Penn v. New York Methodist Hospital et al
Filing
111
OPINION AND ORDER re: 93 MOTION for Summary Judgment Defendants' Notice of Motion for Summary Judgment filed by Peter Poulos, New York Methodist Hospital. For the reasons stated above, Defendants' motion for summary judgme nt is GRANTED, and the Complaint should be dismissed in accordance with this opinion. The clerk is respectfully directed to terminate the motion at ECF No. 93 and close this case. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 1/20/2016) (mml)
USDCSDNY
DOCUMENT
ELECTRONICALLY FILED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DOC#: _ _ _+--;--DATE FILED: //'"l-0 fJ-o!Ce
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MARLON PENN
Plaintiff,
ll -cv-913 7 (NSR)
-againstOPINION AND ORDER
THE NEW YORK METHODIST HOSPITAL and
PETER POULOS,
Defendants.
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NELSON S. ROMAN, United States District Judge
Plaintiff, Marlon Penn ("Plaintiff') commenced the instant action against his former
employer New York Methodist Hospital ("NYMH" or the "Hospital") and his former supervisor
Peter Poulos ("Poulos") (collectively "Defendants"), seeking monetaiy damages for wrongful
termination. In his second amended complaint ("Complaint"), Plaintiff asse1ted two causes of
action against Defendants, one for discrimination and the other based on retaliation. By Opinion
and Order, dated September 30, 2013, the Court granted Defendants' motion to dismiss to the
limited extent of dismissing Plaintiffs claims pursuant to 42 U.S.C. § 1981 for discrimination on
the basis of his race and religion as against both defendants, dismissing Plaintiffs Title VII claim
against NYMH with respect to discriminatory actions which occurred prior to November 12,
2009, and dismissing Plaintiffs claim under Title VII for discriminatory termination of
employment on the basis of race or religion.
Defendants now move, pursuant to Federal Rule of Civil Procedure 56(a), for summary
judgment on the remaining claims. Defendants asse1t that (a) the "ministerial exception" to
discrimination cases bars the claims asse1ted by this ministerial employee against his religious
institution employer, and (b) in the alternative, no reasonable jury could find for Plaintiff on his
claims of discrimination and retaliation. For the following reasons, Defendants’ motion for
summary judgment is granted.
BACKGROUND
In the Complaint, Plaintiff asserts that he is an African-American, a Methodist, an
ordained minister, and a Board Certified chaplain. (Compl. ¶¶ 14, 20.) Defendant NYMH, a New
York not-for-profit corporation located in Brooklyn, New York, is a member of the New YorkPresbyterian Healthcare System and is a non-sectarian, voluntary institution. (Id. ¶¶ 15–16.)
NYMH has a Pastoral Care Department which is supervised by Defendant Poulos. (Id. ¶ 17.)
Defendants hired Plaintiff as a resident chaplain in January 2002, and then again as a
Duty Chaplain in July 2004. (Plaintiff’s Statement of Disputed Material Facts Pursuant to Local
Civil Rule 56.1(b) (“Pl.’s 56.1”), ECF No. 108, ¶ 19.) As duty chaplain, Plaintiff worked one 24hour weekend shift each week, from Sunday 9:00 a.m.-Monday 9:00 a.m., interacting with other
chaplains for about 30 minutes on Monday mornings. (Id. ¶ 21.) From approximately 2004 to
2010, Plaintiff also worked a Wednesday shift. (Id. ¶ 22.) Over the years, Plaintiff repeatedly
made requests to Poulos for additional hours, additional shifts, or a full-time position but was
denied. (Id. ¶ 39.)
In his role as chaplain, Plaintiff was “primarily responsible for ministry” to patients and
their families, and his responsibilities—among other things—included “distribut[ing] of Bibles
to all patient units,” “conduct[ing] in-Hospital memorial service[s],” “maintain[ing] an active,
on-going Pastoral care to staff,” “providing communion to nurses,” and “[conducting] Easter
services, (Compl. ¶¶ 24, 29(b)–(c)). Throughout his tenure at the Hospital, Plaintiff was
commended on several occasions for his excellent work performance. (Pl.’s 56.1, ¶ 28(c).)
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Plaintiff was awarded letters of approbation for his attendance, and Poulos described Plaintiff as
“conscientious and reliable as Chaplain on Duty, functioning well in stressful situations.” (Id. ¶
28(b)–(c).)
In 2010, the Catholic Chaplain, Sister Therese Camardella, retired, leaving her position
open for a replacement. (Id. ¶ 35.) Poulos told Plaintiff that Sister Therese’s position was not
available to Plaintiff (who is a Methodist) because the position would only be filled by a Catholic
chaplain or a nun. (Id. ¶ 36(a).) Poulos contends that he attempted to replace Sister Therese with
a Catholic chaplain, but when he was unsuccessful, Poulos offered the position to Chaplain Joo
Hong, who Defendants believed was the best qualified applicant for the position. (Id. ¶¶ 41–42.)
Defendants allege that Poulos did not hire Plaintiff because he did not believe Plaintiff to be an
acceptable candidate to replace Sister Therese, based on the fact that he could not provide
“effective coverage.” (Id. ¶ 36.) Plaintiff instead contends that this failure to promote decision
was based on racial and religious discrimination. (Id. ¶ 43.) Poulos never discussed with Plaintiff
any alleged work performance issues or inability to provide effective coverage. (Id. ¶ 36(e).)
Based on the foregoing, on September 16, 2010, Plaintiff filed a discrimination complaint with
the New York City Commission on Human Rights (“HRC”), alleging that Defendants
discriminated against him on the basis of his race and religion. (Id. ¶ 55.) Plaintiff, however, did
not succeed on his complaint with the HRC. (Id. ¶ 60.)
Prior to Plaintiff’s filing of the complaint in September 2010, Poulos did not counsel
Plaintiff, reprimand him, write him up, or subject him to any disciplinary action on account of
his work performance at any time. (Id. ¶ 28(a).) Defendants claim that, after 2010, Plaintiff’s
work performance began to deteriorate, which eventually caused Defendants to terminate
Plaintiff. (See id. ¶¶ 67–115 (detailing issues with Plaintiff’s performance).) Specifically,
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Defendants allege numerous instances of misconduct, including (i) failing to log activities
regarding patients, (ii) failing to fill out a priest referral card for a patient, which led to the
patient’s demise without receiving his last rites, (iii) interacting with an interracial couple who
had just suffered a fetal demise in an insensitive and inappropriate manner, (iv) conducting an
Easter service for which he was unprepared and in which he was insensitive to Catholic
attendees who wished to receive communion, and (v) sexually harassing a fellow chaplain. (Id.
¶¶ 67–115.)
Plaintiff, however, believes that all the allegations of poor performance were “trumped
up” by Defendants, and the work performance complaints were procured by Poulos in order to
create a basis to fire Plaintiff. (See, e.g., id. ¶ 72; see generally id. ¶¶ 67–115.) Specifically,
Plaintiff alleges that on October 7, 2010, Poulos held a meeting with the Hospital’s Employee
Relations Manager and Director of Employee Relations, and at said meeting it was decided that
“[the Employee Relations Manager] will work with Peter Poluos[]” to procure enough data for
Plaintiff’s discharge. (Id. ¶ 64(a).) For example, Plaintiff believes that Poulos encouraged the
alleged sexual harassment victim to write an incident report detailing sexually inappropriate
conduct and later rewarded the victim “by retaining her to do an ‘unusual’ third year [clinical
pastoral education] Residency and ultimately promot[ing] her from the position of student
chaplain … to the position of Chaplain Manager.” (Id. ¶ 111.) Thus, Plaintiff believes the
allegations of misconduct are pretextual reasons for his termination.
STANDARD ON A MOTION FOR SUMMARY JUDGMENT
Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil
Procedure. “The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
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law.” Fed. R. Civ. P. 56(a). The moving party bears the initial burden of demonstrating the
absence of any genuine dispute or issue of material fact by pointing to evidence in the record,
“including depositions, documents . . . [and] affidavits or declarations,” id. 56(c)(1)(A), “which it
believes demonstrate[s] the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). The moving party may support an assertion that there is no genuine
dispute by “showing . . . that [the] adverse party cannot produce admissible evidence to support
the fact.” Fed. R. Civ. P. 56(c)(1)(B).
Once the moving party has fulfilled its preliminary burden, the onus shifts to the
nonmoving party to raise the existence of a genuine dispute of material fact. Id. 56(c)(1)(A);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). A genuine dispute of material fact
exists when “the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson, 477 U.S. at 248; accord Benn v. Kissane, 510 F. App’x 34, 36 (2d Cir. 2013);
Gen. Star Nat’l Ins. Co. v. Universal Fabricators, Inc., 585 F.3d 662, 669 (2d Cir. 2009); Roe v.
City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008); Jeffreys v. City of New York, 426 F.3d 549,
553 (2d Cir. 2005). Courts must “constru[e] the evidence in the light most favorable to the nonmoving party and draw[] all reasonable inferences in its favor.” Fincher v. Depository Trust &
Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010) (quoting Allianz Ins. Co. v. Lerner, 416 F.3d
109, 113 (2d Cir. 2005)). In reviewing the record, “the judge’s function is not himself to weigh
the evidence and determine the truth of the matter,” Anderson, 477 U.S. at 249; see also Kaytor
v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010) (“The function of the district court in
considering the motion for summary judgment is not to resolve disputed questions of fact.”), nor
is it to determine a witness’s credibility, Anderson, 477 U.S. at 249. Rather, “the inquiry
performed is the threshold inquiry of determining whether there is the need for a trial.” Id. at
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250.
DISCUSSION
Defendants assert that the “ministerial exception”—grounded in the Religion Clauses of
the First Amendment—applies to this case, such that the discrimination and retaliation claims
must be dismissed.
The First Amendment states in pertinent part: “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof . . . .” U.S. CONST. AMEND. 1.
Recently, the U.S. Supreme Court recognized the “ministerial exception” in Hosanna-Tabor
Evangelical Lutheran Church & School v. EEOC, 132 S. Ct. 694, 702 (2012), where the Court
ruled that the First Amendment prohibits the government from interfering with a religious
organization’s right to hire and fire ministers. As the Court explained:
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
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.
Id. at 697. Thus, the Court held that the ministerial exception “bars an employment
discrimination suit brought on behalf of a minister, challenging her church's decision to fire her.”
Id. at 698.
This Court previously examined the ministerial exception as applied in the instant case on
the Defendants’ motion to dismiss. The Court held that (1) Plaintiff was a ministerial employee,
and (2) the present dispute involves questions that would require the Court to examine Plaintiff’s
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spiritual functions. 1 See Penn v. New York Methodist Hosp., No. 11-CV-9137 NSR, 2013 WL
5477600, at *6 (S.D.N.Y. Sept. 30, 2013). The only question remaining is whether NYMH is a
“religious institution” for purposes of the ministerial exception. 2 While examining this question,
it is important to note that the Court agrees 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.”
Musante held that “[t]he more pervasively religious an institution is, the less religious the
employee's role need be in order to risk first amendment infringement.” Id. On the other hand,
where an employee’s role is extensively religious, a less religious employer may still create
entanglement issues. See Rweyemamu v. Cote, 520 F.3d 198, 208 (2d Cir. 2008) (“The more
‘pervasively religious’ the relationship between an employee and his employer, the more salient
the free exercise concern becomes.”). This Court has already explained that Plaintiff’s role was
1
Though Rweyemamu v. Cote, 520 F.3d 198, 208 (2d Cir. 2008) held that “a plaintiff alleging particular wrongs by
the church that are wholly non-religious in character is surely not forbidden his day in court,” the Hosana Tabor
Court explained that, in an employment discrimination suit, it is not essential for Defendant to allege a religious
reason for the adverse employment decision. Instead, the ministerial exception is broader and encompasses most
employment decisions regarding “who will minister to the faithful.” See Hosanna-Tabor Evangelical Lutheran
Church & Sch., 132 S. Ct. at 709 (“The purpose of the exception is not to safeguard a church's decision to fire a
minister only when it is made for a religious reason. The exception instead ensures that the authority to select and
control who will minister to the faithful—a matter “strictly ecclesiastical,” []—is the church's alone.”) (internal
citations omitted).
2
Plaintiff claims that, based on a representation made in a pre-motion letter, Defendants are estopped from arguing
that NYMH is a religious institution. This argument is without merit. Plaintiff was notified of the argument when
Defendants moved to dismiss on the ground that the ministerial exception applied, and thus, the parties conducted
discovery as to the issue. Moreover, Plaintiff had notice of the argument in Defendants’ moving papers, and the premotion letter is not binding on either party. See In re AutoHop Litig., No. 12 Civ. 4155(LTS)(KNF), 2013 WL
5477495, at *12 (S.D.N.Y. Oct. 1, 2013) (rejecting argument that defendant waived Rule 9(b) objection by failing to
specify it in pre-motion letter pursuant to the court’s individual practices rules as “unavailing”); JP Morgan Chase
Bank, N.A. v. Law Office of Robert Jay Gumenick, P.C., No. 08 Civ. 2154(VM), 2011 WL 1796298, at *3 (S.D.N.Y.
Apr. 22, 2011) (holding insufficient service not waived by omitting it from pre-motion letter).
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pervasively religious. Plaintiff was “primarily responsible for ministry to certain NYMH’s
patients and their families.” (See Compl. ¶ 28.) In light of Plaintiff’s exceedingly ministerial role,
application of the ministerial exception to a less religious institution may be warranted.
According to Hosanna-Tabor, a religious institution for purposes of the ministerial
exception is not limited to traditional churches. Hosanna-Tabor, 132 S. Ct. at 706. Though the
Second Circuit has not addressed the extent to which “religious institution” covers organizations
other than traditional churches, other courts have held that—for purposes of the ministerial
exception—religiously affiliated schools, hospitals and corporations can qualify as "religious
institutions." See Shukla v. Sharma, 2009 U.S. Dist. LEXIS 90044, *14–15 (E.D.N.Y. Aug. 14,
2009) (citing EEOC v. Catholic Univ., 83 F.3d 455, 461, 317 U.S. App. D.C. 343 (D.C. Cir.
1996) (church affiliated university); Natal v. Christian & Missionary Alliance, 878 F.2d 1575,
1578 (1st Cir. 1989) (non-profit religious corporation). Courts confronted with the “religious
institution” issue tend to examine the extent to which the organization has religious
characteristics. For example, in Scharon v. St. Luke's Episcopal Presbyterian Hosp., a terminated
hospital chaplain brought Title VII and ADEA claims against her former employer, and the court
held that the chaplain fell within the ministerial exception because the hospital was acting as "an
institution with 'substantial religious character.'" 929 F.2d 360, 362 (8th Cir. 1991) (citing Lemon
v. Kurtzman, 403 U.S. 602, 616, 91 S. Ct. 2105, 2113, 29 L. Ed. 2d 745 (1971)). Similarly, the
Supreme Court—citing the Fourth Circuit— held that a “religiously affiliated entity is a
‘religious institution’ for purposes of the ministerial exception whenever that entity's mission is
marked by clear or obvious religious characteristics.” Hosanna-Tabor, 132 S. Ct. at 706 (quoting
Shaliehsabou v. Hebrew Home of Greater Washington, Inc., 363 F.3d 299, 310 (4th Cir. 2004)).
Thus, this Court’s task is to determine to what extent NYMH’s mission and character incorporate
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religious attributes.
Plaintiff contends that NYMH lost its religious character and affirmatively severed ties
with the church when it amended its Certificate of Incorporation in 1975 and removed all
reference to its “Church related character” and “relationship with The United Methodist
Church.” (See Pl.’s Brief, 7.) Though the Court recognizes that this amendment caused NYMH
to sever all formal ties with The United Methodist Church, that fact is not dispositive of the
inquiry. Severing a formal affiliation with the Church does not necessarily imply that the
Hospital does not maintain any church-based relationship or have any religious characteristics. 3
Defendants explain that although NYMH is no longer corporately owned by the
Methodist Church, the hospital has always retained a “traditional relationship” with the church.
(See Defs.’ Brief, 16.) This is evidenced by the fact that the Hospital maintained “Methodist” in
its title, despite an affirmative name change in 1993 when the Hospital affiliated with the New
York Hospital. (See Deposition of Lyn Hill, ECF No. 101, Exhibit A, at 25:4-6.) In addition, the
Hospital’s mission statement explains that the Hospital has a historic relationship with the United
Methodist Church and includes the objective of providing an active ecumenical program of
pastoral care and conducting a clinical pastoral program. (See NYMH Employee Handbook, ECF
No. 101, Exhibit C, at 6.) The Hospital Bylaws also require the Board to have—at all times—
significant representation from the United Methodist Church. (Bylaws, ECF No. 101, Exhibit D,
at 4, Art. III, Section 2(c).) Based on the foregoing and additional statements from the record, it
is clear to the Court that NYMH continues to maintain a connection to the church and operate the
3
For the same reason, the Court finds the NYMH statement in the publication titled “Communicating the UM
Connection to Employees” that “it is no longer formally affiliated with a connectional unit of The United Methodist
Church” unpersuasive. (“Communicating the UM Connection to New York Methodist Hospital Employees,” UMA
Journal, Vol. 1, No. 8 (1994), ECF No. 101, Exhibit E.)
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Hospital with religious values. (See Deposition of Lyn Hill, NYMH Vice President of
Communications and External Affairs, ECF No. 101, Exhibit A, at 24:12–19 (“We continue to
have a pastor’s clinic which is run several times a year, where Methodist ministers come to the
hospital for a week and receive free health screenings and education about the hospital. We have
a yearly philanthropic appeal to the Methodist churches in our community”; Id. at 26:20–22
(“Every employee when they come to orientation is reminded that the patients are human beings
who are created in the image of God”); Id. at 26:7–11 (“We have a very rich chaplaincy
program. We have a 24/7 chaplaincy program, which not necessarily the case at other hospitals.
We have our own clinical pastoral education programs, which is the case at very few hospitals.”;
“Communicating the UM Connection to New York Methodist Hospital Employees,” UMA
Journal, Vol. 1, No. 8 (1994), ECF No. 101, Exhibit E (detailing how the hospital maintains its
Methodist “connection” through its everyday values, financial support from the Methodist
church, etc. and stating that “the Methodist influence lives on”).)
Plaintiff urges the Court to ignore these indicia of religious affiliation and to hold that the
Hospital is not a religious institution because the “Welcome Letter” on NYMH’s website and the
publication entitled “Residency Program in Internal Medicine” state that NYMH is now a secular
institution. Though NYMH may be primarily a secular institution, with regards to its
employment of the Plaintiff, the Hospital was acting as a religious organization. See Scharon,
929 F.2d at 362 (citing Lemon v. Kurtzman, 403 U.S. 602, 616, 91 S.Ct. 2105, 2113, 29 L.Ed.2d
745 (1971)) (“Importantly for our purposes, St. Luke's was acting as a religious institution as
Scharon's employer, and Scharon's position as a Chaplain at St. Luke's was ‘clergy.’ While St.
Luke's provides many secular services (and arguably may be primarily a secular institution), in
its role as Scharon's employer it is without question a religious organization. … It cannot
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seriously be claimed that a church-affiliated hospital providing this sort of ministry to its patients
is not an institution with ‘substantial religious character.’”). Plaintiff argues that the Department
of Pastoral Care’s mission was to provide “spiritual” care, rather than “religious” care, and
therefore the institution was not a religious one, even in its employment of Plaintiff. (Pl.’s 56.1, ¶
14.) First, the Court fails to see a meaningful distinction between spiritual and religious. 4
Second, as outlined above, though NYMH employs pastors of all faiths, it maintains a
connection with the United Methodist Church, and its mission statement emphasizes an
“ecumenical program of pastoral care.” Therefore, insofar as Plaintiff is a Methodist and was
responsible—at least in part—for preaching the Christian faith, 5 the relationship between
Plaintiff and NYMH (specifically, the pastoral care department) was that of a religious employee
and a religious institution. This case does not present the Court, nor will the Court venture out to
decide, whether this holding would apply to a religious institution’s employment of a minister,
pastor, or chaplain of a different faith.
In light of the foregoing, the Court finds sufficient indicia of religious affiliation to create
a First Amendment issue. Therefore, Plaintiff’s claims are barred by the Free Exercise Clause
and the Establishment Clause of the First Amendment, and the case must be dismissed.
4
Black’s Law Dictionary defines “spiritual” as “[o]f, relating to, or involving ecclesiastical rather than secular
matters.” SPIRITUAL, Black's Law Dictionary (10th ed. 2014). Webster’s Dictionary defines “spiritual” as (1) of or
relating to a person's spirit, or (2) of or relating to religion or religious beliefs. See http://www.merriamwebster.com/dictionary/spiritual (last visited 1/15/2015).
5
For example, Plaintiff conducted Easter services at the Hospital and distributed Bibles. (Compl. ¶ 24.)
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CONCLUSION
For the reasons stated above, Defendants' motion for summary judgment is GRANTED,
and the Complaint should be dismissed in accordance with this opinion. The clerk is respectfully
directed to terminate the motion at ECF No. 93 and close this case.
SO ORDERED:
Dated: January 'J-o, 2016
White Plains, New York
NEI&
United States District Judge
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