CLEMENT v. THE ROMAN CATHOLIC DIOCESE OF ERIE et al
MEMORANDUM OPINION re 22 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by THE ROMAN CATHOLIC DIOCESE OF ERIE, 21 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Filed by Defendant St. Michael the Archangel Parish and filed by ST. JOSEPH PARISH. Order to follow. Signed by Magistrate Judge Susan Paradise Baxter on 6/16/17. (lrw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KATHLEEN A. CLEMENT,
THE ROMAN CATHOLIC DIOCESE
OF ERIE, et al,
C.A. 16-117 Erie
Magistrate Judge Baxter
SUSAN PARADISE BAXTER, United States Magistrate Judge
Plaintiff Kathleen A. Clement (“Plaintiff”) filed this civil action pursuant to Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e (“Title VII”) and the Pennsylvania Human
Relations Act, 43 Pa. Cons. Stat. Ann. § 951 et seq. Plaintiff alleges that she was subject to an
“offensively sexual hostile work environment” and constructively discharged from her position
as a Facilitator of Religious Education Programs at three parishes in the Roman Catholic Diocese
of Erie. ECF No. 11. Plaintiff names as defendants to this action St. Joseph and St. Michael the
Archangel Parishes (the “Parish Defendants”), and the Diocese of Erie (the “Diocese”); and
claims that each failed to address ongoing inappropriate sexual conduct directed at her by parish
priest Fr. Daniel Kresinski.
The Diocese and Parish Defendants have filed motions to dismiss Plaintiff’s complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief
can be granted. ECF No. 21; ECF No. 22. The Diocese contends that Plaintiff has failed to state
a claim against it because she has not alleged facts establishing that the Diocese was her
All parties have consented to having a United States Magistrate Judge exercise jurisdiction over this matter. See 28
U.S.C. § 636 et seq. (ECF Nos. 24, 25 and 26).
employer or that it employed Fr. Kresinski. The Parish Defendants contend that because
Plaintiff filed a charge with the United States Equal Employment Opportunity Commission
(“EEOC”) identifying only the Diocese as her employer, Plaintiff has failed to exhaust
administrative remedies against St. Joseph or St. Michael. The motions have been fully briefed
by the parties, and are ripe for disposition. See ECF Nos. 32, 33, 47, 48. For the following
reasons, the motions are denied.
Background and Relevant Procedural History
Plaintiff’s Complaint alleges that after experiencing sexual harassment and retaliation in
the course of her employment, she filed a timely charge with the EEOC and the Pennsylvania
Human Relations Commission (“PHRC”). The Diocese has submitted a copy of the EEOC
charge to the Court as an exhibit to the motion to dismiss, and it has been reviewed by the Court
as a document forming an integral part of Plaintiff’s claim.2 ECF No. 21-1. Plaintiff’s charge
identifies the Diocese as her Employer/Respondent, references the Parish Defendants, and states
During my employment with Respondent, I was subjected to a sexually hostile
work environment based on my gender. In March 2013, Fr. Daniel Kresinski
became the parish priest at St. Joseph Parish and St. Michael the Archangel
Parish. When I would meet with Fr. Kresinski in his office alone, he would cup
his hand under his scrotum and pull his scrotum up toward his waist. He did this
every time I had to meet with him alone and would do it 6 or more times during
each meeting. In or about August 2013, I reported the sexual harassment to
Joseph Street, Respondent’s Director of Religious Education. Mr. Street did
In reviewing a Rule 12(b)(6) motion, a district court generally may not consider matters outside
of the complaint. Fed. R. Civ. P. 12(d). An exception exists with respect to: (i) exhibits that are
attached to the complaint; (ii) matters of public record; and, (iii) any undisputedly authentic
document that a defendant attaches as an exhibit to a motion to dismiss if the document is
integral to or explicitly relied upon in the complaint. See In re Burlington Coat Factory Sec.
Litig., 114 F.3d 1410, 1426 (3d Cir. 1997); Pension Benefit Guar. Corp. v. White Consol. Indus.,
Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
nothing to address my complaint and advised me to “politely resign.” I then
contacted Monsignor Smith, Director Priest Personnel, and met with him and
Monsignor Kaza of St. Tobias, on September 24, 2013. During that meeting, I
advised Monsignor Smith that I could not continue to work with Fr. Kresinski due
to sexual actions. At the meeting, Monsignor Smith told me I was creditable. On
October 1, 2013, Monsignor Smith met with Fr. Kresinski, who admitted to
touching himself in my presence. Respondent did nothing to address
Fr. Kresinski’s inappropriate sexual harassment and insisted that I continue to
work with him. I therefore was forced to tender my resignation on October 3,
After I resigned, I contacted and met with … [Most Reverend Lawrence T.]
Persico, [Bishop of the Roman Catholic Diocese of Erie]. Bishop Persico
indicated that he did not want me to go to the press with my complaint and asked
me to sign a non-disclosure statement.
Id. Plaintiff alleges that “the EEOC issued a Determination that there is reasonable cause to
believe that Defendants are an integrated enterprise/single employer and that Plaintiff was
sexually harassed and constructively discharged.” ECF No. 11, p.2. Plaintiff timely filed the
instant action after receipt of the agency Notification of Dismissal.
In support of her claims against the Diocese as her “employer,” Plaintiff’s Complaint
alleges facts indicating the supervisory involvement of Diocesan personnel investigating her
sexual harassment claims. Plaintiff further alleges facts suggesting the unified operation of the
Diocese and its parishes as a “single employer.” In particular, Plaintiff alleges:
Defendants have a high degree of operational entanglement between them.
Defendants have unity with respect to ownership, management and
business functions because, among other things:
a. Clement’s supervisory chain of command was split between Fr.
Daniel Kresinski (the parish priest at Defendant St. Michael and
Defendant St. Joseph) and Joseph Street (the Director of Religious
Education at Defendant Diocese);
b. Defendant Diocese indicated that it properly had control over both
Fr. Kresinski and the handling of Clement’s complaint of sexual
c. Defendant Diocese owns all of the physical property and buildings
of its parishes, including Defendant St. Joseph and Defendant St.
d. Defendant St. Joseph and Defendant St. Michael jointly
contributed funds to pay Clement her salary; and
e. Defendant Diocese handled Clement’s constructive discharge.
Defendants present themselves as a single company such that third parties
dealt with them as one unit in situations including but not limited to the
a. Defendants’ employee handbook is created, promulgated and
enforced by Defendant Diocese;
b. Defendant Diocese provided Clement a required “application for
driving privileges” in connection with the execution of her job
c. Defendant Diocese’s policies required Clement to attend a
workshop entitled, “For the Protection of Children” in connection
with the execution of her job duties; and
d. Defendant Diocese required Clement to complete its Application
for Volunteers with Children/Youth in connection with the
execution of her job duties.
Id. at pp. 3-4. In addition, Plaintiff points to Diocesan assessments of required parish financial
contributions and Diocesan fiscal oversight of its parishes as evidence of financial entanglement
adding to the inference that Defendants operate as a single company. Id.
Plaintiff contends that her factual allegations are sufficient to state a claim against the
Diocese and to conclude that notice to the Diocese identifying the involved parishes was
sufficient to exhaust all required administrative remedies as to each Parish.
Standard of Review
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be
viewed in the light most favorable to the plaintiff and all of the well-pleaded allegations of the
complaint must be accepted as true. Erickson v. Pardus, 551 U.S. 89, 93–94 (2007). A complaint
must be dismissed pursuant to Rule 12(b)(6) if it does not allege “enough facts to state a claim to
relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)
(rejecting the traditional 12(b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41 (1957)).
See also Ashcroft v. Iqbal, 556 U.S. 662 (2009) (specifically applying Twombly analysis beyond
the context of the Sherman Act).
A court need not accept inferences drawn by a plaintiff if they are unsupported by the
facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp.,
394 F.3d 126, 143 (3d Cir. 2004) citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906
(3d Cir. 1997). Nor must the Court accept legal conclusions set forth as factual allegations.
Twombly, 550 U.S. at 555, citing Papasan v. Allain, 478 U.S. 265, 286 (1986). A plaintiff's
factual allegations “must be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 556, citing 5C Wright & Miller, Federal Practice and Procedure § 1216,
pp. 235–236 (3d ed. 2004). Although the United States Supreme Court does “not require
heightened fact pleading of specifics, [the Court does require] enough facts to state a claim to
relief that is plausible on its face.” Id. at 570.
In other words, at the motion to dismiss stage, a plaintiff is “required to make a ‘showing’
rather than a blanket assertion of an entitlement to relief.” Phillips v. County of Allegheny, 515
F.3d 224, 231 (3d Cir. 2008). “This ‘does not impose a probability requirement at the pleading
stage,’ but instead ‘simply calls for enough facts to raise a reasonable expectation that discovery
will reveal evidence of the necessary element.’” Id. at 234, quoting Twombly, 550 U.S. at 556 n.
Single Employer Status
Title VII prohibits discrimination based on race, color, religion, sex, or national origin by
an “employer.” 42 U.S.C. § 2000e-2. An “employer” is defined as “a person engaged in an
industry affecting commerce who has fifteen or more employees for each weekly day in which of
twenty calendar weeks in the current or preceding calendar year….” 42 U.S.C. § 2000e(b).
The Diocese argues that it should be dismissed from this action because Plaintiff is
employed solely by the Defendant Parishes. The Parish Defendants argue that they are entitled to
dismissal because individually, they do not employ the required minimum fifteen individuals. All
parties agree that under certain circumstances, a court may combine nominally separate entities
as a single employer to meet the requirements of Title VII and that when consolidated, they share
all liabilities. See ECF No. 21, p. 11; ECF No. 22, p. 9; ECF No. 32, p. 3, citing Nesbit v. Gears
Unlimited, Inc., 347 F.3d 72, 84 (3d Cir. 2003).
The United States Court of Appeals for the Third Circuit has explained that a court
should consider two companies to be a “single employer” where, in relevant part, the “two ...
entities’ affairs are so interconnected that they collectively caused the alleged discriminatory
employment practice.” Id. at 85-86. A determination as to whether two entities are sufficiently
interconnected requires an “intentionally open-ended, equitable inquiry,” which focuses “on the
degree of operational entanglement—whether operations of the companies are so united that
nominal employees of one company are treated interchangeably with those of another.” Id. at 87
Relevant operational factors include (1) the degree of unity between the entities with
respect to ownership, management (both directors and officers), and business functions (e.g.,
hiring and personnel matters), (2) whether they present themselves as a single company such that
third parties dealt with them as one unit, (3) whether a parent company covers the salaries,
expenses, or losses of its subsidiary, and (4) whether one entity does business exclusively with
the other. Id.; see also Anderson v. Finley Catering Co., 218 F. Supp. 3d 417, 422 (E.D. Pa.
2016). No single factor is dispositive. Nesbit, 347 F.3d at 87.
The Diocese and Parish Defendants contend, albeit without the benefit of discovery, that
Plaintiff, “has failed to demonstrate and cannot [demonstrate] that there is a degree of unity
between the Erie Diocese and the Parishes with respect to ownership, management (both
directors and officers), and business functions (e.g., hiring and personnel matters)” such that
Defendants may be considered a single employer.3 ECF No. 22, p. 14. And see ECF No. 21, p.
The Court acknowledges the Diocese’s objection to the application of the single employer theory as a violation of
the First Amendment, which, it contends, protects “a religious institution’s right to decide matters of faith, doctrine
and church governance.” ECF No. 22, p. 8, n.1, citing Petruska v. Gannon University, 462 F.3d 294, 306 (3d Cir.
2006). In the context of Title VII, however, the United States Supreme Court has noted that the ministerial
exception, while broad, may not be implicated in employment claims unrelated to hiring and termination decisions.
The case before us is an employment discrimination suit brought on behalf of a minister,
challenging her church’s decision to fire her. Today we hold only that the ministerial exception
bars such a suit. We express no view on whether the exception bars other types of suits, including
actions by employees alleging breach of contract or tortious conduct by their religious employers.
There will be time enough to address the applicability of the exception to other circumstances if
and when they arise.
Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171, 196 (2012). Here, Plaintiff’s Title
VII claim is based upon alleged persistent and pervasive sexual harassment. The Court notes, without deciding the
issue at this early juncture, that actions predicated upon sexual misconduct have examined the interrelationship of
diocese and parish for purposes of the imposition of liability without violating First Amendment strictures, because
such conduct has been determined to be outside the realm of protected religious activity. See, e.g., Doe v.
Liberatore, 478 F. Supp. 2d 742, 772 (M.D. Pa. 2007)(Plaintiff’s breach of fiduciary duty claim against priest and
the Diocesan Defendants did not offend the First Amendment, even where claim required examination of the issues
of overmastering influence, and unfair advantage and whether the Diocesan Defendants failed to provide and
maintain a safe environment for Plaintiff to participate in church activities.); Elvig v. Calvin Presbyterian Church,
375 F.3d 951, 966 (9th Cir.2004) (holding the ministerial exception did not apply to sexual harassment or its
retaliation, but allowing damages only for emotional distress and reputational harm that are recoverable under Title
VII). Additionally, the Supreme Court’s decision in Hosanna-Tabor makes clear that the application of the
ministerial exception requires a factual inquiry to determine if the employee qualifies as a “minister.” Hosanna–
12. This fact-intensive inquiry is widely recognized as inappropriate at the motion to dismiss
stage, and indeed, may not be appropriate for summary judgment where discovery has not yet
occurred. See e.g., Hayes v. Waddell & Reed, Inc., 2013 WL 5434139, at *9 (W.D. Pa. Sept. 26,
2013), citing Graves v. Lowery, 117 F.3d 723, 729 (3d Cir. 1997); Thompson v. U.S. Airways,
Inc., 717 F. Supp.2d 468, 479 (E.D. Pa. 2010); Krasner v. Episcopal Diocese of Long Island, 431
F. Supp.2d 320, 325 (E.D.N.Y. 2006)(summary judgment motion denied where discovery not yet
conducted and Plaintiff stated she was directed to perform duties by the Diocese; that she
attended training offered by the Diocese; that she participated in the Diocese group plan health
insurance; and that the Diocese controlled aspects of her compensation, hours, and job duties);
DeLa Cruz v. Piccari Press, 521 F. Supp.2d 424, 430-431 (E.D. Pa. 2007); Valesky v. Aquinas
Acad., 2011 WL 4102584, at *10 (W.D. Pa. Sept. 14, 2011)(Diocese and Catholic high school
one entity for Title IX purposes regardless of separate operating trusts so as to ensure artificial
distinctions do not defeat statutory anti-discriminatory intent).
At this early stage of litigation, Plaintiff points to the dual chain of command over her
position, the requirement that she adhere to the Diocesan employee handbook, the Diocese’s
approval of her application for driving privileges in connection with the performance of her job,
and the intermingling of business and financial operations between the Diocese and its parishes.4
These allegations rise well beyond the level of “threadbare recitals of the elements of a cause of
action” that fail the Twombly/Iqbal test, and raise a reasonable expectation that discovery could
Tabor, 565 U.S. at 190-92; Hough v. Roman Catholic Diocese of Erie, 2014 WL 834473, at *5 (W.D. Pa. Mar. 4,
The Court also notes the Diocese’s position in Persico v. Sebelius, 919 F.Supp.2d 622, 628 (W.D. Pa. 2013),
wherein it described itself as consisting “of 177 parishes serving a thirteen-county region,” educating over 7,500
student through its numerous elementary, middle and secondary schools, and operating a self-insured health plan
providing health insurance coverage to approximately 803 employees, “including those employed directly by the
Diocese as well as those employed by the various parishes, schools and charitable agencies of the Diocese.” This
description appears to reflect their posture as a single entity. ECF No. 22, pp. 14-15.
reveal evidence of interconnection such that the single employer theory of Title VII liability is
appropriately imposed. Accordingly, the motion to dismiss filed on behalf of the Diocese is
denied. Further, the Parish Defendants’ motion to dismiss based upon Title VII’s employee
numerosity requirement is denied as this issue also relies upon a factual determination of the
propriety of pooling employees to support a Title VII claim.
Exhaustion of Administrative Remedies
The Parish Defendants alternatively contend that they are entitled to dismissal from this
action because Plaintiff failed to name either entity as an employer in her EEOC charge. Her
failure to do so, they argue, constitutes a failure to exhaust her available administrative remedies
against them and bars pursuit of this action against both parishes. ECF No. 21. Plaintiff responds
that the Parish Defendants had actual notice of the charge and there is sufficient commonality of
interest between the parishes and the Diocese so as to impute notice, such that she is not
precluded from maintaining her current action.
Generally, a Title VII action may only be brought against a party previously named in an
EEOC action. Schafer v. Bd. of Educ. of the Sch. Dist. of Pittsburgh, Pa., 903 F.2d 243, 251 (3d
Cir.1990). Administrative exhaustion is a jurisdictional prerequisite to suit, and parties must
exhaust all administrative remedies against the named parties before bringing suit. McLaughlin v.
Rose Tree Media Sch. Dist., 1 F.Supp.2d 476, 481 (E.D.Pa.1998). There is a recognized
exception to this exhaustion requirement when a party unnamed in the EEOC complaint
(1) received notice of the EEOC complaint, and (2) there is a shared commonality of interest
between the named and unnamed parties. Schafer, 903 F.2d at 252; Glus v. G.C. Murphy Co.,
629 F.2d 248, 251 (3d Cir. 1980). Because resolution of these issues will require development
and review of a factual record not properly before the Court at this preliminary stage, the Parish
Defendants’ motion to dismiss is denied. An appropriate Order follows.
/s/ Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States Magistrate Judge
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