Stabler v. Congregation Emanu-El of the City of New York et al

Filing 40

OPINION re: #24 MOTION to Dismiss Plaintiff's First Amended Complaint. filed by Lawrence Hoffman, #15 MOTION to Dismiss Plaintiff's First Amended Complaint. filed by John Harrison Streicker, Congregation Emanu-El of the City of New York, Gady Levy, Joshua Davidson, Cara Glickman. Based upon the conclusions set forth above, the motions to dismiss the FAC of the Plaintiff are denied. (Signed by Judge Robert W. Sweet on 7/28/2017) (kgo) (Main Document 40 replaced on 7/28/2017 as per instructions from Chambers) (ras).

'

.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

----------------------------------------x
ELIZABETH F. STABLER,
Plaintiff,
16 Civ. 9601 (RWS)
- against OPINION
CONGREGATION EMANO-EL OF THE CITY
OF NEW YORK, JOSHUA DAVIDSON,
individually and in his official
capacity, GADY LEVY, individually and
in his official capacity, CARA GLICKMAN,
individually and in her official
capacity, JOHN HARRISON STREICKER,
individually and in his official
capacity, LAWRENCE HOFFMAN, individually
and in his official capacity, JOHN AND
JANE DOES 1-10, individually and in
their official capacities, and
XYZ CORP. 1-10,

. . USDC SDI'- ~

DOCU1 E. rr
ELEC' RC,. '1CI tl

D ~

----------------------------------------x
A P P E A R A N C E S:
Attorney for Plaintiff
THE LAW OFFICE OF RUDY A. DERMESROPIAN, LLC
45 Broadway, Suite 1420
New York, NY 10006
By:
Rudy A. Dermesropian, Esq.

JACKSON LEWIS P.C.
44 South Broadway, 14 t h Floor
White Plains, NY 10601
By:
Scott T. Baken, Esq.
Lauren G. Hanson, Esq.

11
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Defendants.

Attorneys for Defendants

·=---

Attorneys for Defendant Rabbi Lawrence Hoffman
PECHMAN LAW GROUP PLLC
488 Madison Avenue, 11th Floor
New York, NY 10022
By:
Louis Pechman, Esq.
Lillian M. Marquez, Esq.

Sweet, D.J.

Defendants Congregation Emanu-El of the City of New
York (the "Congregation"), Rabbi Joshua Davidson ("Rabbi
Davidson"), Gady Levy ("Levy"), Cara Glickman ("Glickman"), and
John Harrison Streicker ( "Streicker")

(collectively, the

"Defendants") have moved pursuant to Rule 12(b ) (6) of the
Federal Rules of Civil Procedure to dismiss the First Amended
Complaint ("FAC") of the plaintiff Elizabeth Stabler ("Stabler"
or the "Plaintiff") . Defendant Rabbi Lawrence Hoffman ("Rabbi
Hoffman") has separately moved to dismiss Plaintiff's FAC
pursuant to Rule 12(b) (6). As set forth below, the motions to
dismiss are denied and the parties are directed to engage in
limited disco v ery with regard to the ministerial exception
issue.

1

I.

Prior Proceedings

Plaintiff initiated this action on December 13, 2016
and filed her FAC on December 20 , 2016 . The FAC alleges
intentional creation of a hostile wo rk environment, unlawful
d is crimin at i on , harassment, retaliation, and unlawful adverse
actions towards the Plaintiff based on : her gender in vio l a ti on
of Title VII of the Civil Rights Act of 1964, as amended,
U.S.C .

§§

2000e et seq.

42

("Titl e VII") , her age in violation of

the Age Discriminat i on in Empl oyment Act, as amended, 29 U. S . C .
§

621 et seq.

("ADEA" ) , and h er disability and fa ilure to

accommodate in violation of the Americans with Disabilities Act
of 1 990, 42 U.S . C .

§

1 210 1 et seq.

(" ADA " ). Plaintiff alleges

that the Defendants are also in violation of the Executive Law
of the State of New York , New York State Human Rights Law,
et seq .

296

("Executive Law") , and the Admin is trative Code of the

City of New York , New York City Human Rights Law ,
seq.

§

§

8 - 101 et

(" Administrative Code " ) .

The Defendants' motion to dismiss was filed on
February 3, 2017 , and Rabbi Hoffman's motion to dismiss was
filed on February 17, 2017 . Both motions were heard and marked
fu ll y submitted on April 12, 20 17.

2

II.

The Facts

The facts as set forth below are drawn from the
Plaintiff's FAC. They are taken as true for purposes of the
motion to dismiss.

Plaintiff is the former Librarian at the Congregation,
serving from September 29, 1999 until her termination on May 12,
2015. Id.
40.

Id.

~~

~

33 . Throughout this period, she was over the age of
2 -3. By the time she was terminated, Plaintiff was in

her late 60s.

Id.

~

33.

In or about 2012, Streicker became the Congregation's
President of the Board. Compl.

16, 44. Streicker hired Rabbi

~

Davidson in or about 2013 to take over as Senior Rabbi at the
Congregation.

Id.

~~

7, 44. Rabbi Davidson hired Levy, who began

to work as Director of the Skirball Center for Adult Jewish
Learning in June 2014, and Glickman, who began to work as
Executive Vice President in mid-July 2014. Id.

~~

10, 13, 38,

45. Rabbi Hoffman was a consultant to the Congregation.
19.

3

Id.

~

Defendants John and Jane Does 1-10 are natural persons
whose true identities are not yet known to Plaintiff and are
partners, shareholders, principals, employees, agents, or
persons otherw ise associated with one or more of the other
Defendants, or were otherwise in positions which enabled them to
commit , or to aid and abet in the commission of , the wrongful
acts against Plaintiff as alleged.

Id.

~

22 . Defendants XYZ

Corp . 1-10 are additional entities whose true identities are not
yet known to Plaintiff, which are owned or operated by,
affiliated with , owned and/or managed by or for the benefit o f
one or more other Defendants, or any combination of any or all
of them.

Id.

~

23.

Plaintiff's duties and responsibilities included, but
were not limited to:

Assembling an automated 14,000-item library from books
stored for many years into a new library; expanding
the library co llecti on , including periodicals, books,
ch ildren's materials, realia, audio-visual material
and education enhancement tools; facilitating and
organizing reading groups and a congregation-wide
read-along with relevant lectures; developed and ran
the Meet the Author and Library and Museum Lecture
Series ; conceived the "Who Are We" program series;
worked with the Board of Trustees Cultural and
Programming Committee; researched and implemented an
upgrade to the library's automated system to allow
offsite access to the library database; supported and
developed resource material for adult education and
4

other groups; maintained subscriptions to numerous
periodicals; regularly attended and taught workshops,
seminars and national library conventions; researched
and facilitated continuing education class about iPad
applications for teaching Hebrew; authored several
articles for "How to Run a Jewish Library" published
by the Association of Jewish Libraries; wrote articles
for New York Metropolitan Area chapter of the
Association of Jewish Libraries' NYMA News; Chaired
the Association of Jewish Libraries 2004 National
Convention held in Brooklyn, New York; appointed to
represent the Association of Jewish Libraries as a
member of an advisory committee for the American
Theological Library Association's planning grant. In
addition, Plaintiff created a functioning Judaica
library in the newly renovated Stettenheim Library
whose shelves were empty, culled and selected
appropriate material from 25,000 items in storage for
four years, and purchased all additional volumes and
items necessary for a congregational library.

Compl.

~~

34-35. Plaintiff was a highly praised employee of the

Congregation with no issues of work-related performance.

~

Id.

37. No negative performance was reported from Plaintiff's start
date at the Congregation until mid-2014, which coincides with
when Levy and Glickman started working at the Congregation.
~

Id.

38.

As part of her employment and involvement with the
Congregati o n Plaintiff also served on the Board's Programming
and Culture Committee from 2012 until Defendant Levy removed her
without prior notice in August 2014.

Id.

~~

50, 52. Defendants

also published the list of the Programming and Culture Committee

5

without Plaintiff's name, despite Plaintiff ' s contribution to
the committee . Id .

~

53 . No other employee who was a male , under

the age of forty and not suffering from a disability was removed
from the Board's Programming and Culture Committee in the manner
that Plaintiff was removed.

Id .

~

55 .

Plaintiff suffers from severe osteoarthritis and had a
knee rep l acement surgery in October 2008 , which was we l l - known
to Defendants . Id.

~~

39 - 40 . She started wearing an ankle brace

and using a cane to walk in 2014 . Id.

~

40 . It was also known

that Plaintiff needed another knee replacement surgery , which
she anticipated having in the summer of 2015. Id.

~

41 .

Until mid-2014 , prior to the hiring of Levy and
Glickman, Plaintiff was al l owed to work from home in times of
inclement weather since she had a physical disability that made
it difficult to commute to work when the weather conditions were
not favorable.

Id.

~~

42 , 46 . While working from home,

Plaintiff

was able to read materials in preparation for the two book
groups she facilitated , read review journals and professional
literature, send and receive emails , work on the Congregation's
community cookbook , and place orders for l ibrary acquisitions,

6

all of which were part of her duties and responsibilities.

Id.

~

43 .

After Defendants Levy and Glickman were hired by the
Congregation , Plaintiff 's requests for accommodations to work
from home during inclement weather condit i ons were denied by
Defendants. Id.

~

47 . No other employee who was a male, under

the age of forty , and/or not suffering from a disability was
suddenly denied reasonable accommodations due to a disability
after being granted such an accommodation in the past. Id.

~

49 .

On April 13, 2014 , Plaintiff complained to Rabbi
Davidson about Levy's behavior towards her.
Davidson did not take any remedial action.

~

Id.
Id.

~

59 . Rabbi
60. No other

employee who was a male , under the age of forty and not
suffering from a disability was treated in any manner similar to
how Plaintiff was treated by Levy.

Id.

~

61 .

At a meeting on April 27, 2014 for the committee of
Emanu-El Eats, a Congregational Cookbook , Levy berated, yelled
at, and insulted Plaintiff. Id.

~

57. Plaintiff had created and

worked on the book . Id. At a meeting on September 8, 2014, Levy
scolded Plaintiff for al l egedly sending him too many work -

7

related emails.

Id. She had sent about seven emails over the

course of three months.

Id. In or about September 2014 , Levy

threatened to reduce Plaintiff's job responsibilities if she
worked from home and stated t hat her employment and welfare are
in his hands and under his contro l.

Id.

On September 23, 2014, Levy began a meeting by yelling
at Plaintiff, and became very angry and hostile towards her for
sending an email regarding her successful resolution of a preexisting problem with the book group.

Id.

He also mimicked her

gestures and mocked her while other staff members were of
hearing distance from him, and told her that she had no right to
resolve the problem.

Id. During that same meeting,

Plaintiff

asked Levy why her name was excluded from the list published for
the Programming and Culture Committee . Id.
yelled at Plaintiff.

In response, Levy

Id.

Also in September 2014 , Hoffman, who acted as
management consultant for the Congregation's " Visioning
Committee," addressed the Religious School Faculty meeting and
stated that the Congregation will thrive and survive into a new
era as a result of the "ne w hires" and "young people" who have
been hired since Saul Kaiserman ("Kaiserman " ) , the Director of

8

Lifelong Learning for the Congregation , and new Religious School
staff were hired.

Id.

~~

62-63 . Immediately following Hoffman's

comments at the meeting, Plaintiff complained to Hoffman about
his statements. Id.

~

64 . Plaintiff reminded Rabbi Hoffman that,

despite not being a "new hire" or "young ," she initiated and
played a major role in planning significant le cture series for
the 2012 - 2013 transition years, and in advancements within the
Congregation over the 17 years of employment. Id.

65. Hoffman

~

later reiterated the same message, that the Congregation will
thrive and survive into a new era as a result of the "new hires"
and "young people" who have been hired since Ka iserman and the
Religious School staff were hired, while addressing congregants
at a Sunday breakfast session in the fall of 2014.

Id.

~

69.

In or around September 20 14, Plaintiff requested a
copy of the Congregation 's sick leave policy in order to request
a le ave of absence due to her osteoarthri tis.

Id.

~

70.

Defendants refused to provide Plaintiff with the policies.

Id.

71. During the fall of 20 14, Glickman allowed tampering of
Plaintiff's time sheets, accused Plaintiff of falsifying her
time, and threatened to take away her v acation days.

Id.

~

67.

Once Plaintiff started rec ord ing the times she arrived at and

9

~

left the Congregation , Defendants stopped their accusations.
~

Id.

68 .

During the winter of 2015,

Plaintiff made several

requests to work from home during inclement weather conditions

Id.

because of her osteoarthritis.

~

71. Despite Plaintiff being

granted such requests prior to Levy and Glickman's hiring at the
Congregation, Defendants denied Plaintiff's request, compe lling
her to use vacation days.

Id.

~

73.

On May 12, 2015 , Plaintiff was called into a meeting
and told by Levy and Glickman that her position was purportedly
eliminated.

Id.

~

74 . Plaintiff was offered a part-time,

clerica l, non-professional position.

Id. In August 2015 , the

Congregation published a job posting seeking to fill the
position of Librarian, which had similar professional
requirements for the position that Plaintiff held prior to her
termination on May 12, 2015.

Id.

~

79.

Other employees who either did not suffer from a
disability, who were younger than Plaintiff, or who were male
employees, were not treated in the same disparate manner as
Plaintiff.

Id.

~

80. Warren Klein , a 29-year old male employee,

10

who does not suffer from a disability, was promoted in May 2015
and was offered partial responsibility to run the library. Id.

~

81 . Christine Manomat , who did not suffer from a disability, was
allowed to work from home.

Id.

~

82. Beginning around September

2016, Glickman himself was allowed to work from home.

Id.

83 .

~

Defendants' treatment of the Plaintiff mirrored their
treatment of other female employees who were over the age of 40,
and some of whom suffered from a disability.

Id.

~

84 . Roberta

Greenberg, a 68 - year old female employee, had her salary cut by
one third despite working for Defendants for 48 years.

Id.

~

85 .

Hadassah Mushinsky, an 87 -year old female employee, had her
salary cut in half and l ost her benefits. Id. Cantor Lori
Corrsin, a 60-year old female employee with a disability, was
refused leave to recover from a foot surgery and was
subsequently terminated.

Id. Indira Tawari, a 42 - year old female

employee, who worked for the Congregation for 25 years , was
terminated without proper notice or cause . Id. Norma Balass, a
female employee over the age of 70, was terminated and replaced
by two female employees in their 20s . Id. Marion Hedger , a 49year o ld female, and Phyllis Treichel, a 52-year old female ,
were terminated.

Id.

11

Plaintiff fi l ed a Charge of Discrimination with t he
United States Equal Employment Opportunity Commission (" EEOC " )
on February 29 , 2016. Id.

~

32. On September 14, 2016 , the EEOC

issued Plaintiff a Notice of Right to Sue upon her request.

Id .

at Ex . A.

III.

The Applicable Standards

The Rule 12(b) (6) standard requires that a complaint
plead suff i cient facts to state a claim upon which relief can be
granted. Ashcroft v . Iqbal , 556 U. S . 662 , 677 - 78
Atl. Corp. v . Twombly , 550 U.S. 544 , 570

(2009) ; Bell

(2007) . On a motion to

dismiss under Fed . R. Civ. P 12(b) (6) , all factual allegations
in the complaint are accepted as true , and all reasonable
inferences are drawn in the plaintiff ' s favor . Littlejohn v.
City of N . Y ., 795 F.3d 297 , 306 (2d Cir . 2015); Mills v.
Molecular Corp. , 12 F.3d 1170, 1174

Polar

(2d Cir . 1993) . However, " a

plaintiff's obligation to provide the grounds of his entitlement
to rel i ef requires more than labels and conclusions." Twombly,
550 U. S . at 555 (quotation marks omitted) . A complaint must
contain "sufficient factual matter, accepted as true, to ' state
a claim to relief that is plausible on its face. '" Iqbal , 556
U. S . at 663 (quoting Twombly , 550 U. S. at 570) .

12

A claim is facially plausible when "the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged ." Id.

(quoting Twombly, 550 U. S . at 556). In

other words, the factual allegations must "possess enough heft
to show that the pleader is entitled to relief." Twombly , 550
U.S. at 557

(internal quotation marks omitted) .

Additionally , while "a plaintiff may plead facts
alleged upon information and belief ' where the belief is based
on factual information that makes the inference of culpabi lit y
plausible ,' such a ll egations must be 'a ccompanied by a statement
of the facts upon which the belief is founded.'" Munoz-Nagel v .
Guess, Inc., No. 12-1312, 2013 WL 1809772, at *3 (S.D.N.Y . Apr.

30, 2013)

(quoting Arista Records, LLC v . Doe 3, 604 F.3d 110,

120 (2d Cir . 2010)) and Prince v . Madison Square Garden, 427 F.
Supp . 2d 372, 384

(S.D . N.Y . 2006) ; see also Williams v.

Calderoni , No. 11 - 3020 , 2012 WL 691832 , *7

(S.D .N. Y. Mar . 1,

2012). The pleadings, however, "must contain something more than
. a statement of facts that merely creates a suspicion [of]
a legally cognizable right of action ." Twombly,

13

550 U. S. at 555

(quoting 5 CHARLES ALAN W
RIGHT

&

ARTHUR R . MILLER, FE D
ERAL PRACTICE AND

PROCEDURE § 121 6 (3d ed . 2004)) .

IV.

The Motions to Dismiss are Denied

Since Defendants , including Rabbi Hoffman , have raised
the "ministerial exception" as an affirma t ive defense to
Plaintiff's employment discrimination claims , Defs .' Mem . at 1
and Hoffman Mem. at 6, the Court must determine "whether the
exception applies as an absolute bar to Plaintiff ' s statutory
claims. " Moren o v . Episcopal Di o cese of Long Island , No.
CV147231JSAKT , 2016 WL 8711448 , at *7

(E . D. N. Y. Jan. 20 , 2016) ,

report and rec ommendation adopted , No . 14-CV-7 2 31 (JS) (AKT) , 2016
WL 8711394

(E.D . N. Y. Mar . 4 , 2 01 6 ) . The Defendants bear the

burden of establishing the applicability of the ministerial
exception. See Fratello v . Roman Catholic Archdiocese of New

York,

1 75 F . Supp . 3d 152, 161 (S . D. N. Y. 2016) , aff ' d sub nom.

Fratello v. Archdiocese of New York , No. 16 -1 271, 2017 WL
2 989706 , at *1 (2d Cir. July 14 , 201 7) .

In Ho sanna-Tabor Evangelical Lutheran Church and Sch.

v . EEOC, 565 U. S. 171 (2012), the Supreme Court recognized the
existence of a "'ministerial exception ,' grounded in the First
Amendment, that precludes application of [Title VII and other
14

employment discrimination laws] to claims concerning the
employment relationship between a religious institution and its
ministers." Id. at 188; see Rweyemamu v. Cote , 520 F.3d 198, 207
(2d Cir. 2008)

(formally adopting the ministerial exception and

affirming "t he vitality of that doctrine in the Second
Circuit ." ) . The exception "protects more than just 'minist ers'
and [ ] is not confined to the Christian faith[ . ]" Id . at
206 (internal citations omitted) . 1

To invo ke the exception , a religious instituti o n need
not show it acted for a religious reason. "The exception instead
ensures that the authority to select and control who will
minister to the faithful -

a matter 's tr i ct l y ecclesiastical ,'

is the church 's alone." Hosanna-Tabor , 565 U.S. at 194-95
(internal citation omitted) . This is because, "[a]rmed only with
the l aw as written and the tools of judicial reasoning, courts
are ill-equipped to assess whether , and to what extent , an
employment dispute between a minister and his or her religious
group is premised on religious grounds." Fratello, 2 017 WL
2989706 , at *10 (citing Paul Horwitz, Act I I I of the Ministerial
Exception, 106 Nw. U. L. Rev. 973 , 979 (2012)

(asserting that

Hosanna-Tabor "confirmed" the principle that "judges cannot

1
I n the s ame vein , r e f erences to " chu rch n in va ri ou s q uotat i ons fr om othe r
ca ses app ly more broadly to any "rel i g i o u s i n stit u t i on .n

15

evaluate the kinds of religious questions that come up in
employment discrimination cases involving ministerial employees "
because they "are simply incompetent to address them")).

"The 'ministerial exception' therefore operates to
ensure that, in accordance with the First Amendment , the
government is not permitted to interfere or otherwise entangle
itself 'with an internal church decision that affects the faith
and mission of the church itself.'" Moreno,
*7

2016 WL 8711448 , at

(quoting Hosanna-Tabor, 565 U.S. at 190). The exception also

guarantees that the government cannot "[r]equir[e] a church to
accept or retain an unwanted minister, or punish[] a church for
failing to do so." Hos anna - Tabor, 565 U.S. at 188. Such action
would "infringe[ ] the Free Exercise Clause , which protects a
religious group 's right to shape its own faith and mission
through its appointments" while also violat in g the
"Establishment Clause, which prohibits government involvement in
ecclesiastical decisions." Id. at 1 88 - 89 ; see Rweyemamu, 520
F.3d at 208

(recognizing that the Free Exercise Clause "protects

a church's right to decide matters of governance and internal
organization " while the Establishment Clause "forbids excessive
entanglement with religion")

(internal quotations and citations

omitted).

16

As the Seco nd Circuit recently held, "in d ete rmining
whether th e ministerial exception bars an employment discrimination claim against a religious organization, 2 the only
question is whether the empl oyee qua li fies as a

'minis ter'

within the meaning of the exception." Fratello, 2017 WL 2989706 ,
at *l . Neither the Supreme Court in Ho sanna-Tabo r nor the Second
Circuit in Rweyemamu set forth a bright-line test to determine
whether an employee qualifies as a minister. See Hosanna-Tabor,
565 U.S. at 190 ("We are reluctant, h owever, t o adopt a rigid
formula for deciding when an employee qualifies as a
minister." ) ; Rweyemamu , 520 F.3d at 208

("While we agree that

courts should consider the fun c ti o n of an emplo y ee, rather than
his t itle or the fa c t o f his o rdinati o n .

. we still find this

approach too rigid as it fails to consider the nature of the
dispute. " ) . Instead, "Ho sanna-Tabo r instructs us to assess a
broad array o f relevant 'considerations,' in c luding but not
limited t o ( 1 ) the employee's 'f ormal title,'
reflected in that title,'

(2)

'the substance

(3) the employee 's 'us e of th[e ]

The Congregation is a Jewish synagogue , see Compl . ~~ 5 , 34 - 35 , and because
it is a traditional religious organization , it is presumptively a religious
organization . See Moreno , (" [A] n in - depth analysis with respect t o whether
the Diocese is a 'religious organization ' is unnecessary since it is
admittedly a traditional religious organization within the meaning of the
ministerial exception ." ) ; see also Rweyemamu , 520 F . 3d at 209 (finding
without discussion that Roman Catholic Diocese was a religious organization) ;
Friedlander v . Port Jewish Ctr ., 347 Fed . App ' x 654 , 655 (2d Cir . 2009) (same
with respect to Jewish temple). Plaintiff has also acknowledged that " [t]here
is no disputing the fact that [the] Congregation is a religious institution ."
Opp ' n to Defs .' Mot . at 9 .
2

17

title,' and ( 4)

'the important religious functions she

performed.'" Fratello, 2017 WL 2989706, at *1 (quoting HosannaTabor,

565 U.S. at 192).

Because the analysis is fact-intensive, whether the
ministerial exception applies is often addressed at the motion
for summary judgment stage. See, e.g.,

Fratello, 175 F. Supp. 3d

at 161 (deciding whether the ministerial exception applied on a
motion for summary judgment); Richardson v. Nw. Christian Univ.,
No. 6:15-CV-01886-AA, 2017 WL 1042465, at *1
2017)

(D. Or. Mar. 16,

(same); Rodarte v. Apostolic Assembly of the Faith in

Christ Jesus, No. CV H-10-4181, 2012 WL 12893656, at *5

Tex. Feb. 29, 2012)

(S.D.

(same); see also Cannata v. Catholic Diocese

of Austin, 700 F.3d 169, 172 (5th Cir. 2012)

(noting that

because the lower court considered material outside the
pleadings in deciding a motion to dismiss, it was considered a
motion for summary judgment); Collette v. Archdiocese of
Chicago, 200 F. Supp. 3d 730, 734

(N.D. Ill. 2016)

(denying

motion to dismiss based on ministerial exception where the
complaint contained insufficient information about the
plaintiff's role and directing the parties to engage in limited
discovery on the issue); Herzog v. St. Peter Lutheran Church,
884 F. Supp. 2d 668, 669 (N.D. Ill. 2012)

18

(converting the motion

to dismiss into a motion for summary judgment before deciding
it). Only where the facts as alleged in the complaint
definitively resolve the question should courts decide the issue
at the motion to dismiss stage. See, e.g., Moreno,
8711448, at *8

2016 WL

(granting a Rule 12(c) motion for judgment on the

pleadings, analyzed as a motion to dismiss, because the "plain
text of the Complaint consistently refers to Plaintiff as
'Reverend,'" the plaintiff conceded he was "employed as a
Priest," the plaintiff "graduat[ed] from the Episcopal
Seminary"); Penn v. New York Methodist Hosp., No. 11-CV-9137
NSR, 2013 WL 5477600, at *6 (S.D.N.Y. Sept. 30, 2013)

(granting

a motion to dismiss where plaintiff alleged in the complaint
that he was "primarily responsible for ministry")

(emphasis in

original).

Here, the Plaintiff's allegations in the FAC do not
provide a clear-cut answer to whether the ministerial exception
applies. Plaintiff's title of "Librarian," for instance, was
secular, which weighs against the application of the ministerial
exception. Likewise, the substance reflected in that title, at
first glance, appears secular. However, "a title," though
"surely relevant," is not "by itself" dispositive. HosannaTabor,

565 U.S. at 193; see also id. at 202

19

(Alito, J.,

concurring)

(noting that "a [religious] title is neither

necessary nor sufficient"); Rweyemamu, 520 F.3d at 2 0 6-07
(noting that the ministerial exception has been applied to a
press secretary, Jewish nursing-home staff, and a music
director) . Indeed, many of the facts alleged by the Plaintiff
could indicate that she did act as a minister of the
Congregation by furthering its mission. Plaintiff notes that her
duties included "facilitating and organizing reading groups and
a congregation-wide read-along with relevant lectures," that she
"Chaired the Association of Jewish Libraries 2004 National
Convention held in Brooklyn, New York," and that she was
"appointed to represent the Association of Jewish Libraries as a
member of an advisory committee for the American Theological
Library Association's planning grant." Compl. i i 34-35. In
addition, Plaintiff "created a functioning Judaica library in
the newly renovated Stettenheim Library," id., and "initiated
and played a major role in planning significant lecture series
within the Congregation over the 17 years of employment,"
id. at i

65.

While these facts are not necessarily strong evidence
that Plaintiff qualifies as a minister by performing important
religious functions on behalf of the Congregation, they may be

20

..
sufficient in light of this Court's approach to applying the
ministerial exception based on the logic that "the more
religious the employer institution is, the less religious the
employee's functions must be to qualify." Penn v. New York
Methodist Hosp.,

158 F. Supp. 3d 177, 182 (S.D.N.Y. 2016)

(agreeing with Musante v. Notre Dame of Easton Church, No.
CIV.A. 301CV2352MRK, 2004 WL 721774, at *6 (D.Conn. Mar. 30,
2004) that "[t]he ministerial exception should be viewed as a
sliding scale, where the nature of the employer and the duties
of the employee are both considered in determining whether the
exception applies"). However, without additional facts as to
Plaintiff's role and the Congregation's "mission," the Court
cannot definitively conclude that the ministerial exception does
or does not apply in this case.

In sum, development of the record is necessary on
whether Plaintiff performed "many religious functions to advance
the [religious organization's] mission." Fratello, 2017 WL
2989706, at *6, 13 ("After finding that it could not determine
whether the ministerial exception applied to Fratello's claims
on a motion to dismiss, the district court appropriately ordered
discovery limited to whether Fratello was a minister within the
meaning of the exception."); see also Cannata, 700 F.3d at 172

21

'.

n.3

(affirming summary judgment that Music Director's position

was ministerial but observing: "Given the nature of the
ministerial exception, we suspect that only in the rarest of
circumstances would dismissal under rule 12(b) (6) -

in other

words, based solely on the pleadings - be warranted." ) .

Accordingly, Defendants' and Rabbi Hoffman's motions
to dismiss are denied. The parties will meet and confer with
respect to discovery and motion schedule limited to the
ministerial exception defense. Because the ministerial
exception, if applicable, acts as an "absolute bar" to
Plaintiff's claims, Moreno,

2016 WL 8711448, at *7, the

remaining arguments made on the motion to dismiss will not be
addressed at this time.

V.

Conclusion

Based upon the conclusions set forth above, the
motions to dismiss the FAC of the Plaintiff are denied.

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'

'

It is so ordered.

New York, NY
July

1$"'

201 7

U.S.D.J.

23