaintiff fell and sustained a serious
physical and neurological injury, which limited the operation of Plaintiff's brain, neurological
system, and musculoskeletal system. ECF No. 2 118; ECF No. 6-2 If 2H. The injury made it
difficult for Plaintiff to see, concentrate, and think, as well as care for herself or perform manual
tasks. ECF No. 2 ¶ 8. Plaintiff filed a claim for workers' compensation benefits in March 2013.
Id. If 9; ECF No. 6-7. Plaintiffs injury caused her to be absent from work for significant periods
of time, b'ut Plaintiff received notes from her treating physicians explaining the need for her
absences. ECF No. 2 ¶ 10.
In March or April 2013, while Plaintiff was still out on leave pursuant to her doctors'
orders, id. ¶ 11. Keith L. Hallam, the Vice President for Education of the Potomac Conference,
sent a letter to Plaintiff "invit[ing] [her] to share [her] ministry- with School students for the
2013-2014 school year, ECF No. 6-6 at 1. That letter indicated that Plaintiffs appointment to
continue at the School for that year required that she meet certain conditions, including active
membership in a Potomac Conference constituent Seventh-day Adventist Church -with evidence
of loyalty to denominational standards and teachings," as well as "fulfillment of the
qualifications and responsibilities required of instructional personnel as outlined in the ...
Educational Code." Id. Plaintiff signed the annual contract, incorporating the Education Code, to
continue her employment at the School for the 2013-2014 school year on April 22, 2013, and it
was signed by Hallam on May 13, 2013. ECF No. 6-4.
On June 28, 2013, a Potomac Conference human resources representative, Johana
Prestol-Dominguez, sent a letter to Plaintiff explaining that Plaintiff's "report to work date"
would be August 12, 2013. ECF No. 14-2 at 1. The letter further stated:
We hope that your physician will clear you for return to work and [we] know that
is your wish as well. However, if you are unable to return to work on that date we
5
have chosen to provide you with a full month's wages through August 30, 2013
above and beyond policy. At that time it will not be possible for us to hold your
position open for you any longer and other staffing arrangements will need to be
made.
Id Having not received any clearance for Plaintiff to return to work one month later, in a letter
dated July 30, 2013, Hallam explained that it was "with sadness that [the School] [would] be
withdrawing [Plaintiff s] contract [for the 2013-2014 school year] due to [her] inability to meet
its requirements." ECF No. 6-8 at 1. Although the letter was sent by certified mail, Plaintiff did
not receive it. See id. at 2; ECF No. 2 1115; ECF No. 14-4 at I.
On August 8, 2013, Plaintiff's neurologist wrote a letter indicating that he was
"reluctantly allowing her to attempt to return to work" but that Plaintiff would require certain
accommodations, namely, that after two or three hours of work, Plaintiff would need to be
allowed to take a fifteen or twenty minute rest break "in an environment that is quiet and not
brightly lit and that allows her to recline." ECF No. 6-9 at I. The letter further indicated that "[i]f
symptoms ... become exacerbated ... and do not subside with rest,- then Plaintiff would need
to "be allowed to be relieved of her duties for that day." Id. Plaintiff then sent an email to Pega
and Hallam the following day explaining that her doctor was allowing her to return to work
"with minor accommodations which [would] not affect [her] performance as a teacher,- and
indicated that she would report to the School on August 12,.2013. ECF No. 14-3.
On August 11,2013, Prestol-Dominguez responded to Plaintiffs email, indicating that it
had been forward to her by Pega, and stated that Plaintiff was "informed via registered letter last
week that the Potomac Conference had decided to rescind [her] 2013-2014 contract.- ECF No.
14-4 at I. That email also indicated that the School had not yet received the release from
Plaintiff s doctor and that a copy would need to be sent for the Potomac Conference to make a
decision regarding Plaintiff's return to work and the requested accommodations. Id. Prestol6
Dominguez then instructed Plaintiff not to report to work until she was authorized to do so. Id.
Plaintiff nevertheless reported to work on August 12, and, after she was given a copy of the letter
which rescinded her contract, she was promptly sent home. ECF No. 2 ¶ 15 n.4; ECF No. 15-5 at
1.
No further discussion between Plaintiff and Defendants took place until, on August 14,
2013, Prestol-Dominguez emailed Plaintiff indicating that they had received notice from
Plaintiff's doctor regarding the requested accommodations and further stating:
We regret to inform you that the Potomac Conference will not be able to
accommodate the restrictions placed upon your return to work. Accommodation
of the restrictions would not permit you to perform the basic core functions of the
position as set forth in your employment agreement. As you know, the . . .
Education Code provides that if a teacher becomes unable to perform the essential
job functions with or without reasonable accommodations, they cannot continue
in the position.
ECF No. 14-5 at 1. Plaintiff alleges, however, that based on her teaching schedule, she would
have had sufficient time during the day between classes to take the necessary rest breaks to
accommodate her medical needs. ECF No. 2 ¶ 17.
After her termination, the School posted on a website called the "Adventist Education
Educator Toolbox" a job posting seeking a "Christian, caring, and engaging- music teacher. ECF
No. 14-7 at 2. The posting noted that applicants must have a degree in music education and some
experience working with children, but did not specify that applicants were required to be
members of the Seventh-day Adventist Church. Id. Plaintiff was eventually replaced by a teacher
who is approximately 26 years younger than Plaintiff; Plaintiff was 56 years old at the time of
her termination. ECF No. 2 if 18.
Plaintiff initiated this action on May 15, 2015 in the Circuit Court for Prince George's
County, Maryland, alleging twelve causes of action related to her termination: two claims
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asserting breach of contract (Counts I & II); wrongful termination in retaliation for tiling a
workers' compensation claim in violation of Md. Code Ann., Labor & Emp. § 9-1105(a) (Count
III); violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112 et seq.
(Counts IV & V); violations of the Maryland Fair Employment Practices Act ("MFEPA-), Md.
Code Ann., State Gov't § 20-601 el seq. (Counts VI, VII & XI): violations of the Prince
George's County, Maryland County Code § 2-185 et .seg. (Count VIII & XII); violation of the
Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 el seq. (Count IX); and violation of
the Age Discrimination in Employment Act ("ADEN.), 29 U.S.C. § 621 el seq. (Count X).
On October 14, 2015, while the case was still pending in state court, Defendants filed a
Motion to Dismiss, or, in the Alternative, Motion for Summary Judgment in which they argued
that all of Plaintiff's claims are barred by the ministerial exception. ECF No. 6. Defendants also
requested a hearing on their Motion. M. at 2. One day later, before the state court took any action
on Defendants' Motion, Defendants removed the case to this Court. ECF No. 1. Plaintiff timely
filed a Motion to Remand the case to state court on October 30, 2015. ECF No. 11. Defendants'
Motion and Plaintiffs Motion to Remand are both now fully briefed and ready for resolution.
See ECF Nos. 14, 16, 17, 18.
PLAINTIFF'S MOTION TO REMAND
If an action filed in state court is one in which a district court has original jurisdiction,
that action may be removed by the defendant to the district court -for the district and division
embracing the place where such action is pending,- 28 U.S.C. § 1441(a), within thirty days after
the defendant is served with the complaint, 28 U.S.C. § 1446(b)(1). In her Motion to Remand,
Plaintiff does not argue that this Court lacks jurisdiction over the matter, nor that Defendants'
removal was untimely. Rather, she argues that Defendants waived the right to remove the case to
8
this Court by filing a dispositive motion in state court before filing their Notice of Removal. See
ECF No, 11. The Court disagrees.
"Although there is no statutory basis for remand due to a party's waiver of its right of
removal, 'the [United States Court of Appeals for the] Fourth Circuit. . [has] recognized that a
district court could find a waiver under common law, but only in very limited circumstances."
Va. Beach Resort & Conference Or. Hotel Ass'n Condo. v. Certain Interested Underwriters. at
Lloyd's, London, 812 F. Supp. 2d 762, 764 (E.D. Va. 2011) (quoting Westwood v. Fronk, 177
F.Supp.2d 536, 540 (N.D.W.Va.2001)). The Fourth Circuit explained that a defendant waives its
right to remove an action to federal court by "demonstrating a 'clear and unequivocal' intent to
remain in state court," but that "such a waiver should only be found in 'extreme situations.'
Grubb v. Donegal Mut Ins. Co., 935 F.2d 57, 59 (4th Cir. 1991) (quoting Rothner v. City of
Chicago, 879 F.2d 1402, 1416 (7th Cir. 1989)); see also Aqua/on Co. v. Mac Equip., Inc., 149
F.3d 262, 264 (4th Cir. 1998), abrogated on other grounds by Grupo Datallux v. Atlas Glob.
Grp., L.P., 541 U.S. 567 (2004) (emphasis omitted) ("A defendant may waive the right to
remove by taking some such substantial defensive action in the state court before petitioning for
removal."); Johnson v. Celotex Corp., 701 F. Supp. 553, 555 (D. Md. 1988), superseded by
statute on other grounds as stated in Zumas v. Owens-Corning Fiberglass C'orp., 907 F. Supp.
131, 132 (D. Md. 1995)) ("For waiver to have occurred, a defendant must have taken some
affirmative action in state court after its right to remove exists."). "The values of judicial
economy, fairness, convenience and comity should guide courts in determining whether a finding
of waiver is appropriate." Trademark Remodeling, Inc. v. Rhines, 853 F. Supp. 2d 532, 542 (D.
Md. 2012) (citing Grubb, 935 F.2d at 59).
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The most obvious example of when a finding of waiver is appropriate is where a
defendant removes a case to federal court after receiving an unfavorable determination on the
merits of the case in state court. See Estate of Krasnow v. Texaco, Inc., 773 F. Supp. 806, 809
(E.D. Va. 1991) ("[A] defendant must not be allowed to test the waters in state court and, finding
the temperature not to its liking, beat a swift retreat to federal court"); see also Wolfe v. WalMart Corp.. 133 F. Supp. 2d 889, 893 (N.D.W. Va. 2001) ("[W]here a defendant has notice of
the right to remove but continues to litigate in state court, prior to filing a notice of removal, the
defendant will be considered to have waived its right to remove."). But in cases where a
defendant files a notice of removal simultaneously with or shortly after taking defensive action in
.the state court proceeding, courts have found that such conduct does not signify the sort of
unequivocal intent to remain in state court necessary to constitute a waiver of the right to
remove. See McWilliams v. Broderick, No. 1:11CV519 JCC, 2011 WL 2669969, at *2 (E.D. Va.
July 7, 2011) (finding no waiver where defendant removed case to federal court ninety minutes
after filing responsive pleadings in state court); Jones y Johnson, No. 3:11CV001-JAG, 2011
WL 494479, at *2 (E.D. Va. Feb. 7, 2011) (finding no waiver where notice of removal and
demurrer/motion to dismiss were filed "simultaneously").
Although "the line between what will cons‘titute waiver of the right to remove and what
will not is far from clear," Charles A. Wright & Arthur R. Miller, 14B Fed. Prac. & Proc. Juris. §
3721 (4th ed.), the Court concludes that Defendants' filings in this case did not demonstrate a
"clear and unequivocal intent to remain in state court,- Grubb, 935 F.2d at 59, nor does this case
present the sort of "extreme situation,- id., in which the Fourth Circuit has indicated that a
waiver may be found.4 Only one day passed between Defendants' filing of its Motion in state
4 In support of her Motion to Remand, Plaintiff points to three out-of-circuit cases which she argues support her
position that filing a motion to dismiss in state court prior to removal automatically results in a waiver of the right to
10
court and its filing of the Notice of Removal that removed the case to this Court. During that
time, Plaintiff did not respond to Defendants' Motion, and the state court took no action upon it.
See Abraham v. Cracker Barrel Old Country Store, Inc. .No. 3:11CV182-HEH, 2011 WL
1790168, at *6 (ED. Va. May 9,2011) (describing as,"critical" to the court's finding of no
waiver the fact that the defendant filed its notice of removal before plaintiff responded to
defendant's defensive motion in state court). Given how quickly Defendants sought to remove
the case to this Court after filing their Motion to Dismiss, this case does not present the sort of
comity concerns presented when a defendant takes 'some further action . . [in the state court]
that results in a decision [by that court] on the merits of the case.' Trademark Remodeling, 853
F. Supp. 2d at 542 (quoting Sayre Enterprises. Inc. v Allstate Ins. Co., 448 F. Supp. 2d 733, 736
(W.D. Va. 2006)). In light of these considerations, and the fact that the Fourth Circuit has
warned that waiver should only be found in "extreme situations" where the removing party
clearly indicates a willingness to litigate the merits ofthe dispute in state court, the Court finds
that Defendants' filing of a motion to dismiss in state court did not waive their right to remove
the case to federal court.
remand. See ECF No. 11 IT 7-9 (citing Kant Hon. Inc. v. Cigna Fire Underwriters Ins. Co., 933 F. Supp. 1060
(M.D. Fla. 1996); Scholz v. RDV Sports, Inc., 821 F. Supp. 1469 (M.D. Fla.' 1993); Sandoval v. Target Corp., 2012
U.S. Dist. LEXIS 74351 (N.D. III. May 24, 2012)). Two of those cases, however, Kam Hon and Scholz, appear to no
longer be good law. See Beach TV Properties, Inc v. Bellsouth Mobility, LLC, No. 3:06 CV 241 RV/MD, 2006 WL
21313 I 1, at *1 (N.D. Fla. July 27, 2006) (citing Cogdell v. Wyelh, 366 F.3d 1245 (11th Cir. 2004); Yusefzadch y
Nelson, Mullins, Riley & Scarborough, 365 F.3d 1244 (11th Cr. 2004)) (noting that the United States Court of
Appeals for the Eleventh Circuit has "repeatedly held that the filing of a motion to dismiss in state court, without
more, is insufficient to waive a defendant's right of removal" and that cases decided before Cogdell and Yusefradeh
"are contrary to the now well-established law of this circuit"). The third case, Sandoval, is factually distinguishable
from the present case. In Sandoval, the defendant received notice that diversity jurisdiction existed when the
plaintiff amended her complaint to allege an amount in controversy exceeding the jurisdictional amount of $75,000,
and twenty-five days later, after filing a motion to dismiss and seeking transfer of the case to a different state court
division, the defendant finally removed the action to federal court. 2012 U.S. Dist. LEXIS 74351 at *5. The court
found that this conduct amounted to a waiver of the right to remove. Id. Here, however, the Court does not find that
the one-day delay in removal after filing a dispositive motion amounted to such an unequivocal intent to proceed in
state court.
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III. DEFENDANTS' MOTION TO DISMISS, OR, IN THE ALTERNATIVE,
MOTION FOR SUMMARY JUDGMENT
A. Standard of Review
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of a
complaint if it fails to state a claim upon which relief can be granted. This Rule's purpose "is to
test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of
a claim, or the applicability of defenses." Presley v. City of Charlottesville, 464 F.3d 480, 483
(4th Cir. 2006) (citation and internal quotation marks omitted). "In general, extrinsic evidence
should not be considered at the motion to dismiss phase when the motion challenges the legal
sufficiency of a complaint under Rule 12(b)(6)," Todd v. Xoom Energy Maryland LIE, No.
GJH-I 5-154, 2016 WL 727108, at *5 (D. Md. Feb. 22, 2016), because when deciding such a
motion, a court "must accept as true all of the factual allegations contained in the complaint,"
and must "draw all reasonable inferences [from those facts] in favor of the plaintiff" El du
Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (citations and
internal quotation marks omitted).
A district court may, however, consider matters outside the pleadings if it converts a
motion to dismiss made pursuant to Rule 12(b)(6) into one for summary judgment. Fed. R. Civ.
P. 12(d). When the Court treats a motion to dismiss as a motion for summary judgment, "[a]ll
parties must be given a reasonable opportunity to present all the material that is pertinent to the
motion." Id. "Where, as here, the movant expressly captions its motion, 'in the alternative' as
one for summary judgment, and submits matters outside the pleadings for the court's
consideration, the parties are deemed to be on notice that the conversion under Rule 12(d) may
occur; the court does not have an obligation to notify parties of the obvious." Davis v. Baltimore
Hebrew Congregation, 985 F. Supp. 2d 701, 711 (D. Md. 2013) (citations and internal quotation
12
marks omitted); see also Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253, 261 (4th
Cir. 1998). However, summary judgment should not be granted if the nonmoving party has not
had the opportunity to discover information that is essential to her opposition to the motion. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1987). If the nonmoving party feels that
the motion is premature, that party can invoke Rule 56(d) of the Federal Rules of Civil
Procedure, which permits a nonmovant to show "by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its opposition ...."Fed. R. Civ. P. 56(d). But
"the party opposing summary judgment cannot complain that summary judgment was granted
without discovery unless that party had made an attempt to oppose the motion on the grounds
that more time was needed for discovery." Harrods Ltd v. Sixty Internet Domain Names, 302
F.3d 214, 244 (4th Cir. 2002) (citation and internal quotation marks omitted).
JHere, Plaintiff generally argues that discovery is needed to resolve the present motion,
see ECF No. 14 at 2-4, but she has not filed an affidavit or declaration in support of such claim,
as is required by Rule 56(d). And, although Plaintiff indicates that cross-examination of relevant
witnesses is necessary in order to "provide a fuller picture" of the issues presented in this case,
id. at 3, it is important to note that "Rule 56(d) affidavits cannot simply demand discovery for the
sake of discovery. Rather, to justify a denial of summary judgment on the grounds that additional
discovery is necessary, the facts identified in a Rule 56 affidavit must be essential to [the]
opposition." Hamilton v. Mayor & City Council of Balt., 807 F. Supp. 2d 331, 342 (D. Md. 2011)
(citations and internal quotation marks omitted). Although cross-examination is undoubtedly an
important tool to probe the truth of factual allegations, see Greene v. McElroy, 360 U.S. 474, 497
(1959), Plaintiff has failed to.provide any "specified reasons" why additional discovery is
13
necessary to properly oppose Defendants' Motion, see Fed. R. Civ. P. 56(d). Accordingly, the
Court will treat Defendants' Motion as one for summary judgment.
"Under Rule 56(c) [of the Federal Rules of Civil Procedure], summary judgment is
proper 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Calvet!, 477 U.S.
317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). The party moving for summary judgment bears
the burden of demonstrating that no genuine dispute exists as to material facts. Pulliam Inv. Co.
v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987). If the moving party demonstrates that
there is no evidence to support the non-moving party's case, the burden shifts to the non-moving
party to identify specific facts showing that there is a genuine issue for trial. See Celotex, 477
U.S. at 322-23. Summary judgment is proper if there are no issues of material fact and the
moving party is entitled to judgment as a matter of law. Id at 322; Francis v. Booz, Allen &
Hamilton, Inc., 452 F.3d 299, 302 (4th Cir.2006). A material fact is one that "might affect the
outcome of the suit under the governing law." Spriggs v. Diamond Auto GIctss, 242 F.3d 179.
183 (4th Cir. 2001) (quoting Anderson, 477 U.S. at 248 (1986)). A dispute of material fact is
only "genuine" if sufficient evidence favoring the non-moving party exists for the trier of fact to
return a verdict for that party. Anderson, 477 U.S. at 248. However, the nonmoving party
"cannot create a genuine issue of material fact through mere speculation or the building of one
inference upon another." Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1986). The Court may only
rely on facts supported in the record, not simply assertions in the pleadings, in order to fulfill its
"affirmative obligation ... to prevent 'factually unsupported claims or defenses' from
proceeding to trial." Felly v. Grave-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987)
14
(quoting Celotex, 477 U.S. at 324-25). When ruling on a motion for summary judgment, "[t]he
evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in
[her] favor." Anderson, 477 U.S. at 255.
B. Discussion
Defendants' sole argument in support of their Motion is that all of Plaintiff's claims are
barred by the so-called ministerial exception grounded in the First Amendment. See ECF No. 61. The First Amendment provides, in relevant part, that "Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise thereof - U.S. Const. amend. I. As a
result, "Courts of Appeals have uniformly recognized the existence of a 'ministerial exception::
grounded in the First Amendment, that precludes application of [certain] legislation to claims
concerning the employment relationship between a religious institution and its ministers."
Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 132 S. Ct. 694, 705 (2012).
And in Hosanna-Tabor, the United States Supreme Court for the first time affirmed, after
extensively examining the historical background of the First Amendment, that the ministerial
exception is an affirmative defense5 that "prevents government entanglement in religion by
precluding employment discrimination suits" where such a suit would require courts to become
involved in the relationship between a religious institution and its ministers. Davis, 985 F. Supp.
2d at 710. As the Supreme Court explained:
The members of a religious group put their faith in the hands of their ministers.
Requiring a church to accept or retain an unwanted minister, or punishing a
church for failing to do so, intrudes upon more than a mere employment decision.
Such action interferes with the internal governance of the church, depriving the
Before Hosana-Tabor, courts disagreed over whether the ministerial exception posed a jurisdictional bar to a
court's ability to hear a case, or whether it was a defense on the merits. The Supreme Court clarified that the
exception is an affirmative defense to an otherwise cognizable claim because the issue presented by the exception is
"whether the allegations the plaintiff makes entitle him to relief,' not whether the court has 'power to hear [the]
case." Hosana-Tabor, 132 S. Ct. at 709 n.4 (quoting Morrison v. Na(l Australia Bank Ltd, 561 U.S. 247, 254
(2010)).
5
15
church of control over the selection of those who will personify its beliefs. By
imposing an unwanted minister, the state infringes the Free Exercise Clause,
which protects a religious group's right to shape its own faith and mission through
its appointments. According the state the power to determine which individuals
will minister to the faithful also violates the Establishment Clause, which
prohibits government involvement in such ecclesiastical decisions.
Hosanna-Tabor, 132 S. Ct. at 706; see also McClure v. Salvation Army, 460 F.2d 553,558-59
(5th Cir. 1972) ("The relationship between an organized church and its ministers is its lifeblood.
The minister is the chief instrument by which the church seeks to fulfill its purpose. Matters
touching this relationship must necessarily be recognized as of prime ecclesiastical conce n. .
For the ministerial exception to bar a claim, two factors must be present: the employer
must be a religious institution, and the employee must have been a ministerial employee. Hollins
v. Methodist Healthcare, Inc., 474 F.3d 223,225 (6th Cir. 2007), abrogated on other grounds by
Hosanna-Tabor, 132 S. Ct. 694; see also Shaliehsabou v. Hebrew Home of Greater Washington,
Inc., 363 F.3d 299,309-10 (4th Cir. 2004). A religious institution, for purposes of the ministerial
exception, is one whose "mission is marked by clear or obvious religious characteristics.Shaliehsabou, 363 F.3d at 310. Plaintiff does not dispute that both the Potomac Conference and
the School share a religious mission, see ECF No. 14; ECF No. 6-2 ifif 2A-2D, but she argues
that she is not a minister within the scope of the exception, ECF No. 14 at 12-14.
In Hosanna-Tabor, the Supreme Court expressly declined to "adopt a rigid formula for
deciding when an employee qualifies as a minister," but noted that every Court of Appeals to
have considered the issue had concluded that the ministerial exception was not limited to the
head of a religious congregation. Hosanna-Tabor, 132 S. Ct. at 707. The Supreme Court
determined only that it was sufficient for its purposes to conclude that the exception covered the
plaintiff in that case, Cheryl.Perich, given the circumstances of her employment. Id. Perich, who
was terminated from employment after she was diagnosed with narcolepsy, was a "called 16
teacher with the Hosanna-Tabor Evangelical Lutheran Church and School, meaning that she was
"regarded as having been called to [her] vocation by God through a congregation.- Id. at 699700. Hosanna-Tabor held Perich out as a minister, and Perich considered herself to be a minister
"by accepting the formal call to religious service, according to its terms," and also by claiming a
special housing allowance on her taxes that is available only to employees earning their
compensation "in the exercise of the ministry." Id. at 707-08. Perich's title as a minister
"reflected a significant degree of religious training followed by a formal process of
commissioning." Id. at 707. And Perich's job duties included teaching her students religion four
days a week, leading them in prayer three times a day, taking her students to school-wide chapel
services, and, about twice per year, leading those services. Id. at 708. "In light of these
considerations—the formal title given Perich by the Church, the substance reflected in that title,
her own use of that title, and the important religious functions she performed for the Church-the Supreme Court concluded that Perich was a minister covered by the ministerial exception. Id.
The exception therefore barred her claim of retaliation under the ADA.
In reaching this conclusion, the Supreme Court in Hosanna-Tabor rejected the test
adopted by the United States Court of Appeals for the Sixth Circuit that, in concluding that
Perich was not a minister, gave too much weight to the fact that lay teachers performed the same
religious duties as Perich, and placed too much emphasis on the fact that Perich's religious duties
consumed only forty five minutes of each workday. Id at 708. The Supreme Court noted that
even "[t]he heads of congregations themselves often have a mix of duties, including secular ones
such as helping to manage the congregation's finances, supervising purely secular personnel, and
overseeing the upkeep of facilities," and that the issue before the Court was "not one that [could]
be resolved by a stopwatch." Id. at 709. "The amount of time an employee spends on particular
17
activities is relevant in assessing that employee's status, but that factor cannot be considered in
isolation, without regard to the nature of the religious functions performed and the other
considerations discussed ...." Id
Though courts both pre-dating and post-dating Hosanna-Tabor have similarly eschewed
adopting a rigid formula for determining whether a particular individual is to be deemed a
minister, certain factors have been identified as important considerations for making such a
determination, including the formal title an individual holds, "the substance reflected in that
title," the individual's use of that title, and "the important religious functions performed for the
religious institution." Kirby v. Lexington Theological Seminary, 426 S.W.3d 597, 613 (Ky.
2014); see also Rweyemamu y Cote, 520 F.3d 198, 208 (2d Cir. 2008) (considering as relevant
factors the employee's function in the religious institution, the employee's relationship to the
employer, and the nature of the action as relevant factors for determining whether ministerial
exception applies); Alcazar v. Corp. of the Catholic Archbishop of Seattle. 627 F.3d 1288, 1292
(9th Cir. 2010) (finding that plaintiff, who was not yet ordained but had entered the seminary to
become a priest, fell within ministerial exception, but noting that "if a church labels a person a
religious official as a mere 'subterfuge' to avoid statutory obligations, the ministerial exception
does not apply"); Davis, 985 F. Supp. 2d at 710 (citing Rayburn v. Gen. Conference of SeventhDay Adventists, 772 F.2d 1164, 1169 (4th Cir. 1985)) (noting that the Fourth Circuit had, before
Hosanna-Tabor, "similarly eschew[ed] a rigid formula for deciding whether the ministerial
exception applies" and rather "has employed an individualized, fact-specific 'primary duties'
test"); Dias v. Archdiocese of Cincinnati, No. 1:11-CV-00251, 2012 WL 1068165, at *5 (S.D.
Ohio Mar. 29, 2012) (considering as relevant factors whether plaintiff was held out as a minister,
had any religious title or commission, or was charged with teaching the faith or participating in
18
-
religious services, and whether defendant periodically reviewed plaintiff's "skills in ministry- or
"ministerial responsibilities").
Notably, multiple courts, including the Fourth Circuit, have found that music teachers
and directors can be deemed ministers subject to the ministerial exception. See E.EO.0 v.
Roman Catholic Diocese of Raleigh, N. C., 213 F.3d 795, 802 (4th Cir. 2000) (rejecting
plaintiffs argument that he was merely "a lay choir director and teacher, charged with the
responsibility of training people to sing and perform music- and noting that "music is a vital
means of expressing and celebrating those beliefs which a religious community holds most
sacred"); see also Starkman v. Evans, 198 F.3d 173, 176-77 (5th Cir. 1999); Tom e y Catholic
Diocese of Peoria, 442 F.3d 1036, 1040-41 (7th Cir. 2006), abrogated on other grounds by
Hosanna-Tabor, 132 S. Ct. 694. And in a case involving seemingly the same Education Code
that is applicable to Plaintiffs employment in this case, where a former elementary school
teacher at a Seventh-day Adventist school alleged discriminatory discharge and breach of his
employment contract, the Fourth Circuit found that the plaintiff fell within the ministerial
exception where the Education Code made it clear that "the primary purpose of Seventh-day
Adventist elementary education is the redemption of each student's soul through his or her belief
and faithful adherence to Seventh-day Adventist theological beliefs- and that "the Seventh-day
Adventist Church relies heavily upon its full-time, elementary school teachers to carry out its
sectarian purpose." Clapper v. Chesapeake Conference of Seventh-Day Adventists, 166 F.3d
1208, 1998 WL 904528, *7 (4th Cir. 1998). The Fourth Circuit further noted that the school
"require[d] all of its full-time, elementary school teachers to exemplify the teachings of the
Seventh-day Adventist faith in their personal and professional lives," for the obvious purpose of
its desire "to insure that the minds of its youth are shaped by model members of the Seventh-day
19
Adventist faith." Id. Given these considerations, together with the fact that teachers lead their
students in prayer at various times during the day, formally instructed students in the teachings of
the Bible as understood by the Seventh-day Adventist Church, and incorporated the teachings of
the Seventh-day Adventist Church throughout the traditional academic curriculum, the Fourth
Circuit felt "constrained" to conclude that the ministerial exception applied. Id.
By contrast, where an employee's role in a religious organization is wholly or
substantially secular, the ministerial exception will not apply. Employment or affiliation with a
religious institution is not alone enough to find that an individual is a minister within the bounds
of the exception. See. e.g., Goodman v. Archbishop Curley High Sch.. Inc., 149 F. Supp. 3d 577,
586 n.5 (D. Md. 2016) (ministerial exception did not apply to school librarian whose position did
not include any religious function); Davis, 985 F. Supp. 2d at 711 (plaintiff was not a minister of
Jewish institution where his primary duties—maintenance, custodial, and janitorial work—were
entirely secular, he had no religious training or title, and had no decision-making authority with
regard to religious matters, even though he occasionally instructed students about the
significance of a religious object after he set it up for certain events, that responsibility was
"limited and infrequent" and based on plaintiffs "limited knowledge," considering plaintiff was
not Jewish); Herx v. Diocese of Ft Wayne-S. Bend Inc., 48 F. Supp. 3d 1168, 1177 (N.D. Ind.),
appeal dismissed, 772 F.3d 1085 (7th Cir. 2014) (language arts teacher at Catholic school was
not a minister, where she never led planning for Mass, was not ordained by Catholic Church, did
not hold a title with Catholic Church, never had and was not required to have any religious
instruction or training to be a teacher at school, never held herself out as a priest or minister, and
was considered by principal to be a "lay teacher"); Dias, 2012 WL 1068165, at *5 (computer
teacher at Catholic school was not a minister where plaintiffs job duties were wholly secular,
20
plaintiff had no religious training or title, and was not a Catholic and therefore barred from
teaching Catholic doctrine).
Here, it is apparent that Plaintiffs role in the School was ministerial in nature. Although
a portion of Plaintiffs responsibilities were secular in nature, Plaintiff acknowledges that she is
personally a Seventh-day Adventist whose role at the School included teaching religious music
and leading prayer services. ECF No. 14-6 ¶11 7, 14, 16. Plaintiff does not dispute that she agreed
to abide by the Education Code, which "requires that schools employ only those who live in
complete harmony with the beliefs and practices of the Church- and therefore required that all
School teachers be "baptized Adventists committed to the Church's program of ministry.- ECF
No. 6-3 at 6. Additionally, under the Education Code, School personnel were expected to
ip]ractice enthusiastically and consistently the ideals of the Church-; Id]emonstrate a high
sense of loyalty to Adventist educational philosophy"; and Ilfook upon Christian educational
service as a holy vocation." Id. at 8. Plaintiff was also required to "maintain membership in ...
constituent or academy churches and participate in church activities, programs, and finances,
including the practice of tithing through the local employing organization," id. at 7, and a portion
of her salary was paid by tithe funds, which are intended to be used for ministry, ED' No. 6-2 II
2F. Moreover, Plaintiffs performance was evaluated in part based on her spiritual leadership.
ECF No. 17-2 at 5.
Although Plaintiff indicates that she was unaware that tithe funds paid part of her salary
and she maintains that she "never held [herself] out as a minister,- ECF No. 14-6 U 9, 18, these
representations do not suffice to create a genuine dispute with respect to Plaintiffs role in the
School. The School clearly held Plaintiff out to be a minister, requiring that she lead prayer
services and that she incorporate into her teaching the "Adventist educational philosophy.- ECF
21
No. 6-3 at 8. Indeed, when Plaintiff was extended a contract for the 2013-2014 school year, she
was told: "You are being invited to share your ministry with our students for the 2013-2014
school year." ECF No. 6-6 at 1. Plaintiff may not have labeled herself as a minister, but under the
circumstances, it is apparent that her students would have perceived Plaintiff to be "a
representative of the religious institution authorized to speak on church doctrine." Kirby, 426
S.W.3d at 613-14. Moreover, given that "music is a v'ital means of expressing and celebrating
those beliefs which a religious community holds most sacred," Raleigh, 213 F.3d at 802, and that
Plaintiff has represented that she hoped to help her students "see Jesus through music,- ECF No.
6-5 If 2E, her role as a music teacher was "important to the spiritual and pastoral mission" of the
School, Raleigh, 213 F.3d at 802.
The ministerial exception therefore applies to bar Plaintiff's federal employment
discrimination claims, namely, those under the ADA, ADEA, and FMLA. See Hosanna-Tabor,
132 S. Ct. at 709 (ministerial exception barred claim for retaliatory termination under the ADA);
Cannata v. Catholic Diocese of Austin, 700 F.3d 169,170 (5th Cir. 2012) (applying ministerial
exception to ADEA claim); Fassl v. Our Lady of Perpetual Help Roman Catholic Church, No.
CIV.A. 05-CV-0404,2005 WL 2455253, at *2 (E.D. Pa. Oct. 5,2005) (applying ministerial
exception to FMLA claim); see also Hopkins v. DeVeaux, 781 F. Supp. 2d 1283,1288-89 (N.D.
Ga. 2011) (noting that courts have concluded that the ministerial exception bars actions brought
under the ADA, the FMLA, and the Fair Labor Standards Act).
Plaintiff argues, however, that her claims under the ADA should survive insofar as she
alleged, in addition to a claim of retaliatory termination, a failure-to-accommodate claim. ECF
No. 14 at 15; see also ECF No. 2 if 41. In arguing that such claims are not barred by the
ministerial exception, Plaintiff notes that. in Hosanna-Tabor, the Supreme Court declined to
22
consider whether the ministerial exception would bar other suits such as actions for breach of
contract or tortious conduct, and noted that the Supreme Court limited its holding to the case
before it, involving an "employment discrimination suit brought on behalf of a minister,
challenging her church's decision to fire her." Hosanna-Tabor, 132 S. Ct. at 710. But multiple
courts have applied the ministerial exception in cases involving failure-to-accommodate claims.°
See, e.g, Werft v. Desert Sw. Annual Conference of United Methodist Church, 377 F.3d 1099,
1104 (9th Cir. 2004) (affirming dismissal of failure-to-accommodate claim due to ministerial
exception because "church's failure to accommodate [plaintiff s] disabilities while he was still
employed, are a part of the employment relationship between church and minister); see also
Cronin v. S. Indiana Annual Conference, No. 1:05 CV 1804 LIM WTL, 2007 WL 2258762, at
*6 (S.D. Ind. Aug. 3,2007).
Because the Court concludes that Plaintiffs claims arising under federal law must be
dismissed, and there is not complete diversity of citizenship between the Parties, see ECF No. 2
In 1-3, the Court declines to exercise supplemental jurisdiction over Plaintiffs remaining claims
arising under state law. See 28 U.S.C. § 1367(c)(3) (providing that district courts may decline to
exercise supplemental jurisdiction over state law claims when the district court has dismissed all
claims over which it had original jurisdiction); Hinson v Norwest Fin. S. Carolina. Inc., 239
6 Plaintiff also suggests that she has alleged a hostile work environment claim related to her disability and that such
a claim is not barred by the ministerial exception. ECF No. 14 at 15-16. Although there appears to be a split in
authority respecting whether hostile work environment claims are subject to the ministerial exception, compare
Elvig v. Calvin Presbyterian Church, 375 F.3d 951,953 (9th Cir. 2004) (ministerial exception did not bar hostile
work environment claim) with Skrzypczak v. Roman Catholic Diocese Of Tulsa, 611 F.3d 1238,1246 (10th Cir.
2010) (concluding that any Title VII claim, including hostile work environment claims, would improperly interfere
with church's right to select and direct its ministers), the Complaint here only vaguely alleges that Defendants'
actions "were undertaken to harass and/or interfere with Plaintiff in the exercise or enjoyment of her rights under the
ADA," ECF No. 2 it 42, and, notably, does not set forth a separate count alleging a hostile work environment claim.
This general allegation, unaccompanied by any factual allegations to support such a claim, is far from what is
necessary to state a hostile work environment claim. See Ruffin v. Lockheed Martin Corp., 126 F. Supp. 3d 521. 528
(D. Md. 2015) (citations omitted) (setting forth elements of hostile work environment claim and noting that "vague
examples of rude and inappropriate behavior" were insufficient to state a hostile work environment claim).
Accordingly, even assuming the Complaint contained a hostile work environment claim, dismissal would be
necessary for failure to state a claim.
23
F.3d 611, 616 (4th Cir. 2001) (concluding that, if a case has been removed to federal court,
district court has the power to remand case to state court, rather than dismiss claims, if it declines
to exercise supplemental jurisdiction); Adams v. Am. Fed'n of Stale, No. PWG-14-4023, 2016
WL 795990, at *17 (D. Md. Mar. 1, 2016) (declining to exercise supplemental jurisdiction after
dismissing federal claims and remanding common law claims to state court). Thus, Defendants'
Motion is granted with respect to Plaintiff's federal law claims, and Plaintiff's remaining claims
will be remanded to state court.
IV. CONCLUSION
For the foregoing reasons, Plaintiffs Motion to Remand, ECF No. 11, is denied. and
Defendant's Motion to Dismiss, or, in the Alternative, Motion for Summary Judgment, is
granted, in part, and denied, in part. Plaintiffs federal claims, Counts IV, V, IX, and X are
dismissed with prejudice. Plaintiffs remaining claims are remanded to the Circuit Court for
Prince George's County, Maryland.
Dated: August /5 . 2016
GEORGE J. HAZEL
United States District Judge
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