This appeal requires us to consider the contours of the ministerial exception, under the first amendment to the United States constitution,
The record reveals the following facts, as set forth in the complaint, and procedural history. The plaintiff was employed by the archdiocese since 1975 as a teacher and Catholic school administrator; she served as principal of the school from 1988 until 2005. In the plaintiffs last comprehensive performance evaluation,
Thereafter, on August 22,2004, Bzdyra, accompanied by a deacon, met with the plaintiff after a Mass. Bzdyra then informed the plaintiff in writing of his concerns regarding her performance as principal, particularly in light of a report issued by the Commission on Independent Schools. The letter concluded that the school “faces many challenges in the coming school year and beyond. I want you to reflect about the steps you will take to improve in these areas. I want to sit down with you in the beginning of the school year so we may discuss the changes you will make and implement, and your plans for the school year.”
In September, 2004, the plaintiff and Bzdyra met in her office at the school to discuss her improvement plans. Bzdyra refused, however, to discuss the changes that the plaintiff already had implemented, or her future plans. Instead, he became abusive and ended the meeting after telling the plaintiff that she “ ‘wasn’t a leader,’ ” “ ‘could do nothing to improve,’ ” and “ ‘never should have been a principal.’ ”
Thereafter, on or about November 23, 2004, Bzdyra initiated a conversation with the plaintiff in the school cafeteria and asked her intentions for the following school year. The plaintiff was confused and stunned by the inquiry, but stated that she intended to remain as principal of the school. After again insulting the plaintiffs leadership abilities, Bzdyra then told her that if she did not leave, he would tell the school board that he would not renew her contract and would request her removal from the school. At the conclusion of their discussion that day, however, Bzdyra offered the plaintiff an alternate position for the following school year teaching third grade and told her to contact Mann if she was interested in that job. The following day, the
During that November 23, 2004 conversation, Bzdyra referred to the plaintiffs failure to “ ‘stick up for [him]’ ” in October, 2003, when an eighth grade student and her mother met with the plaintiff and complained that Bzdyra’s use of sexually explicit language while he taught his weekly religion course made the student and other girls uncomfortable. When the plaintiff subsequently spoke to Bzdyra about the student’s concerns,
In January, 2005, the plaintiff completed the form and advised the archdiocese of her intent to return as principal. Later that month, however, the plaintiff was surprised and upset to see a job opening for her position listed in a newsletter written by Dale Hoyt, the superintendent of the archdiocese’s schools, which was distributed to school faculty, staff and school boards throughout the archdiocese. Thereafter, on January 20, 2005, the plaintiff sent to Bzdyra and Hoyt a letter formally rescinding her earlier letter of resignation and stating that she did not understand Bzdyra’s reasons for not renewing her employment contract or why he did not give her the opportunity to address the performance concerns.
The plaintiff then brought this action for money damages
Subsequently, the defendants moved to dismiss the plaintiffs complaint, claiming that her action is barred under the “ ‘ministerial exception’ to judicial authority [that] precludes a court from adjudicating employment
I
We begin with the threshold issue of whether the trial court’s denial of the defendants’ motion to dismiss in this case is an appealable final judgment under General Statutes § 52-263.
“As a general rule, an interlocutory ruling may not be appealed pending the final disposition of a case. . . . We previously have determined [however] that certain interlocutory orders have the attributes of a final judgment and consequently are appealable under ... § 52-263. ... In State v. Curcio, [supra, 191 Conn. 31], we explicated two situations in which a party can appeal an otherwise interlocutory order: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them. . . .
By way of background, we note that the ministerial exception at issue in this case “is constitutionally required by various doctrinal underpinnings of the [f]irst [a]mendment.” (Internal quotation marks omitted.) Rweyemamu v. Cote, supra, 520 F.3d 207. When the ministerial exception applies, it provides the defendant with immunity from suit and deprives the court of subject matter jurisdiction. Rweyemamu v. Commission on Human Rights & Opportunities, supra, 98 Conn. App. 654-55; accord Equal Employment Opportunity Commission v. Hosanna-Tabor Evangelical Lutheran Church & School, 597 F.3d 769, 777 (6th Cir. 2010), cert. granted on other grounds, 563 U.S. 903, 131 S. Ct. 1783, 179 L. Ed. 2d 653 (2011);
We previously have determined that, under the second prong of State v. Curcio, supra, 191 Conn. 31, a colorable claim to a right to be free from an action is protected from the immediate and irrevocable loss that would be occasioned by having to defend an action through the availability of an immediate interlocutory appeal from the denial of a motion to. dismiss. See, e.g., Chadha v. Charlotte Hungerford Hospital, supra, 272 Conn. 787 (absolute immunity for statements made during judicial and quasi-judicial proceedings); Shay v. Rossi, 253 Conn. 134, 167, 749 A.2d 1147 (2000) (state sovereign immunity), overruled in part on other grounds by Miller v. Egan, 265 Conn. 301, 325, 828 A.2d 549 (2003). Thus, we find persuasive the District of Columbia Court of Appeals’ decision to permit interlocutory appellate review of a trial court’s denial of a motion to dismiss based on a church’s first amendment immunity from suit because that issue is “unreviewable on appeal from a final judgment if the case proceeds to trial because the essence of the protection of immunity from suit is an entitlement not to stand trial or face the other burdens of litigation.” (Internal quotation marks
II
On appeal, the defendants claim that the ministerial exception, which was first articulated in McClure v. Salvation Army, supra, 460 F.2d 553, as an evolution of the ecclesiastical abstention doctrine established by the United States Supreme Court in Watson v. Jones, 80 U.S. (13 Wall.) 679, 727, 20 L. Ed. 666 (1872), requires dismissal of this action. They argue that Connecticut’s variation of the ministerial exception, as articulated by the Appellate Court in Rweyemamu v. Commission on Human Rights & Opportunities, supra, 98 Conn. App. 646, is a “[rjobust” version of that doctrine that applies to nonordained employees whose jobs nevertheless axe religious in nature, like the plaintiff. The defendants contend that, with respect to religious employees like the plaintiff, employment disputes like this case are “per se religious such that adjudicating them will necessarily tread on the church’s protected rights” because the ministerial exception “exists to protect a church’s right to make core decisions without the oversight or interference of civil authorities.” Accordingly, the defendants argue in the present case that courts are categorically forbidden to inquire about the reasons for the plaintiffs termination or to consider her claims that the archdiocese failed to follow its own procedures, regardless of the trial court’s conclusion that a court can make this determination without inquiry into church teaching or doctrine. The defendants further emphasize that, although the ministerial exception had its genesis in cases brought under federal antidiscrimination statutes, it is equally applicable to the plaintiffs common-law
In response, the plaintiff argues that the ministerial exception does not bar all employment claims against a religious institution. Specifically, the plaintiff urges us to follow our prior case law finding decisions of the Second Circuit particularly persuasive and to adopt that court’s “more holistic and fact based test” articulated in Rweyemamu v. Cote, supra, 520 F.3d 208-209, which permits examination of the nature of the claims at issue in the case, rather than other federal circuits’ narrower version of the doctrine advocated by the defendants, which ends the inquiry once it is determined that the plaintiff is a ministerial employee. The plaintiff relies on case law applying the Second Circuit’s decision in Cote, namely, Rojas v. Roman Catholic Diocese of Rochester, supra, 557 F. Sup. 2d 387, and Redhead v. Conference of Seventh-Day Adventists, 566 F. Sup. 2d 125 (E.D.N.Y. 2008), aff'd, 360 Fed. Appx. 232 (2d Cir. 2010), for the proposition that a court does not decide religious issues when it determines whether a stated religious reason for termination is pretextual. The plaintiff further claims that the Appellate Court’s decision in Rweyemamu v. Commission on Human Rights & Opportunities, supra, 98 Conn. App. 646, is limited only to employment discrimination claims, and that under Petruska v. Gannon University, 462 F.3d 294 (3d Cir. 2006), cert. denied, 550 U.S. 903, 127 S. Ct. 2098, 167 L. Ed. 2d 813 (2007), Bollard v. California Province of the Society of Jesus, 196 F.3d 940 (9th Cir. 1999), and Minker v. Baltimore Annual Conference of United Methodist Church, 894 F.2d 1354 (D.C. Cir. 1990), the ministerial exception does not bar common-law contract and tort claims brought by ministerial employees. Finally, the plaintiff emphasizes that the trial court properly denied the defendants’ motion to dismiss because she seeks only money damages, rather than
“The standard of review for a court’s decision on a motion to dismiss [under Practice Book § 10-31 (a) (1)] is well settled. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [0]ur review of the court’s ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo. . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.” (Citation omitted; internal quotation marks omitted.) Gold v. Rowland, 296 Conn. 186, 200-201, 994 A.2d 106 (2010); see also Conboy v. State, 292 Conn. 642, 652-53, 974 A.2d 669 (2009) (discussing trial court’s responsibility to conduct evidentiary hearing when “jurisdictional determination is dependent on the resolution of a critical factual dispute” or is “intertwined with the merits of the case”). “In undertaking this review, we are mindful of the well established notion that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.” (Internal quotation marks omitted.) Conboy v. State, supra, 650.
Although the United States Supreme Court has not addressed the ministerial exception to date; but see footnote 19 of this opinion; every federal circuit has adopted the doctrine pursuant to either or both the free exercise and establishment clauses of the first amendment.
In determining whether a plaintiffs employment related claims against a religious institution are subject to the ministerial exception, the federal circuit courts generally rely in the first instance on the “primary duties analysis [that] requires a court to objectively examine an employee’s actual job function, not her title, in determining whether she is properly classified as a minister.”
That the plaintiff is a ministerial employee for purposes of the present appeal does not, however, necessarily end our inquiry, because the parties’ claims require us to address a split in the federal circuit courts of appeal as to the breadth of the ministerial exception that was not before the Appellate Court in Rweyemamu v. Commission on Human Rights & Opportunities, supra, 98 Conn. App. 646. Specifically, the plaintiff urges us to follow the approach taken by an emerging minority of circuits, including the Second Circuit in Rweyemamu v. Cote, supra, 520 F.3d 208, which considers the “nature of the dispute” in eschewing the categorical rejection of claims brought by ministerial employees. In adopting this more nuanced variant of the ministerial exception, the Second Circuit noted that, “although [the doctrine’s] name might imply an absolute exception, it is not always a complete barrier to suit; for example, a case may proceed if it involves a limited inquiry that, combined with the ability of the district court to control discovery, can prevent a wide-ranging intrusion into sensitive religious matters.” (Internal quotation marks omitted.) Id., 207. Citing tort and contract cases that did not implicate religious institutions’ freedom to select their leaders, the court noted that, “however high in the church hierarchy he may be, a plaintiff alleging particular wrongs by the church that are wholly [nonreligious] in character
The Third, Ninth and District of Columbia Circrnt Courts of Appeals have taken approaches similar to that of the Second Circrnt, and refrain from deciding oMy those cases that directly call into question the religious institution’s hiring or termination decision. In Petruska v. Gannon University, supra, 462 F.3d 306 n.8, wMch the Second Circrnt relied on m Rweyemamu v. Cote, supra, 520 F.3d 208, the Third Circrnt emphasized that the miMsterial exception “does not apply to all employment decisions by religious institutions, nor does it apply to all claims by mimsters. It applies oMy to claims mvolving a religious institution’s choice as
The United States Court of Appeals for the Ninth Circuit utilized a similar analysis in Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 965-67 (9th Cir. 2004), which followed its decision in Bollard v. California Province of the Society of Jesus, supra, 196 F.3d 940, and concluded that a minister who had raised retaliation and hostile work environment claims against his church under Title VII could proceed in an action limited to damages for emotional distress and reputational harm arising from acts of harassment and verbal intimidation, but could not recover any damages arising from the church’s protected actions of modifying her duties, and suspending and terminating her employment. The court found “no [f]irst [a]mendment basis for shielding the [c]hurch from its obligation to protect its employees from harassment when extending such protection
In contrast to this issue sensitive approach, the defendants urge us to follow the analysis followed by, inter alia, the United States Court of Appeals for the Seventh Circuit in declining to consider a claim for damages arising from harassment, under which the “ ‘ministerial exception’ applies without regard to the type of claims being brought.” Alicea-Hernandez v. Catholic Bishop of Chicago, supra, 320 F.3d 703. Courts following this categorical approach criticize the analysis followed by the Second and Ninth Circuits as unclear and subject to “arbitrary and confusing application . . . .” Skrzypczak v. Roman Catholic Diocese of Tulsa, 611 F.3d 1238, 1245 (10th Cir. 2010). In concluding that the ministerial exception bars hostile work environment claims brought by ministers under Title VII, the Tenth Circuit held in Skrzypczak that the ministerial exception barred actions under both Title VII and the Equal Pay Act of 1963 on the ground that adjudication would improperly interfere with the church’s right to select and direct its ministers free from state interference. Id., 1246; see also, e.g., Gellington v. Christian Methodist Episcopal Church, Inc., 203 F.3d 1299, 1301, 1304 (11th Cir. 2000) (ministerial exception barred minister’s Title VII claims of constructive discharge caused by 800 mile transfer and salary reduction after he aided another minister in lodging sexual harassment complaint).
In considering this circuit split, we note that it is well settled that decisions of the Second Circuit, while not binding upon this court, nevertheless “carry particularly persuasive weight” in the resolution of issues of federal law when the United States Supreme Court has not spoken on the point. See Szewczyk v. Dept. of Social Services, 275 Conn. 464, 475, 881 A.2d 259 (2005) (statutory interpretation); Schnabel v. Tyler, 230 Conn. 735,
Thus, we adopt the standard articulated by the Second Circuit in Rweyemamu v. Cote, supra, 520 F.3d 208-209,
Applying this standard to the claims raised in the complaint in this case, we first conclude that counts one and two, alleging breach of implied contract and the implied covenant of good faith and fair dealing, are barred by the ministerial exception. The plaintiff claims that the archdiocese’s own policies, procedures and practices with respect to performance evaluations; see footnote 3 of this opinion; created an implied contract that bound the archdiocese, and Bzdyra as the plaintiffs
Turning to the third count of the complaint, promissory estoppel, the plaintiff claims that she relied to her detriment on Bzdyra’s clear and unambiguous oral and written promises to allow her to evaluate her own performance and improve during the 2004-2005 school year, and to meet with her to discuss changes in her administration of the school. We conclude that this claim is barred by the ministerial exception because, like the implied contract claims, it is founded on a lack of compliance with the archdiocese’s personnel evaluation policies and procedures. If, as previously noted, the ministerial exception operates as a constitutional bar to claims sounding in contract based on the failure of a religious institution to follow its own procedures and bylaws in terminating a ministerial employee; see, e.g., Drevlow v. Lutheran Church, Missouri Synod, supra, 991 F.2d 470-72; then logical consistency demands that the exception similarly must bar a promissory estoppel claim arising on that same factual basis because that doctrine simply is an alternative to contractual liability for cases with reasonable reliance by a third party or promisee “despite the absence of common-law consideration normally required to bind a promisor.” (Internal quotation marks omitted.) D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 213, 520 A.2d 217 (1987); see also, e.g., Glazer v. Dress Barn, Inc., 274 Conn. 33, 88, 873 A.2d 929 (2005) (“[pjromissory estoppel is asserted when there is an absence of consideration to support
Turning to the fourth, fifth and sixth counts, wrongful termination in violation of public policy, negligent inflic
The judgment is reversed and the case is remanded with direction to render judgment dismissing the plaintiffs complaint.
In this opinion the other justices concurred.
The first amendment to the United States constitution provides in relevant part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” The first amendment has been made applicable to the states through the fourteenth amendment. See, e.g., State v. DeLoreto, 265 Conn. 145, 153, 827 A.2d 671 (2003).
The defendants appealed from the decision of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.
The archdiocese maintains numerous policies, procedures and practices that represent its commitment to a progressive and mutually engaging process to promote the improvement of employee performance prior to termination. These procedures require supervisors to document all findings, inform the employee of all shortcomings and performance deficiencies in light of specific facts, openly discuss problem areas, give the employee a full and fair opportunity to improve and implement changes, and provide the employee with all necessary assistance and guidance during that process. The archdiocese instructed the plaintiff about these policies and procedures several times during her thirty years of employment, and, as a principal, she conducted many performance evaluations and implemented performance improvement plans for teachers and staff.
The plaintiff had told the student and her mother that she would speak to Bzdyra and, if necessary, transfer the student to a different religion class.
See General Statutes § 17a-101 et seq.
The issue of Bzdyra’s allegedly inappropriate comments again arose later in October, 2003, when representatives of the New England Association of Schools and Colleges (association) conducted a site visit at the school. During this visit, a number of eighth grade girls, including the student who had complained to the plaintiff, informed Ann Marie Donnelly, a site visitor, that Bzdyra had made sexual comments that had made them feel uncomfortable. Donnelly then reported these complaints to Archdiocesan officials, including Mann; Mann subsequently informed the plaintiff and Bzdyra that the association was planning to report Bzdyra’s comments to the department.
Later, on the evening of January 20, 2005, the plaintiff spoke to Bzdyra by telephone; he directed her to tell concerned parents whom she had informed of the confusion about her employment status that the parents could not meet at the school without his permission, and that he would arrange to meet with them at a later date. Bzdyra also again complained about the plaintiffs failure to stick up for him with regard to the student’s complaints in October, 2003, and noted that he almost had to leave the parish after representatives from the association had reported those complaints to the archdiocese. See footnote 6 of this opinion.
On or about February 4, 2005, the plaintiff met with Hoyt, Mann and Bzdyra in an attempt to resolve the situation. She made clear that she wanted to remain as principal of the school. Bzdyra responded by stating, “ ‘Either she goes, or I go.’ ” Shortly thereafter, the archdiocese informed the plaintiff that it would place her at another school.
The plaintiff sought compensatory damages, lost wages, punitive damages, attorney’s fees, costs and prejudgment interest.
Specifically, the trial court determined that the “claims for breach of implied contract [allege] that the policies of the [archdiocese] were not followed prior to the plaintiffs termination, thereby denying the plaintiff her contractual right to address her alleged performance problems and cure them in a timely manner. Similarly, the claim for promissory estoppel alleges that the defendants] made a clear and definite promise on which the plaintiff reasonably relied to her detriment. The court will not be required to consider matters of religious belief or practice in deciding these claims.”
The trial court also noted that the “claims of tortious interference with contract and infliction of emotional distress are tort claims which pertain to the defendants’ treatment of the plaintiff, a thirty year employee, vis-á-
General Statutes § 52-263 provides in relevant part: “Upon the trial of all matters of fact in any cause or action in the Superior Court, whether to the court or jury, or before any judge thereof when the jurisdiction of any action or proceeding is vested in him, if either party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial, including the denial of a motion to set aside a verdict, he may appeal to the court having jurisdiction from the final judgment of the court or of such judge . . . .”
Prior to oral argument in this case, we raised this issue sua sponte in a letter to the parties, requesting that they be prepared to address at oral argument whether an appealable final judgment exists in this case.
See footnote 19 of this opinion.
We note, as did the Second Circuit in Rweyemamu v. Cote, supra, 520 F.3d 206 n.4, that some courts do not categorize ministerial immunity as a jurisdictional bar, but, rather, consider it akin to a legal defense like qualified immunity. See Skrzypczak v. Roman Catholic Diocese of Tulsa, 611 F.3d 1238, 1242 (10th Cir. 2010); Petruska v. Gannon University, 462 F.3d 294, 302-303 (3d Cir. 2006), cert. denied, 550 U.S. 903, 127 S. Ct. 2098, 167 L. Ed. 2d 813 (2007); Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 955 (9th Cir. 2004); Natal v. Christian & Missionary Alliance, 878 F.2d 1575, 1578 (1st Cir. 1989); Celnik v. Congregation B’Nai Israel, 139 N.M. 252, 255, 131 P.3d 102 (App. 2006). The issue remains an open question in the United States Courts of Appeal for the Fifth and Eleventh Circuits, although one district court in the Eleventh Circuit has recently concluded that the ministerial exception is not subject matter jurisdictional in nature. See Hopkins v. DeVeaux, United States District Court, Docket No. 1:10-CV-0572-JEC, 2011 U.S. Dist. LEXIS 27275, *30-31 (N.D. Ga March 16, 2011).
This topic also is the subject of some academic debate as well. Compare B. Martin, comment, “Protecting Preachers from Prejudice: Methods for Improving Analysis of the Ministerial Exception to Title VH,” 59 Emory L.J. 1297, 1333-34 (2010) (advocating raising ministerial exception under rule 12 [b] [6] rather than rule 12 [b] [1] of Federal Rules of Civil Procedure because “it is dangerous policy to allow the church to have the unfettered ability to mistreat its ministers without any fear of accountability in secular courts due to lack of subject matter jurisdiction”), with G. Kalscheur, “Civil Procedure and the Establishment Clause: Exploring the Ministerial Exception, Subject-Matter Jurisdiction, and the Freedom of the Church,” 17 Wm. & Mary Bill of Rts. J. 43, 101-102 (2008) (arguing that treating ministerial exception as subject matter jurisdictional in nature “implements our [cjonsti-tution’s recognition that the state is not the ultimate authority in all things— it embodies the constitutionally mandated principle that some things are above or beyond the jurisdiction of the law precisely because the [f]irst [ajmendment stands as an affirmation of the penultimacy of the state”).
The Fifth Circuit described the “minister [as] the chief instrument by which the church seeks to fulfill its purpose. Matters touching this relationship must necessarily be recognized as of prime ecclesiastical concern. Just as the initial function of selecting a minister is a matter of church administration and government, so are the functions which accompany such a selection. It is unavoidably true that these include the determination of a minister’s salary, his place of assignment, and the duty he is to perform in the furtherance of the religious mission of the church.” McClure v. Salvation Army, supra, 460 F.2d 659.
See McClure v. Salvation Army, supra, 460 F.2d 560 (“First [a]mendment values are plainly jeopardized when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice. If civil courts undertake to resolve such controversies in order to adjudicate the property dispute, the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern.” [Internal quotation marks omitted.]), quoting Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 449, 89 S. Ct. 601, 21 L. Ed. 2d 658 (1969); Kreshik v. St. Nicholas Cathedral of the Russian Orthodox Church of North America, 363 U.S. 190, 190-91, 80 S. Ct. 1037, 4 L. Ed. 2d 1140 (1960) (holding unconstitutional application of common-law rule that precluded Russian Patriarch’s appointees from exercising right to use and occupancy of cathedral granted by canon law); Kedroff v. St. Nicholas Cathedral of the Russian Orthodox Church of North America, 344 U.S. 94, 107, 73 S. Ct. 143, 97 L. Ed. 120 (1952) (holding unconstitutional state statute transferring administrative control of Russian Orthodox churches from Patriarch of Moscow to North American authorities); Watson v. Jones, supra, 80 U.S. 727 (ruling of Presbyterian Church’s highest ecclesiastical body was final as to which of two battling factions had control over church property).
Some circuits conclude that civil courts’ interference with a religious organization’s internal governance, including its choice of spiritual leaders, implicates the free exercise clause of the first amendment. See Skrzypczak v. Roman Catholic Diocese of Tulsa, 611 F.3d 1238, 1245-46 (10th Cir. 2010); Equal Employment Opportunity Commission v. Hosanna-Tabor Evangelical Lutheran Church & School, supra, 597 F.3d 777; Rweyemamu v. Cote, supra, 520 F.3d 208; Petruska v. Gannon University, supra, 462 F.3d 306-307; Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 956 (9th Cir. 2004);Alicea-Hernandez v. Catholic Bishop of Chicago, supra, 320 F.3d 703; Gellington v. Christian Methodist Episcopal Church, Inc., 203 F.3d 1299, 1303-1304 (11th Cir. 2000); Equal Employment Opportunity Commission v. Catholic University of America, 83 F.3d 455, 463 (D.C. Cir. 1996); Scharon v. St. Luke’s Episcopal Presbyterian Hospitals, 929 F.2d 360, 363 (8th Cir. 1991); Natal v. Christian & Missionary Alliance, 878 F.2d 1575, 1578 (1st Cir. 1989); Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164, 1169 (4th Cir. 1985), cert. denied, 478 U.S. 1020, 106 S. Ct. 3333, 92 L. Ed. 2d 739 (1986); McClure v. Salvation Army, supra, 460 F.2d 560. Many of the circuits also recognize that subjecting religious groups’ leadership employment decisions to the litigation process would also result in impermissible governmental entanglement with religious decision making in violation of the establishment clause, particularly if courts are called upon to determine the validity of proffered religious bases for an
If a court applies this analysis and determines that a plaintiff is a secular, rather than ministerial, employee of a religious institution, the court in discrimination cases may not question the sincerity of a professed religious reason for her termination, but nevertheless may determine whether that reason is being advanced as a pretext for unlawful discrimination. See Rweyemamu v. Cote, supra, 520 F.3d 207; see also, e.g., Redhead v. Conference of Seventh-Day Adventists, supra, 566 F. Sup. 2d 137 (denying motion for summary judgment because “although . . . [the] plaintiff must concede both the existence of [the] defendant’s policy and the genuineness of [the] defendant’s belief in that policy, a jury remains the proper instrument for determining ‘whether it was pregnancy or fornication that caused the [d] efen-dant to dismiss the [p]laintiff ”); Redhead v. Conference of Seventh-Day Adventists, supra, 138 (noting that multiple courts have not found that this inquiry will cause excessive entanglement).
We note that the United States Supreme Court recently granted the defendant’s petition for certiorari to appeal from the Sixth Circuit’s decision in Equal Employment Opportunity Commission v. Hosanna-Tabor Evangelical Lutheran Church & School, supra, 597 F.3d 769, to resolve a circuit split as to the application of the primary duties test to nonordained employees. See Equal Employment Opportunity Commission v. Hosanna-Tabor Evangelical Lutheran Church & School, supra, 563 U.S. 903. The question presented is “whether the ministerial exception applies to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship.” See Supreme Court Docket Search Page, available at http://www.supremecourt.gov/qp/10-00553qp.pdf (last visited July 22, 2011).
Because the plaintiff in Rweyemamu v. Commission on Human Rights & Opportunities, supra, 98 Conn. App. 655 and n.5, was a Roman Catholic priest, the Appellate Court did not need to consider whether the ministerial exception could be applied to nonordained employees.
Compare Equal Employment Opportunity Commission v. Hosanna-Tabor Evangelical Lutheran Church & School, supra, 597 F.3d 772, 778-80 (trial court not clearly erroneous in concluding that parochial school teacher with title of “commissioned minister” is not subject to ministerial exception when she taught “primarily secular subjects,” and was not required to be Lutheran in order to accomplish limited religious tasks), with Weishuhn v. Catholic Diocese of Lansing, 287 Mich. App. 211, 219, 787 N.W.2d 513 (finding “no error in the trial court’s conclusion that [a Catholic schoolteacher’s] duties were primarily religious, notwithstanding the fact that she taught four mathematics and two religion classes in her last year of teaching”), appeal denied, 488 Mich. 852, 787 N.W.2d 507 (2010).
After they filed this appeal, the defendants moved to have the trial court articulate whether the plaintiff was a ministerial employee on the basis that the court’s memorandum of decision was unclear as to that point. The plaintiff objected on the ground that the memorandum of decision was clear that the trial court deemed her to be a ministerial employee. The trial court
We also note that the Second Circuit’s approach to the ministerial exception has found academic support as “strik[ing] the right balance between the two societal values at stake by precluding suit only where a [fjirst [ajmendment violation is unavoidable and holding religious employers accountable for their discriminatory employment actions absent evidence of a religious motivation.” J. Vartanian, note, “Confessions of the Church: Discriminatory Practices by Religious Employers and Justifications for a More Narrow Ministerial Exception,” 40 U. Tol. L. Rev. 1049, 1073 (2009); see also id., 1074 (noting that “dismissal will often be appropriate” under Second Circuit’s approach and that “if courts are up to the task of applying a more careful analysis dependent on the type of claim asserted, they may provide relief to a few more victims of discrimination, a result that is a far cry from insignificant”).
In making this determination, the court should also consider, as a prudential matter that is a corollary to the substance of the claims in the case, the nature and extent of the discovery that it can permit and control, in order to “prevent a wide-ranging intrusion into sensitive religious matters.” (Internal quotation marks omitted.) Rweyemamu v. Cote, supra, 520 F.3d 207.
We disagree with the plaintiffs reliance on the conclusions of the United States Court of Appeals for the District of Columbia Circuit in Minker v. Baltimore Annual Conference of United Methodist Church, supra, 894 F.2d 1354, and the Third Circuit in Petruska v. Gannon University, supra, 462 F.3d 307, and Geary v. Visitation of the Blessed Virgin Mary Parish School, 7 F.3d 324, 329 (3d Cir. 1993). We note at the outset that Geary is inapposite because it is not a ministerial exception case; rather, it concerned only the applicability of the Age Discrimination in Employment Act, 29 U.S.C § 623 et seq., to the employment relationship between a parochial school and a lay teacher. Geary v. Visitation of the Blessed Virgin Mary Parish School, supra, 325.
In Minker v. Baltimore Annual Conference of United Methodist Church, supra, 894 F.2d 1359, the District of Columbia Circuit Court of Appeals concluded in part that the ministerial exception did not bar a pastor’s action for breach of an oral employment contract, assuming the truth of his allegation “that the district superintendent did in fact promise to provide [the pastor] with a congregation more suited to his training and skills in exchange for his continued work at the Mount Rainier Church . . . [which] clearly would create a contractual relationship.” The court emphasized that “[a] church is always free to burden its activities voluntarily through contracts, and such contracts are fully enforceable in civil court”; id.; and rejected the church’s claim that “even proving the existence of a contract in this case would require the sort of inquiry into subjective, spiritual, and ecclesiastical matters that the first amendment prohibits,” and would result in entanglement via the discovery and trial process. Id., 1359-60. The court held that “the first amendment does not immunize the church from all temporal claims made against it,” and that the pastor “should be allowed to demonstrate that he can prove his case without resorting to impermissible avenues of discovery or remedies,” given that, “[a]s a theoretical matter, the issue of breach of contract can be adduced by a fairly direct inquiry” into whether the superintendent had made the claimed promises. Id., 1360. Similarly, in Petruska v. Gannon University, supra, 462 F.3d 307, the Third Circuit concluded that the ministerial exception barred a university chaplain’s claims of Title VH discrimination and retaliation, civil conspiracy and negligent supervision, but not her claims for fraudulent misrepresentation or breach of contract arising from a clause in her employment contract that specifically entitled her to participate on the university president’s staff. See also id., 309-310 (dismissing civil conspiracy and negligent supervision claims “[bjecause the [f]irst [a]mendment protects [the university’s] right to restructure — regardless of its reason for doing so — we cannot consider
Moreover, the plaintiffs wrongful discharge claim, while disturbing in nature, may well not be legally sufficient under Sheets v. Teddy’s Frosty Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980), given that she was not discharged from at will employment but, rather, was employed pursuant to a term contract of fixed duration. See D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, 202 Conn. 211 n.1 (The court noted that “the right to recover in tort for wrongful discharge extends only to employees at will” and “[t]he plaintiff in this case, who was employed by the defendants pursuant to a term contract of fixed duration, was not an employee at will. She therefore was not entitled to invoke the doctrine of wrongful discharge.”).