Fratello v. Roman Catholic Archdiocese of New York
OPINION AND ORDER re: 90 MOTION for Summary Judgment . filed by St. Anthony's School, Roman Catholic Archdiocese of New York, St. Anthony's Shrine Church, 103 MOTION for Summary Judgment (Plaintiff's Motion ). filed by St. Anthony's School, Roman Catholic Archdiocese of New York, St. Anthony's Shrine Church. Defendants' Motion for summary judgment is GRANTED and Plaintiff's Cross-Motion to strike Defendants' ministeri al-immunity defense is DENIED. The federal claims are dismissed with prejudice and the state claims are dismissed without prejudice. The Clerk of Court is respectfully directed to terminate the pending Motions, (Docs. 90, 103), enter judgment for Defendants, and close the case. SO ORDERED. (Signed by Judge Cathy Seibel on 3/29/16) (yv)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OPINION AND ORDER
- against ROMAN CATHOLIC ARCHDIOCESE OF NEW YORK,
ST. ANTHONY’S SHRINE CHURCH, and
ST. ANTHONY’S SCHOOL,
No. 12-CV-7359 (CS)
Michael D. Diederich, Jr.
Stony Point, New York
Counsel for Plaintiff
Kenneth A. Novikoff
Barry I. Levy
Rivkin Radler LLP
Uniondale, New York
Counsel for Defendants
Before the Court are Defendants’ Motion for summary judgment, (Doc. 90), and
Plaintiff’s Cross-Motion to strike Defendants’ ministerial-immunity defense, (Doc. 103). For the
reasons set forth below, Defendants’ Motion is GRANTED and Plaintiff’s Motion is DENIED.
The following facts are based on the parties’ Local Rule 56.1 statements1 and responses
thereto, and supporting materials, and are undisputed except where noted.
“P’s Counter 56.1” refers to Plaintiff’s Response & Counterstatement to Defendants’ Rule 56.1 Statement, (Doc.
108). “Ds’ Counter 56.1” refers to Defendants’ Response and Counter-Statement to Plaintiff’s Rule 56.1 Statement,
(Doc. 115). The parties, particularly Plaintiff, included blanket denials, legal arguments and/or hypertechnical or
Plaintiff Joanne Fratello is a former principal of St. Anthony’s School (the “School”), a
Catholic elementary school located in Nanuet, New York. (See Ds’ Counter 56.1 ¶ 13; AC ¶¶ 1,
12, 13, 19.)2 Defendants are the Archdiocese of New York (the “Archdiocese”), St. Anthony’s
Shrine Church and the School. (AC ¶¶ 2, 5, 7.) Plaintiff served as principal of the School from
2007 until 2011, when her contract was not renewed for the 2011-2012 school year. (Ds’
Counter 56.1 ¶¶ 11, 21, 106.) Plaintiff alleges that the decision to terminate her employment was
the result of gender discrimination and retaliation, and she now seeks relief in this Court. (AC
A. Factual Background
The School, which is chartered under the laws of New York, is run by the Archdiocese.
(Ds’ Counter 56.1 ¶ 31; AC ¶¶ 34-38, 114.) Before addressing the specifics of Plaintiff’s
employment, it is useful to examine the Archdiocese’s and the School’s mission statements and
manual, as well as the role of its principals in the abstract.
1. The Mission and Manual of the Archdiocese of New York and St. Anthony’s School
The website of the Catholic Schools in the Archdiocese of New York proclaims that its
mission is “to ensure [its] schools are Christ-centered, academically excellent, and welcoming
communities that teach students to be life-long learners and leaders energized by fidelity to
inapplicable objections in their responses to the other party’s Local Rule 56.1 Statement. As counsel knows,
“[f]ailure to specifically controvert facts contained in the moving party’s Local Rule 56.1 Statement, or failure to
support any such response with record references allows the Court to deem the facts proffered by the moving party
admitted for purposes of a summary judgment motion.” Edmonds v. Seavey, No. 08-CV-5646, 2009 WL 2949757,
at *1 n.2 (S.D.N.Y. Sept. 15, 2009); see also Montauk Oil Transp. Corp. v. Sonat Marine Inc., No. 84-CV-4405,
1986 WL 1805, at *8 (S.D.N.Y. Feb. 3, 1986) (“[R]eliance on legal conclusions – unsupported by specific facts –
and general denials does not create a genuine factual dispute under Rule 56.”). Plaintiff in particular in her 56.1
response followed the circular practice of disputing a proposition set forth by Defendants without pointing to
contrary evidence except her own affidavit, which did not address the issue but rather stated in blanket fashion that
all responses to Defendants’ 56.1 statement were accurate. This does not, in the Court’s view, amount to
specifically controverting the proposition. Nevertheless, in an excess of caution, I have not, in deciding these
Motions, relied on any facts the parties purport to dispute. Had I held the parties strictly to the requirements of
Federal Rule of Civil Procedure 56 and Local Rule 56.1, it would only have strengthened my conclusion.
“AC” refers to the Amended Complaint, (Doc. 9).
Christ, the Church, and one another.” (Novikoff Decl. Ex. A, at 2-3.)3 The Archdiocese’s
website further describes the “Catholic school experience” as follows:
Our Catholic faith is central to what we do, and we proudly teach it. Gospel
ideals permeate the substance and structure of our lessons. We share our faith
through daily prayer and the regular celebration of Mass as a school community.
We foster a spirit of Christian service as an expression of our concern for the
needs of others. Character formation and personal spirituality are rooted in the
study of Catholic teachings and tradition, as well as sacramental preparation. Our
academic programs grounded in basic skills meet the varied needs of each school
community by incorporating technology, advanced math, hands-on science, and
foreign language coupled with the various forms of art study. We offer a
forward-focused curriculum, integrating technology into classroom instruction,
preparing our students to compete in an increasingly complex world.
(Id.) Similarly, the School’s mission is to “provide a high-quality, educational experience that
enhances each child’s spiritual, emotional, intellectual and social growth. Our faculty and staff
prepare our students to become future leaders and responsible stewards of God’s creation.” (See
Ds’ Counter 56.1 ¶ 7.) Religion is a central part of the School curriculum. (See P’s Counter 56.1
¶¶ 92-97.) At the same time, the School is required, by law, to provide its students with an
education substantially equivalent to that of public schools. (Ds’ Counter 56.1 ¶ 72.)
The Archdiocese disseminates an Administrative Manual (the “Manual”) that delineates
policies and procedures for principals and other administrators. (See generally Admin.
Manual.)4 In a cover letter for the Manual, addressed “Dear friends in the Lord,” Edward
Cardinal Egan, Archbishop of New York at the time of the Manual’s issuance, wrote to
As principals in the schools of the Archdiocese of New York, you are providing
splendid leadership to your teachers and staff and excellent academic and spiritual
formation to your students. This is demanding work, and I am deeply grateful for
the wisdom and devotion with which you do it. With each passing year, it
“Novikoff Decl.” refers to the Declaration of Kenneth A. Novikoff, (Doc. 91).
“Admin. Manual” refers to Exhibit A to the Declaration of Mary Jane Daley (“Daley Decl.”), (Doc. 94).
becomes more and more clear to our Catholic faithful and the community at large
that we are all greatly in your debt.
This revised Administrative Manual is designed to assist you in the administrative
tasks you must fulfill in providing the structure needed to carry out the vital work
of Catholic education. The updated sections and materials give evidence of the
growing demands required to provide the appropriate learning environment, and
[sic] environment which enables each of our schools to offer quality academic
education infused with the Catholic Faith and values that are so needed by the
young people who come to us.
Again, I thank you for having accepted the vocation and challenge of leadership
in Catholic education. Be assured of my prayers and support for your work which
is so crucially important to the Church in New York.
(Admin. Manual at 023753.) Another letter within the Manual is addressed to principals from
Michael Ramos, Associate Superintendent of Schools for Professional Recruitment, and states:
“The Catholic school is essential to the Church in fulfilling its teaching mission. . . . . It is your
responsibility as principal to establish a climate which is identifiably Catholic and which
nurtures the growth of teachers and students in all dimensions of life.” (Id. at 023923.)
The Manual also contains a job description for principals. It states:
The principal is the leader of the school, a unique Catholic educational institution.
The principal is responsible for achieving the Catholic mission and purpose of the
school as well as the quality of teaching and learning that goes on in the school.
S/he is the animator of the community of faith within the school. . . .
The principal must of necessity be involved in every aspect of the school
operation. The principal oversees the areas of religious education, curricula
instruction, formulation and communication of school policy, supervision of
personnel, staff recruitment and development, student recruitment, maintenance
of school records, discipline and co-curricular activities.
(Id. at 023924.) The Manual goes on to describe a principal’s role in providing “Catholic
leadership” as follows:
The principal cooperates with the pastor in recruiting and maintaining a staff
committed to the goals of a Catholic school; cooperates with the pastor in his
religious ministry to the students; ensures adherence to the curriculum guidelines,
Guidelines for Catechists, 1998; monitors the acquisition of catechetical
certification for teachers of religion, directs the implementation of the religious
education program, is committed to the mission of evangelization, involves the
staff in formulating plans that enable the school to meet its religious goals;
provides opportunities for student, faculty, and parent participation in liturgical
and paraliturgical services; initiates programs that inculcate an attitude and foster
the practice of service to others; motivates the students to take an active part in
the life of the parish; promotes in faculty, students, and parents the concept of the
school as a community of faith; provides opportunities for the practice of this
concept; cooperates with the parish council by attending council meetings and by
keeping the council informed of school matters.
(Id. at 023803.) The Manual then lists a multitude of day-to-day responsibilities of the principal,
touching on “personnel management,” “office management,” “public and community relations,”
“budget and fiscal management,” “teacher development,” and “evaluation of students,” among
other responsibilities. (Id. at 023803-07.)
The Archdiocese’s website presents a summary of the principal’s role in its information
to prospective applicants for that post:
The Archdiocese of New York seeks committed Catholics who can inspire and
engage faculty, staff, parents and students in the pursuit of spiritual development
and academic excellence. These dynamic administrators should demonstrate
outstanding educational vision, professionalism, leadership skills, organizational
ability and interpersonal strengths to serve as Principals . . . . Candidates must set
high expectations and foster a culture of continuous improvement in which every
member of the school community works collaboratively to ensure the holistic
achievement of every student.
(Ds’ Counter 56.1 ¶ 22.)
Principals are evaluated by faculty of the school and the church’s pastor. (P’s Counter
56.1 ¶ 26.) In addition to more secular criteria, a principal is evaluated based on whether he or
she “fosters a Christian atmosphere which enables . . . students to achieve their potential,”
“reviews school philosophy and goals with the staff in accordance with current Church
documents,” and “gives priority to a comprehensive religious education program.” (Admin.
Manual at 023936, 023942, 023947.) Additionally, principals are asked to fill out a self-
evaluation form. (P’s Counter 56.1 ¶ 26.) The self-evaluation contains five questions, one of
which is, “What are my strengths in the areas of spiritual leadership, instructional leadership,
interpersonal relationships and management?” (Admin. Manual at 023942.)
Twenty-three percent of Archdiocese students are not Catholic, and practicing
Catholicism is not an explicit job requirement for its teachers, although the Archdiocese may
give preference to practicing Catholics. (Ds’ Counter 56.1 ¶¶ 42, 44, 46.) The Archdiocese
does, however, require that a candidate for the position of principal present a letter indicating
that he or she is a practicing Catholic. (P’s Counter 56.1 ¶ 21.) The Archdiocese also states that
principals must complete the Level 1 and Level 2 Catechist Certification Program within three
years of attaining that position. (Admin. Manual at 023808.) The Catechist Certification
Program is an online course that “provides theological understandings, spiritual/religious
formation and catechetical methodology.” (P’s Counter 56.1 ¶ 19.) Plaintiff maintains that this
certification requirement was aspirational but not strictly enforced by the Archdiocese. (Id.
¶ 18.) Plaintiff also asserts that although she is indeed Catholic, her academic credentials are in
education, and she does not have formal training in religion or theology. (See Ds’ Counter 56.1
2. Plaintiff’s Employment As Principal of St. Anthony’s School
When Plaintiff applied for the principal position at the School, she was interviewed by
the Archdiocese’s Principal Search Committee (the “Committee”). (P’s Counter 56.1 ¶ 49.)
According to Cathleen Cassel, the Regional Superintendent for Rockland County for the
Archdiocese and a member of the Committee at the time Plaintiff was interviewed, the
Committee sought to hire principals with “strong Christian values” who were dedicated to
providing teachers and students with “instruction in religious truth and value, maintaining a set
of educational policies which are in conformity with the religious beliefs and moral standards of
the Archdiocese and further fostering an educational environment which teaches students how to
live in accordance with the teachings of Jesus.” (Cassel Decl. ¶¶ 1, 5, 10.)5 Among the
questions asked by the Committee were some form of the following: (1) What is your personal
relationship with the church? (2) Why do you want to be principal of a Catholic school (as
opposed to a secular private school)? (3) What is your relationship with the pastor and the
parents at the current school you work in? (4) What do you think is a good religion lesson?
(5) What would you do at the school to implement communal prayer? (Id. ¶ 11.)
In 2007, Plaintiff signed a one-year “Lay Principal Contract” with the School, (Ds’
Counter 56.1 ¶ 12), subject to renewal annually. The contract provided:
The principal recognizes the religious nature of the Catholic school and agrees
that the employer retains the right to dismiss principal for immorality, scandal,
disregard or disobedience of the policies or rules of the Ordinary of the
Archdiocese of New York, or rejection of the official teaching, doctrine or laws of
the Roman Catholic Church . . . .
(Id. ¶ 16; see AC Ex. 14, at 2.) The contract did not specify Plaintiff’s responsibilities as
principal. (AC Ex. 14.)
Upon beginning her tenure as principal, Plaintiff implemented a new prayer system
within the School in order to get the students “more involved” in prayer. (P’s Counter 56.1
¶ 66.) Every morning, an eighth grader would meet with Plaintiff, after which Plaintiff would
introduce him or her over the loud speaker, and the student would then recite a prayer. (Id. ¶ 67.)
Plaintiff would then respond to the prayer by stating, “Praise to you Lord Jesus Christ.” (Id.;
Weber Decl. ¶ 8.)6 The student would then read another prayer over the loud speaker, following
which Plaintiff would recite the “Our Father” prayer. (P’s Counter 56.1 ¶ 67.) In the afternoon,
“Cassel Decl.” refers to the Declaration of Cathleen Cassel, (Doc. 93).
“Weber Decl.” refers to the Declaration of AnnMarie Weber, (Doc. 95).
Plaintiff often recited over the loud speaker a “reflection” containing a spiritual message. (Id.
Plaintiff’s religious involvement with the student body varied depending on the time of
year and corresponding holidays7 and religious feasts. In general, Plaintiff would often attend
regular mass with the students or special services to celebrate holy days or religious sacraments.
(Id. ¶¶ 85-89.) On Fridays in October, Plaintiff would honor of the Feast of Our Lady of the
Rosary by reciting over the loud speaker a “Decade of the Rosary,” which consists of the “Our
Father” prayer, ten “Hail Mary” prayers, and one “Glory Be” prayer. (Id. ¶ 69.) Throughout
October and May, Plaintiff would recite the “Prayer of the Rosary” over the loud speaker and, at
the beginning of her tenure, advised the faculty at a meeting that she would provide rosary beads
to any student or faculty member for the purpose of facilitating prayer. (Id. ¶¶ 70-71.) In honor
of the Feast of St. Anthony, which is held in June, Plaintiff would plan a special ceremony at the
School and would attend a Sunday mass attended by students and their parents. (Id. ¶ 114.)
Thereafter, she would meet with students, their families and faculty, bringing with her a statue of
St. Anthony which was prominently placed. (Id.) On or around September 11 each year,
Plaintiff hosted a September 11 memorial prayer at the school, where she would recite prayers
and Bible verses in front of a gathering of faculty and students. (Id. ¶ 115.)
Plaintiff also regularly supervised teachers and their curricula. Teachers were required to
submit to Plaintiff each week a copy of their lesson plan books. (Id. ¶ 91.) She mandated that
teachers’ lesson plan books identify the objective of each lesson, the method by which it would
be taught, and the “Value” and “Saint” associated with the lesson. (Id. ¶ 93.) The Value and
Saint were to be based on a chart of Catholic saints and corresponding Catholic values that
The parties disagree as to Plaintiff’s regular involvement in various Christmas and Advent school activities. (P’s
Counter 56.1 ¶¶ 72-81.)
Plaintiff handed out to teachers at the beginning of each school year. (Id.) Plaintiff generally
expected teachers to relate Christian and Roman Catholic doctrine and teachings to students. (Id.
¶ 94.) She would also observe teachers and “sought to ensure that Catholic values were found
within the classroom.” (Id. ¶ 97.)
In addition to reviewing teachers’ curricula, Plaintiff would lead monthly faculty
meetings at the School to discuss upcoming events. (Id. ¶ 102.) Each meeting began with a
prayer led by Plaintiff. (Id. ¶ 103.) She also required that teachers attend a “Standards and
Goals” meeting at the beginning of each school year, which she similarly led and began with a
prayer. (Id. ¶ 104.)
Another of Plaintiff’s responsibilities was overseeing the drafting and dissemination of
the St. Anthony’s Monthly Newsletter. (Id. ¶ 118.) These newsletters often thanked families for
joining her at a school-related mass or invited them to do so. (Id. ¶ 121.) The newsletters also
often communicated to parents Plaintiff’s joy and enthusiasm in joining with the students in their
“spiritual” journey in finding Christ and thanked the parents for their help in facilitating the
students’ journey. (Id. ¶ 122.) Plaintiff used the monthly newsletter as a vehicle to, among other
things, encourage the religious and spiritual learning and growth of the students outside of school
and to remind parents of upcoming events of religious significance. (Id. ¶ 123.)
At the end of each school year, Plaintiff would deliver religious messages to the
graduating class. At the graduation ceremony for the eighth-grade students, Plaintiff would
present a speech. (Id. ¶¶ 83, 124.) These speeches often included religious language and prayer.
For example, the speech to her final graduating class closed with the following:
Let us pray for the class of 2011.
Bless these graduates as they go into the world to make it a better place. While
they pursue their dreams, gently guide them, lead them, show them your way to
success and happiness through service to others as they maximize their own
potential. Fill them with joy as they reach their goals. Strengthen them as they
deal with life’s obstacles and show them that every challenge is a path to
character development. Give them the intelligence to make their plans for their
futures. Give them the patience and persistence to pursue their ambitions. Most
of all, give them caring hearts to look for ways to help people on their life’s
journey. Encourage them and lift them up now. In Christ’s name, we pray. In
the name of the Father, the Son, and the Holy Spirit. God bless you.
(Weber Decl. ¶ 12; id. Ex. B.) Plaintiff would also include a religious message for the
graduating class in the School yearbook. Her words of advice to the Class of 2011 included the
I was very confident that your spiritual, educational, and intellectual growth
would have been achieved and you have proven that following Jesus’s teaching
along with the love and guidance from your parents, teachers and the community
members that it was possible.
As you leave our school family, may the God of peace protect you, equip you, and
work with you, through Jesus Christ, to whom be glory forever and ever. Amen.
God Bless you always,
(Novikoff Decl. Ex. Q.)
Plaintiff was evaluated by the teachers at the School and by regional administrators. In
March 2008, Monsignor Reynolds, the pastor at St. Anthony’s, rated Plaintiff as “Excellent”
with regard to many criteria used to evaluate her abilities as a “religious leader” – for example,
“fosters a Christian atmosphere which enables staff and students to achieve their potential,”
“gives priority to a comprehensive religious education program,” and “encourage[es] communal
worship.” (Novikoff Decl. Ex. J.) Similarly, Sister Helen Doychek, then the District
Superintendent of Rockland County, also rated Plaintiff as an excellent religious leader of the
school. (Id. Ex. K.) She commended Plaintiff for “renewing the Catholic Identity of [the
School,]” “setting a good example as a religious leader,” “bringing a renewed sense of Christian
spirituality,” “creating an atmosphere rich with a sense of Catholic Community,” and “making
religious values, attitudes and behavior the focus of life at the School.” (Id.) Many teachers at
the School used similar descriptions in evaluating Plaintiff’s abilities as a religious leader. (See
id. Exs. L-M; Ladolcetta Decl. ¶ 26; McGuirk Decl. ¶ 11; Driscoll Decl. ¶ 24.)8
B. Procedural History
Plaintiff alleges that she first complained about the alleged discriminatory conduct to
others in the Archdiocese. (AC ¶ 163.) On October 12, 2011, Plaintiff filed a charge of
discrimination with the Equal Employment Opportunity Commission, (see Doc. 15 Ex. B),
which sent Plaintiff a notice of right to sue dated July 5, 2012, (AC Ex. 1). Plaintiff commenced
this action within 90 days of the notice.
On March 5, 2013, Plaintiff filed her Amended Complaint, alleging that Defendants
engaged in gender discrimination and retaliation in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq., and section 296 et seq. of the New York State Executive
Law. Plaintiff also asserted state-law claims for breach of contract and promissory estoppel, and
sought a declaratory judgment protecting her free exercise of religion.
On April 26, 2013, Defendants filed a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6). (Doc. 12.) In a bench ruling, I found that I could not determine whether the
ministerial exception applied at the motion to dismiss stage because of the necessarily factintensive inquiry that exception necessitates, and because Plaintiff had plausibly alleged that she
was not a minister, and had no religious training, duties or functions; that others handled all
“Ladolcetta Decl.” refers to the Declaration of Karen Ladolcetta, (Doc. 100). “McGuirk Decl.” refers to the
Declaration of Carol McGuirk, (Doc. 99). “Driscoll Decl.” refers to the Declaration of Mary Ann Driscoll, (Doc.
religiously related activities; and that she was simply a secular administrator doing what a
public-school principal would do. (See Doc. 54 Ex. A, at 10.) I therefore directed the parties to
engage in limited discovery on the issue. (Id. at 10-11.)9
On July 16, 2015, the parties filed the Motions now before me, (Docs. 90, 103).
Defendants seek summary judgment on all of Plaintiff’s claims based on the ministerial
exception derived from the First Amendment, (see Ds’ Mem. 1),10 while Plaintiff seeks
“summary judgment striking Defendants’ ministerial immunity defense” on the theory that she
was simply a “lay principal” with secular, administrative responsibilities, (see P’s Opp. 1-2).11
II. LEGAL STANDARD
Summary judgment is appropriate when “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). “[T]he dispute about a material fact is ‘genuine’ . . . if the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A fact is “material” if it “might affect the outcome of the suit
under the governing law . . . . Factual disputes that are irrelevant or unnecessary will not be
counted.” Id. 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 his favor.” Id. at 255. The movant
bears the initial burden of demonstrating “the absence of a genuine issue of material fact,” and, if
satisfied, the burden then shifts to the non-movant to present “evidence sufficient to satisfy every
element of the claim.” Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008) (citing Celotex
I also dismissed Plaintiff’s promissory estoppel claim in that ruling. (Id. at 17.)
“Ds’ Mem.” refers to Defendants’ Memorandum of Law in Support of Defendants’ Motion for Summary
Judgment Dismissing Plaintiff’s Claims on the Grounds that They Are Barred by the “Ministerial Exception,” (Doc.
“P’s Opp.” refers to Plaintiff’s Opposition to Motion for Summary Judgment, and Support of Cross-Motion to
Strike Defendants’ Ministerial Immunity Defense, (Doc. 107).
Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)). “The mere existence of a scintilla of evidence in
support of the [non-movant’s] position will be insufficient; there must be evidence on which the
jury could reasonably find for the [non-movant].” Anderson, 477 U.S. at 252. Moreover, the
non-movant “must do more than simply show that there is some metaphysical doubt as to the
material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986),
and he “may not rely on conclusory allegations or unsubstantiated speculation,” Fujitsu Ltd. v.
Fed. Express Corp., 247 F.3d 423, 428 (2d Cir. 2001) (internal quotation marks omitted).
“A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by . . . citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations (including
those made for purposes of the motion only), admissions, interrogatory answers, or other
materials . . . .” Fed. R. Civ. P. 56(c)(1). Where an affidavit is used to support or oppose the
motion, it “must be made on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant . . . is competent to testify on the matters stated.” Fed. R.
Civ. P. 56(c)(4); see Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d
Cir. 2008). In the event that “a party fails . . . to properly address another party’s assertion of
fact as required by Rule 56(c), the court may,” among other things, “consider the fact undisputed
for purposes of the motion” or “grant summary judgment if the motion and supporting materials
– including the facts considered undisputed – show that the movant is entitled to it.” Fed. R. Civ.
P. 56(e)(2), (3).
The narrow question presented by the parties’ Motions is whether Plaintiff’s
circumstances of employment cause her claims to fall within the ministerial exception, which
would preclude her from bringing discrimination and retaliation claims against Defendants. The
exception is an affirmative defense, Hosanna-Tabor Evangelical Lutheran Church & Sch. v.
EEOC, 132 S. Ct. 694, 709 n.4 (2012), and accordingly Defendants bear the burden of
establishing it. “[W]hether the exception attaches . . . is a pure question of law which this [C]ourt
must determine for itself.” Conlon v. InterVarsity Christian Fellowship, 777 F.3d 829, 833 (6th
Cir. 2015); see Preece v. Covenant Presbyterian Church, No. 13-CV-188, 2015 WL 1826231, at
*3 (D. Neb. Apr. 22, 2015).
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and other
employment discrimination laws ordinarily prohibit employers from discriminating against
employees and from retaliating against those employees for lodging a complaint based on such
discrimination. But First Amendment questions arise about the application of these
antidiscrimination laws where the employer is a religious institution. See generally HosannaTabor, 132 S. Ct. 694; Rweyemamu v. Cote, 520 F.3d 198 (2d Cir. 2008). The U.S. Supreme
Court considered the intersection of Title VII and the First Amendment in Hosanna-Tabor
Evangelical Lutheran Church & School v. EEOC. That decision and the line of cases that
followed govern the instant inquiry, and I examine them below before turning to the facts
A. Hosanna-Tabor and Subsequent Case Law
In Hosanna-Tabor, the U.S. Supreme Court held that “a ‘ministerial exception,’
grounded in the First Amendment, . . . precludes application of [antidiscrimination] legislation to
claims concerning the employment relationship between a religious institution and its ministers.”
132 S. Ct. at 705. The Court reasoned:
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
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 706; see also Cote, 520 F.3d at 204-05 (discussing several rationales for why, “[s]ince at
least the turn of the century, courts have declined to interfere [ ] with ecclesiastical hierarchies,
church administration, and appointment of clergy”) (second alteration in original) (internal
quotation marks omitted).
The Supreme Court further confirmed, as the Second Circuit and “[e]very Court of
Appeals to have considered the question” had previously held, that the ministerial exception does
not apply only to “the head of a religious congregation.” Hosanna-Tabor, 132 S. Ct. at 707; see
also Cote, 520 F.3d at 206-07 (collecting pre-Hosanna-Tabor cases applying exception to
organist, music directors, press secretary and staff of Jewish nursing home). The Supreme Court
was “reluctant, however, to adopt a rigid formula for deciding when an employee qualifies as a
minister.” Hosanna-Tabor, 132 S. Ct. at 707. The Court instead thoroughly examined the
“circumstances of [the plaintiff’s] employment” and delineated a number of factors on which it
relied in concluding that the ministerial exception applied in her case. Id. at 707-10.
The Court first examined whether the employee, Cheryl Perich, was “held out” by her
employer, a parochial school, as a minister, “with a role distinct from that of most of its
members.” Id. at 707. Perich was a “called” teacher, meaning she received a “diploma of
vocation” that granted her the title “Minister of Religion, Commissioned.” Id. She was tasked
with performing that office “according to the Word of God and the confessional standards of the
Evangelical Lutheran Church as drawn from the Sacred Scriptures.” Id. Her “skills of ministry”
and “ministerial responsibilities” were periodically reviewed by the congregation. Id. The Court
found that for these reasons, the church and school “held out” Perich as a minister. Id.
The Court next looked to Perich’s title – that of “Minister of Religion, Commissioned.”
Aside from the obvious fact that her title included the word “minister,” this title reflected a
significant amount of religious training and formal process. She had to complete “eight collegelevel courses in subjects including biblical interpretation, church doctrine, and the ministry of the
Lutheran teacher.” Id. Additionally, Perich had to obtain the endorsement of her local church
council “by submitting a petition that contained her academic transcripts, letters of
recommendation, personal statement, and written answers to various ministry-related questions.”
Id. Finally, Perich “had to pass an oral examination by a faculty committee at a Lutheran
college.” Id. All in all, it took Perich six years to fulfill these requirements. “And when she
eventually did, she was commissioned as a minister only upon election by the congregation,
which recognized God’s call to her to teach.” Id. Perich’s title and the extensive formal training
behind it weighed in favor of applying the ministerial exception.
Third, the Court considered whether Perich “held herself out as a minister of the Church
by accepting the formal call to religious service” or “in other ways.” Id. at 707-08. It found that
she had. Indicia of this included that Perich took a special housing allowance on her taxes for
those working “in the exercise of the ministry,” and that she filled out a post-employment form
describing herself as serving “in the teaching ministry.” Id. at 708.
Finally, the Court examined Perich’s job responsibilities. These responsibilities, it found,
reflected a role in conveying the Church’s message and carrying out its mission.
Hosanna-Tabor expressly charged her with “lead[ing] others toward Christian
maturity” and “teach[ing] faithfully the Word of God, the Sacred Scriptures, in its
truth and purity and as set forth in all the symbolical books of the Evangelical
Lutheran Church.” In fulfilling these responsibilities, Perich taught her students
religion four days a week, and led them in prayer three times a day. Once a week,
she took her students to a school-wide chapel service, and – about twice a year –
she took her turn leading it, choosing the liturgy, selecting the hymns, and
delivering a short message based on verses from the Bible. During her last year
of teaching, Perich also led her fourth graders in a brief devotional exercise each
Id. (alterations in original) (citation omitted). Thus, because Perich was “a source of religious
instruction” and “performed an important role in transmitting the Lutheran faith to the next
generation,” her job responsibilities weighed in favor of applying the ministerial exception. Id.
In reversing the Sixth Circuit’s decision, the Supreme Court also provided guidance as to
where the court below had erred. It explained that the Sixth Circuit did not give enough weight
to Perich’s title (including its attendant training and education); “gave too much weight to the
fact that lay teachers at the school performed the same religious duties” as Perich; and “placed
too much emphasis on Perich’s performance of secular duties.” Id.
Since Hosanna-Tabor was decided in 2012, the Fifth and Sixth Circuits and a handful of
district courts have considered the application of the ministerial exception in a diverse range of
employment discrimination cases. See, e.g., Conlon, 777 F.3d at 833-35 (holding that exception
applied to “spiritual director”); Cannata v. Catholic Diocese of Austin, 700 F.3d 169, 176-79 (5th
Cir. 2012) (applying exception to parish’s music director); Rogers v. Salvation Army, No. 14CV-12656, 2015 WL 2186007, at *6-7 (E.D. Mich. May 11, 2015) (ministerial exception applied
to “spiritual counselor”); Herx v. Diocese of Fort Wayne-S. Bend Inc., 48 F. Supp. 3d 1168, 1177
(N.D. Ind. 2014) (finding “lay teacher” to be outside of ministerial exception); Davis v.
Baltimore Hebrew Congregation, 985 F. Supp. 2d 701, 711 (D. Md. 2013) (member of janitorial
staff of religious institution was not “minister” under exception). Notably, none of these courts
have considered whether a parochial-school principal is a “minister” under the exception,
although cases decided prior to Hosanna-Tabor found that they were. Braun v. St. Pius X
Parish, 827 F. Supp. 2d 1312, 1318 (N.D. Okla. 2011) (citing Sabatino v. St. Aloysius Parish,
672 A.2d 217 (N.J. Super. Ct. App. Div. 1996)).
In any event, in light of the Supreme Court’s explicit rejection of “a rigid formula for
deciding when an employee qualifies as a minister,” Hosanna-Tabor, 132 S. Ct. at 707, I must
consider the specific circumstances of Plaintiff’s employment in concert with the case law
discussed above to make this determination.
B. The Hosanna-Tabor Considerations As Applied to Plaintiff
As a preliminary matter, parochial schools are considered “religious organizations” for
purposes of the ministerial exception. See, e.g., Herx, 48 F. Supp. 3d at 1177 (examining
application of ministerial exception to parochial school teacher); Dias v. Archdiocese of
Cincinnati, No. 11-CV-251, 2013 WL 360355, at *4 (S.D. Ohio Jan. 30, 2013) (same); cf.
Conlon, 777 F.3d at 833-34 (“It is undisputed that InterVarsity Christian Fellowship is a
Christian organization, whose purpose is to advance the understanding and practice of
Christianity in colleges and universities. It is therefore a ‘religious group’ under HosannaTabor.”) (emphasis in original); Penn v. N.Y. Methodist Hosp., No. 11-CV-9137, 2016 WL
270456, at *3, 5 (S.D.N.Y. Jan. 20, 2016) (viewing ministerial exception on a “sliding scale,”
where the more religious the employer institution is, the less religious the employee’s functions
must be to qualify, and finding that hospital is institution to which exception applies). Because
the School is a parochial school, one purpose of which is clearly to advance the understanding
and practice of Catholicism, it is a “religious organization” for purposes of the ministerial
exception. The sole remaining question is thus whether Plaintiff is a “minister” under the
I first examine whether Plaintiff was “held out” by the Archdiocese and the School as a
minister, “with a role distinct from that of most of its members.” Hosanna-Tabor, 132 S. Ct. at
707. It is clear from the Archdiocese’s description of a principal’s position that it does hold
principals out as ministers. Unlike other school staff, the principal is required to be a practicing
Catholic. (P’s Counter 56.1 ¶ 21.) As principal, Plaintiff was tasked with “achieving the
Catholic mission and purpose of the school” and being the “animator of the community of faith
within the school.” (Admin. Manual at 023924.) Further, the principal is described as a
religious liaison between the Archdiocese, the parish, the congregation, the students, and the
parents, interacting with all entities and fostering a religious community. (Id. at 023803.) And,
as in Hosanna-Tabor, the record indicates that Plaintiff was evaluated by superiors in the
Archdiocese, the Monsignor, and her faculty based on, among other things, her effectiveness as a
religious leader. (See Novikoff Decl. Exs. J-M; Ladolcetta Decl. ¶ 26; McGuirk Decl. ¶ 11;
Driscoll Decl. ¶ 24.) These factors demonstrate that the Archdiocese and the school held
Plaintiff out as a minister, weighing in favor of application of the ministerial exception.
I next look to Plaintiff’s title and the requisite education and training associated with that
title. The contract that Plaintiff signed in 2007 was for the position of “Lay Principal.” (Ds’
Counter 56.1 ¶ 12.) As noted, in order to attain this position, Plaintiff was required to submit a
letter confirming that she was a practicing Catholic. (P’s Counter 56.1 ¶ 21.) Principals are also,
at least in theory, required to complete a Level 1 and Level 2 Catechist Certification Program
within three years of attaining that position, (Admin. Manual at 023808), although Plaintiff
maintains (and I assume for purposes of these Motions) that this certification requirement was
not strictly enforced. (P’s Counter 56.1 ¶ 18.) Plaintiff’s academic credentials are in education,
and she does not have formal training in religion or theology. (See Ds’ Counter 56.1 ¶ 4.)
Plaintiff’s title and training are thus different from some other employees who fell within the
ministerial exception. Unlike those cases that involved “called teachers,” a “spiritual director,”
or a “spiritual counselor,” for instance, there is nothing inherently religious about the title “Lay
Principal.” Compare, e.g., Hosanna-Tabor, 132 S. Ct. at 707 (“called teacher”), Conlon, 777
F.3d at 834 (“spiritual director”), and Rogers, 2015 WL 2186007, at *6 (“spiritual counselor”),
with Herx, 48 F. Supp. 3d at 1177 (“lay teacher”). And while principals must attest to their
Catholic faith and it is at least suggested that they complete Catechist certification, nothing in the
record suggests the rigorous level of education, training, and certification attained by plaintiffs
such as Perich or other “called” teachers. See Conlon, 777 F.3d at 835. This factor in the
inquiry therefore weighs against application of the ministerial exception. See id.
I next turn to whether Plaintiff “held herself out as a minister of the Church by accepting
the formal call to religious service,” Hosanna-Tabor, 132 S. Ct. at 707, or “in other ways,” id. at
708. The Supreme Court in Hosanna-Tabor and the Northern District of Illinois in Herzog v. St.
Peter Lutheran Church both found that “called teachers” had accepted a formal call to religious
service by virtue of their positions and held themselves out as ministers as evidenced by, for
example, taking special housing allowances on taxes for those working “in the exercise of the
ministry.” Hosanna-Tabor, 132 S. Ct. at 708 (internal quotation marks omitted); see Herzog v.
St. Peter Lutheran Church, 884 F. Supp. 2d 668, 673 (N.D. Ill. 2012). Plaintiff did not accept
any such formal call, nor did she claim ministerial status for tax or other formal purposes, so this
factor weighs against the exception. But it does not weigh strongly because Plaintiff
undoubtedly knew she would be perceived as a religious leader. The Archdiocese describes
acceptance of the principal position as “accept[ing] the vocation and challenge of leadership in
Catholic education.” (Admin. Manual at 023753.) Whether Plaintiff ever saw this description of
the position or not, she had to verify her Catholic practice and answer questions about her
Catholic leadership and vision when applying for the position. (Cassel Decl. ¶ 11.) In accepting
this “vocation,” Plaintiff became the head of an undeniably Catholic institution. And the record
demonstrates that Plaintiff held herself out to the school community as a religious authority in
many ways – for example, by leading prayers for the student body and teachers, conveying
religious messages in speeches and writings, and expressing the importance of Catholic prayer
and spirituality in newsletters to parents. So while Plaintiff did not claim the formal trappings of
a ministerial position, and while she had many secular responsibilities, she knew that in some of
her public functions she would be part of “the critical process of communicating the faith,”
Hosanna-Tabor, 132 S. Ct. at 712 (Alito, J., concurring), and would “personify [the Church’s]
beliefs,” id. at 706 (majority opinion); see id. at 711 (“[I]t would be a mistake if the term
‘minister’ or the concept of ordination were viewed as central . . . . Instead, courts should focus
on the function performed by persons who work for religious bodies.”) (Alito, J., concurring).
Fourth, I must examine whether Plaintiff’s job responsibilities “reflected a role in
conveying the Church’s message and carrying out its mission.” Id. at 708 (majority opinion).12
The record clearly indicates that Plaintiff filled such a role from the beginning of her tenure as
principal at the School. Early on, Plaintiff instituted a new system of daily prayer in the morning
to get students more involved. (P’s Counter 56.1 ¶ 66.) Plaintiff would lead prayers with the
As discussed, this does not require that an employee stand in front of a congregation and lead mass. See, e.g.,
Conlon, 777 F.3d at 835; Cannata, 700 F.3d at 178-79.
school body over the loud speaker. (Id. ¶¶ 69-71, 85-89.) She was at the front and center of
planning and facilitating special services for the Feast of St. Anthony and the September 11
memorial. (Id. ¶¶ 114-15.) Additionally, Plaintiff encouraged and supervised teachers’
integration of Catholic saints and religious values in their lessons and classrooms. (Id. ¶¶ 91, 9394, 97.) Even outside the walls of the School, Plaintiff kept families connected to their students’
religious and spiritual development through the school newsletter. (Id. ¶¶ 118-23.) And at the
end of each school year, Plaintiff sent eighth-grade students forth with a religion-infused
commencement speech and yearbook message. (Id. ¶¶ 83, 124; see Novikoff Decl. Ex. Q; see
also Weber Decl. ¶ 12; id. Ex. B.) Not only did Plaintiff do all of these things, but she was
evaluated on how well she did them. (See Novikoff Decl. Exs. J-M; Ladolcetta Decl. ¶ 26;
McGuirk Decl. ¶ 11; Driscoll Decl. ¶ 24.) There can be no doubt that Plaintiff’s job
responsibilities included “conveying the Church’s message and carrying out its mission.”
Hosanna-Tabor, 132 S. Ct. at 708. Through her efforts in “fostering a Christian atmosphere” in
the School, (Novikoff Decl. Ex. J), “renewing [its] Catholic identity,” (id. Ex. K), leading
prayers and sharing Catholic values, Plaintiff “serve[d] as a messenger or teacher of [the
Church’s] faith.” Hosanna-Tabor, 132 S. Ct. at 712 (Alito, J., concurring). Accordingly, this
factor weighs strongly in favor of application of the ministerial exception.
Plaintiff’s arguments against applying the ministerial exception are unpersuasive. As
Hosanna-Tabor and other case law instructs, it does not matter what percentage of time Plaintiff
spent on secular or administrative matters as compared to leading prayer or otherwise conveying
the message of the Archdiocese and Catholic church, nor does it matter that other “lay” teachers
engaged in similar religious activities as Plaintiff. See id. at 708-09 (majority opinion); Preece,
2015 WL 1826231, at *5; Herzog, 884 F. Supp. 2d at 674. The argument that Plaintiff was
acting at the direction of the Archdiocese and the Monsignor is similarly unpersuasive. Were
this determinative, none of the plaintiffs in the cases discussed above would fall under the
ministerial exception. See Hosanna-Tabor, 132 S. Ct. at 708; Conlon, 777 F.3d at 835; Cannata,
700 F.3d at 178-79; Rogers, 2015 WL 2186007, at *6-7; Preece, 2015 WL 1826231, at *5;
Herzog, 884 F. Supp. 2d at 674. And Plaintiff’s continued attempt to rely on canon law, (see P’s
Mem. 9-12), is misplaced, as I have previously held. There is no dispute that Plaintiff is not a
member of the clergy and that she would not be considered a minister for purposes of Church
governance. But the issue here is one of U.S., not canon, law, and “minister” for purposes of the
ministerial exception has a far broader meaning than it does for internal Church purposes.
Finally, Plaintiff’s suggestion that application of the ministerial exception in a case such as this
would open the door to a “parade of horribles” has been rejected by the Supreme Court. See
Hosanna-Tabor, 132 S. Ct. at 710.
Considering the factors discussed in Hosanna-Tabor and the totality of Plaintiff’s
circumstances of employment, I find on balance that the ministerial exception applies. While
Plaintiff’s title and attendant training and education weigh against application of the exception,
and while Plaintiff’s not claiming to be a minister weighs slightly against it as well, the other
factors discussed above – the distinct ministerial role the Church assigns her and, most
significantly, Plaintiff’s job responsibilities – carry far more weight. And as the Supreme Court
has cautioned, the inquiry is not intended to consist of a “rigid” checklist but is instead a holistic
examination of an employee’s circumstances. Id. at 707-08; see Cannata, 700 F.3d at 176 (“Any
attempt to calcify the particular considerations that motivated the Court in Hosanna-Tabor into a
‘rigid formula’ would not be appropriate.”); id. at 177 (application of exception does not depend
on finding that Plaintiff satisfies same considerations that motivated finding in Hosanna-Tabor);
see also Conlon, 777 F.3d at 835 (applying the ministerial exception even though not all
Hosanna-Tabor factors were satisfied). While Plaintiff may not regard the religious aspect of
her job as nearly as significant as the secular aspects, there can be no real doubt that Plaintiff
“furthered the mission of the church and helped convey its message.” Cannata, 700 F.3d at 177.
Accordingly, Defendants have carried their burden of establishing on the undisputed facts
that Plaintiff falls within the ministerial exception to Title VII, and summary judgment in favor
of Defendants is appropriate.
C. Plaintiff’s State-Law Claims
In addition to her federal antidiscrimination and retaliation claims, Plaintiff further
alleges violations of New York State Executive Law section 296 et seq. and breach of contract.
(AC ¶¶ 206-29.) The “traditional ‘values of judicial economy, convenience, fairness, and
comity’” weigh in favor of declining to exercise supplemental jurisdiction where all federal-law
claims are eliminated before trial. Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir.
2006) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)). Having determined
that all of the claims over which this Court has original jurisdiction should be dismissed, and
having considered the factors set forth in Cohill, I decline to exercise supplemental jurisdiction
over Plaintiff’s remaining state-law causes of action. See id. (citing 28 U.S.C. § 1367(c)(3)).
For the reasons stated above, Defendants’ Motion for summary judgment is GRANTED
and Plaintiff’s Cross-Motion to strike Defendants’ ministerial-immunity defense is DENIED.
The federal claims are dismissed with prejudice and the state claims are dismissed without
prejudice. The Clerk of Court is respectfully directed to terminate the pending Motions, (Docs.
90, 103), enter judgment for Defendants, and close the case.
Dated: March 29, 2016
White Plains, New York
CATHY SEIBEL, U.S.D.J.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?