MARLON PENN, Plaintiff‐Appellant, –v.– NEW YORK METHODIST HOSPITAL, PETER POULOS, Defendants‐Appellees.
Docket No. 16‐474‐cv
United States Court of Appeals for the Second Circuit
Decided: March 7, 2018
August Term, 2016 (Argued: January 9, 2017)
Before: HALL, DRONEY, Circuit Judges, AND BOLDEN, District Judge.*
JUDGE DRONEY dissents in a separate opinion.
VINCENT IHEKE EKE‐NWEKE, Law Offices of Vincent I. Eke‐Nweke, P.C., Brooklyn, NY, for the Plaintiff‐Appellee
A. JONATHAN TRAFIMOW, Julia Gavrilov, Moritt Hock & Hamroff LLP, Garden City, NY, for the Defendants‐Appellees
BOLDEN, District Judge:
In Fratello v. Archdiocese of New York, 863 F.3d 190 (2d Cir. 2017), this Court recently addressed the Supreme Court’s decision in Hosanna‐Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171 (2012), adopting the “ministerial exception” doctrine and recognizing that the First Amendment protects religious employers from employment discrimination lawsuits brought by their ministers.
Between 2004 and 2011, Marlon Penn worked at the New York Methodist Hospital (“NYMH“) as a Duty Chaplain. Peter Poulos, as Director of the Pastoral Education Program and the Department of Pastoral Care, supervised Mr. Penn’s employment. In November 2011, NYMH and Mr. Poulos terminated Mr. Penn’s employment. On December 12, 2011, Mr. Penn filed suit, bringing claims under Title VII of the Civil Rights Act,
I. BACKGROUND
A. The History of New York Methodist Hospital
Founded in 1881 at the “behest” of a Methodist minister and with financing from a Methodist philanthropist, Joint App’x at 383, the United Methodist Church
NYMH also promotes its secular nature. For example, the “Welcome Letter” from Executive Vice President Stanley Sherbell to new medical residents at NYMH, which is published on the hospital’s webpage, calls the hospital a “secular institution.” Joint App’x at 353. Additionally, NYMH “downsized” its “Department of Church Relations” about fifteen years ago, according to Lyn Hill, NYMH’s Vice President of Communication and External Affairs. Joint App’x at
Nevertheless, vestiges of NYMH’s religious heritage remain. It has steadfastly kept the word “Methodist” in its name, despite organizational and operational changes. In 1993, for example, NYMH became affiliated with the New York‐Presbyterian Health Care system, but continued to call itself a “Methodist” hospital. Joint App’x at 51. More than twenty years ago, but after the amendment of NYMH’s Certificate of Incorporation, the United Methodist Association Journal observed that “the [hospital’s] Methodist influence can still be seen in the hospital through the philosophy of equality, individual attention, charity, faith, and hope that is communicated to NYMH employees every day.” Joint App’x at 108‐10. The article also highlighted the hospital’s Methodist archives project, the twenty‐four hour service provided by the pastoral care department, and the memorial plaque in front of NYMH commemorating its “status as the first Methodist hospital in the world.” Id.
In 2006, NYMH produced a booklet commemorating its 125th anniversary and noted “its identity as the mother hospital of Methodism.” Joint App’x at 60.
NYMH’s by‐laws continue to require “significant representation from the community and the United Methodist Church” on its Board of Trustees. Joint App’x at 56; Joint App’x at 84‐85. When Mr. Penn filed suit, three of NYMH’s seventeen Board members, including the Chairman, were Methodist ministers. Joint App’x at 383. The three ministers did not serve as representatives of the Church on the Board of Trustees, however, and NYMH could not identify how exactly they were appointed. Joint App’x at 351. The by‐laws further require NYMH to select a president “with the advice and counsel of the Bishop of the New York area of the United Methodist Church.” Joint App’x at 56. The Order of Business in the by‐laws also mandates that every regular Board meeting begin with prayer. Joint App’x at 56, 89.
NYMH has retained significant aspects of its religious heritage in other ways. At the hospital’s employee orientation, Chaplain Peter Poulos reminds every employee that “patients are human beings who are created in the image of God.” Joint App’x at 52. Additionally, the hospital has a “pastor’s clinic” for
B. NYMH’s Department of Pastoral Care
This case specifically concerns NYMH’s Department of Pastoral Care. The Department of Pastoral Care’s mission is to provide an “ecumenical program of pastoral care” to patients and to “see that the needs of the whole person—mind and spirit as well as body—are met.” Joint App’x at 356. Appellee Peter Poulos is the director of the Department and also directs its pastoral training program. Joint App’x at 358.
Staff Chaplains at NYMH counsel patients, including those who are making end‐of‐life decisions, and “facilitate the patient’s receiving [of] the rituals and practices of his/her own faith tradition when requested.” Joint App’x at 363. A chaplain in the Department of Pastoral Care is required:
- To minister to patients, their families, and staff in his/her assigned patient units in accordance with the protocols and procedures of the Department of Pastoral Care;
To facilitate the patient’s receiving the rituals and practices of his/her own faith tradition when requested; - To counsel patients and families, who struggle with how their faith/belief systems influence the way they deal with hospitalization and decisions they may need to make;
- To counsel patients, families and staff as they deal with experiences of significant change, grief and loss;
- To offer prayer, ritual, devotional materials to patients and families when requested; and
- To participate in coordinating and conducting chapel services as requested by the Director (holiday services, employee memorial services, Sunday worship services, etc.).
Joint App’x at 407.1 According to Vice President Hill, every chaplain is considered “clergy.” Joint App’x at 43. Formal ordination is not a requirement for chaplaincy,
The Department of Pastoral Care seeks to accommodate various faiths. Joint App’x at 80; Joint App’x at 363 (agreeing to the statement “if it is necessary, you can get a chaplain from any religion, even if the hospital does not have such a chaplain on staff“). It maintains religious spaces for non‐Methodists and coordinates the “hospital’s meeting the different needs of the religious denominations represented in our patient population.” Joint App’x at 359.
The Department of Pastoral Care is integrated into NYMH’s non‐pastoral work. At times, it coordinates religious events for non‐pastoral staff. Mr. Poulos stated that he is often asked to say prayers at the opening of “ceremonies, graduations, [and] employee recognition [events],” and that he leads an orientation on Methodism for new staff. Joint App’x at 362. Additionally, representatives of the Department sit on NYMH’s “interdisciplinary committees” for bioethics and “hospice/palliative care,” as well as the institutional review board for research projects. Joint App’x at 367.
Marlon Penn, an African‐American Methodist, served as a Chaplain Trainee (or “Resident Chaplain“) at NYMH’s Clinical Pastoral Education Residency Program from January 2002 to July 2004. Joint App’x at 439. In July 2004, NYMH hired him as a Duty Chaplain. As Mr. Penn readily admits, he was “primarily responsible for ministry” in this role. Joint App’x at 238. He also coordinated the distribution of Bibles, conducted an in‐hospital memorial service for an employee who died, and “maintained . . . active, on‐going pastoral care to staff.” Id.
During his tenure at NYMH, Mr. Penn “repeatedly requested” that NYMH promote him to a full‐time Staff Chaplain position. Joint App’x at 449. Despite these requests, NYMH never promoted Mr. Penn. In September 2006, NYMH hired Rabbi Spitz as a full‐time Staff Chaplain, without interviewing Mr. Penn. In August 2010, the hospital once again sought a full‐time chaplain, this time to replace Sister Therese Camardella. Id.; Joint App’x at 446. Mr. Penn expressed interest in the position. Mr. Poulos initially tried to replace her with a Catholic and mentioned this to Mr. Penn. When he could not find a viable Catholic candidate, Mr. Poulos offered the position to Joo Hong, who was not Catholic. Id.; Joint App’x at 450. Mr. Poulos stated that he chose Ms. Hong because she “received very
Mr. Poulos said that he did not consider Mr. Penn for the Staff Chaplain position for several reasons. One resident had complained to Mr. Poulos that Mr. Penn ended a service with a hymn that was only familiar to a certain group of Christians. Appellee’s Br., 13‐14. Mr. Poulos and Mr. Penn also disagreed about the importance of “full coverage.” Id. According to appellees, this was a “philosophical” disagreement, because Mr. Penn felt that “effective ministry to those in pain/crisis is never contingent on . . . time constraints,” Joint App’x at 207 (summarizing Mr. Penn’s rebuttal statement at the New York Human Rights Commission), and Mr. Poulos disagreed. Nevertheless, during the course of his employment, NYMH also commended Mr. Penn for being “conscientious,” “reliable,” and “helpful.” Joint App’x at 239.
On September 26, 2010, Mr. Penn filed an administrative complaint with the New York City Commission on Human Rights (“CCHR“) and the U.S. Equal Employment Opportunity Commission (“EEOC“), alleging that Appellees had failed to promote him because of his race and religion. Joint App’x at 457. He also alleged that Appellees failed to reasonably accommodate his religious beliefs,
After Mr. Penn filed his administrative complaint, Appellees allege, his performance at work began to deteriorate. Appellees pointed to many instances of misconduct. On March 13, 2011, Mr. Penn improperly completed a “referral card,” which resulted in a patient dying without receiving last rites. Appellee’s Br. at 14 (citing “The Anointing Incident“). On the same day, a woman whose fetus had died complained about Mr. Penn’s counseling because he commented on her partner’s race. Id. at 15 (“The Fetal Demise Incident“). At an Easter Service in 2011, Mr. Penn told a Catholic nurse that she could not receive communion until the following day, although he purportedly knew that she could receive communion across the street. Id. at 16 (“The April 11, 2011 Easter Service“).
D. Procedural History
On December 12, 2011, Mr. Penn filed suit in the United States District Court for the Southern District of New York. In his second amended complaint, he asserted that Appellees: (1) discriminated against him on the basis of his race and religion, in violation of Title VII of the Civil Rights Act of 1964 (against NYMH only), and
On September 30, 2013, the district court partially granted Appellees’ motion to dismiss by: (1) dismissing Plaintiffs claims under
On July 8, 2015, Appellees moved for summary judgment, asserting that the ministerial exception barred all of Mr. Penn’s remaining claims, and, in the alternative, that no reasonable jury could find for Mr. Penn on his claims of discrimination and retaliation. The district court granted the motion, concluding that the ministerial exception applied. Penn v. N.Y. Methodist Hosp., 158 F. Supp. 3d 177 (S.D.N.Y. 2016). In addressing the issue of “whether NYMH is a ‘religious institution’ for purposes of the ministerial exception,” id. at 182, the court followed the reasoning of another district court decision, Musante v. Notre Dame of Easton Church, 3:01‐CV‐2352 (MRK), 2004 WL 721774, at *6 (D. Conn. Mar. 30, 2004), and concluded that the “ministerial exception should be viewed as a sliding scale, where the nature of the employer and the duties of the employee are both
The district court noted that “where an employee’s role is extensively religious, a less religious employer may still create entanglement issues.” Penn, 158 F. Supp. 3d at 182. Since Mr. Penn’s role at NYMH was “pervasively religious[,] application of the ministerial exception to a less religious institution [was] warranted.” Id. The district court further held that NYMH’s amendment of its Certificate of Incorporation “sever[ed] all formal ties with the United Methodist Church,” but did not “necessarily imply that the Hospital d[id] not maintain any church‐based relationship or have any religious characteristics.” Id. at 182‐83. Indeed, the district court recognized NYMH’s “connection with the United Methodist Church,” its mission statement which “emphasize[d] an ‘ecumenical program of pastoral care,’” and Mr. Penn’s own religious identification as a Methodist and deemed these undisputed facts sufficient to warrant the application of the ministerial exception. Id. at 184.
This appeal followed.
We review de novo a grant of summary judgment under
III. DISCUSSION
The purpose of the ministerial exception is to “ensure[] that the authority to select and control who will minister to the faithful—a matter ‘strictly ecclesiastical,’ . . .—is the church’s alone.” Hosanna‐Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171, 194‐95 (2012)(quoting Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in N. Am., 344 U.S. 94, 119 (1952)); see also Fratello v. Archdiocese of New York, 863 F.3d 190, 199 (2d Cir. 2017) (describing the roots of the ministerial exception in the colonial struggle against a “national church“). The ministerial exception “operates as an affirmative defense to an
As this Court has previously recognized, “[i]t is the relationship between the activities the employee performs for her employer, and the religious activities the employer espouses and practices, that determines” whether the exception applies. Fratello, 863 F.3d at 205‐06. Additionally, as both the Supreme Court and this Court have acknowledged, there is no “rigid formula for deciding when” the exception applies. Hosanna‐Tabor, 565 U.S. at 190; see also Fratello, 863 F.3d at 204‐05 (considering four factors identified in Hosanna‐Tabor to evaluate whether individual was a minister within the meaning of the exception, but noting the Supreme Court “instructs only as to what we might take into account as relevant . . . it neither limits the inquiry to those considerations nor requires their application in every case.“).
Applying these principles here and construing all evidence in the light most favorable to Mr. Penn, see Ruggiero, 467 F.3d at 173, the district court did not err in applying the ministerial exception doctrine.2 While a close question, NYMH,
because of its history and continuing purpose, through its Department of Pastoral Care, is a “religious group,” and since Mr. Penn’s role within the Department of Pastoral Care was to provide religious care to the hospital’s patients and religious care only, the ministerial exception doctrine should be applied.3 Once applied, its application warrants this lawsuit’s dismissal. Any other conclusion risks violating the First Amendment’s Religion Clauses, most specifically the Establishment Clause.
A. The Application of the Ministerial Exception Doctrine
While the Hosanna‐Tabor decision made clear that the ministerial exception applies to “religious groups” when making employment decisions involving “ministers,” see Hosanna‐Tabor, 565 U.S. at 196, the Supreme Court did not “adopt
Both before and after Hosanna Tabor, other circuits have applied the ministerial exception in cases involving “religiously affiliated entit[ies],” whose “mission[s are] marked by clear or obvious religious characteristics.” Conlon v. InterVarsity Christian Fellowship, 777 F.3d 829, 834 (6th Cir. 2015) (quoting Shaliehsabou v. Hebrew Home of Greater Wash., 363 F.3d 299, 310 (4th Cir. 2004)). In Shaliehsabou, the Fourth Circuit allowed a Jewish nursing home to invoke the ministerial exception because its “by‐laws define[d] it as a religious and charitable non‐profit corporation and declare[d] that its mission was to provide elder care to ‘aged of the Jewish faith in accordance with the precepts of Jewish law and customs.’” Id. at 310; see also Conlon, 777 F.3d at 833‐34 (“It is undisputed that
Courts have also allowed hospitals to invoke the ministerial exception doctrine in employment suits from pastoral staff members. See Hollins v. Methodist Healthcare, 474 F.3d 223, 226 (6th Cir. 2007) (“We agree with this extension of the rule beyond its application to ordained ministers and hold that it applies to the plaintiff in this case, given the pastoral role she filled at the hospital.“), rev’d in part on other grounds by Hosanna‐Tabor, 565 U.S. at 195 n.4; Scharon v. St. Luke’s Episcopal Presbyterian Hosps., 929 F.2d 360, 362 (8th Cir. 1991) (“It cannot seriously be claimed that a church‐affiliated hospital providing this sort of ministry to its patients is not an institution with substantial religious character. . . . While St. Luke’s provides many secular services (and arguably may be primarily a secular institution), in its role as Scharon’s employer it is without question a religious organization.“) (citations omitted); see also Shaliehsabou, 363 F.3d at 310‐11 (“Pursuant to [its] mission, the Hebrew Home maintained a rabbi on its staff, employed mashgichim to ensure compliance with the Jewish dietary laws, and placed a mezuzah on every resident’s doorpost. Although we do not have to decide the full reach of the phrase
Mr. Penn argues, however, that NYMH is not a religious institution. He maintains that the hospital is no longer affiliated with the United Methodist Church. Indeed, NYMH took steps to distance itself from its religious heritage. Its by-laws no longer require the hospital to seek permission from the United Methodist Church to make significant business decisions, see Hollins v. Methodist Healthcare, 379 F. Supp. 2d 907, 909 (W.D. Tenn. 2005), nor do they give the United Methodist Church the power to veto any amendment to the hospital‘s articles of incorporation, Scharon, 929 F.2d at 362 (adding that “[t]he hospital‘s Board of Directors consists of four church representatives and their unanimously agreed-upon nominees“).
Furthermore, NYMH‘s Methodist identity does not infuse its performance of its secular duties, making it less clear that its “mission is marked by clear or obvious religious characteristics.” Shaliehsabou, 363 F.3d at 310-11 (observing that the defendant nursing home required staff to comply with religious laws while administering healthcare, hung a mezuzah on each patient‘s doorway, and stated in its by-laws that its mission was to serve the “aged of Jewish faith“). Except for
These arguments, however, ignore how the hospital‘s Department of Pastoral Care operates and how these operations are “marked by clear or obvious religious characteristics.” Conlon, 777 F.3d at 834. The Department of Pastoral Care required chaplains, like Mr. Penn, to distribute Bibles, perform religious rituals and organize and conduct religious services, including Easter services and memorial services. While NYMH may have shed significant aspects of its religious identity by amending its Certificate of Incorporation, the hospital‘s Department of Pastoral Care has retained a critical aspect of that religious identity in order to provide religious services to its patients. These services, while not limited to those who are Methodist, are indisputably religious.4 Mr. Penn himself acknowledges as
In its ruling on summary judgment, the district court determined that “the relationship between Plaintiff and NYMH (specifically, the Department of Pastoral Care) was that of a religious employee and a religious institution.” Penn, 158 F. Supp. 3d at 184 (limiting its decision by noting that it was made “insofar as Plaintiff is a Methodist and was responsible—at least in part—for preaching the Christian faith“). While Mr. Penn challenges whether the “obvious religious
B. This Application of the Ministerial Exception Doctrine Properly Recognizes the Establishment Clause‘s Prohibition Against Excessive Entanglement With Religion
This application of the ministerial exception doctrine, that the NYMH‘s Department of Pastoral Care is a “religious group,” one consistent with the relevant precedent and this case‘s undisputed facts, properly balances the constitutional consequences of not doing so: the risk of excessive entanglement
As this Court has recognized, ”Hosanna-Tabor made clear that the
Indeed, this Court in Rweyemamu clarified the important constitutional issues behind the ministerial exception doctrine. There, a Catholic priest filed suit against the local Bishop and Diocese, alleging employment discrimination in violation of
As the Court noted: “[H]ow are we, as Article III judges, to gainsay the Congregatio Pro Clericis’ conclusion that [Rweyemamu] is insufficiently devoted to ministry? How are we to assess the quality of his homilies?” Id. at 209; see Bronx Household of Faith v. Bd. of Educ. of N.Y.C., 750 F.3d 184, 199 (2d Cir. 2014) (“[A]t the very least . . . the
Any jury hearing Mr. Penn‘s employment discrimination and retaliation claims therefore would have to determine how a minister should conduct religious
Any of these decisions, all indisputably necessary to the adjudication of Mr. Penn‘s claims—even if intertwined with some secular concerns—“would plunge [the Court] into a maelstrom of Church policy, administration, and governance,” Rweyemamu, 520 F. 3d at 209 (citing Natal v. Christian and Missionary Alliance, 878 F.2d 1575, 1578 (1st Cir. 1989) (internal quotation marks omitted), and risk “government involvement in . . . ecclesiastical decisions.” Hosanna-Tabor, 565 U.S. at 171.7 This Court has cautioned that judges are “ill-equipped to assess whether,
and to what extent, an employment dispute between a minister and his or her religious group is premised on religious grounds.” Fratello, 863 F.3d at 203. And, when a court is asked to “take sides in a religious matter,” Commack, 294 F.3d at 425, the court must dismiss the case. See Culvert, 753 F.2d at 1168 (recognizing that “the
IV. CONCLUSION
For the reasons stated above, the judgment of the district court is AFFIRMED.
The majority holds that a secular hospital with minimal vestiges of its religious lineage may assert the Religion Clauses of the
I. The Religion Clauses of the First Amendment and the Ministerial Exception
The
[r]equiring 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.
Hosanna-Tabor, 565 U.S. at 188-89.
In order for a defendant-employer to claim the protections of the ministerial exception, two distinct requirements must be met: (1) the plaintiff must be a minister; and (2) the defendant must be a religious institution. See Hosanna-Tabor, 565 U.S at 188-89 (holding that the ministerial exception “precludes application of [civil rights] legislation to claims concerning the employment relationship between a religious institution and its ministers” (emphasis added)); Fratello, 863 F.3d at 198
Because Penn does not challenge that he is a “minister” for the purposes of the ministerial exception, it is only necessary to resolve whether New York Methodist Hospital (“NYMH“) qualifies—today—as a “religious institution.”
II. The Meaning of “Religious Institution”
Today, the majority joins the Fourth Circuit in holding that “a religiously affiliated entity is a ‘religious institution’ for purposes of the ministerial exception whenever that entity‘s mission is marked by clear or obvious religious characteristics.” Shaliehsabou, 363 F.3d at 310. While I agree that this approach is consistent with the Supreme Court‘s guidance in Hosanna-Tabor, I disagree with the majority‘s application of it to the hospital defendant here.2
III. NYMH is not a “Religious Institution”
There is no question that in 1881, when the Methodist Hospital of Brooklyn was founded by a Methodist minister and a Methodist benefactor, it was a religiously-affiliated entity subject to the protections of the
The majority acknowledges many of the undisputed facts set forth below, but concludes that they do not show that NYMH is no longer a religious institution.
But, in 1974, the Certificate was again amended “to delete provisions relating to the [hospital‘s] relationship with The United Methodist Church.” App. 269. The amendment also removed the Bishop of the New York Area of the United States Methodist Church and the President of the Guild of Methodist Hospitals from the board of trustees, and deleted the language from the 1973 amendment
Although the current chair of the Hospital Board is a Methodist minister, only three of its seventeen trustees are Methodist ministers, and NYMH has conceded that they (including the chair) “do[] not . . . represent any unit of the United Methodist Church [in their role] on the Hospital Board of Trustees.” App. 351.3 There is also no evidence in the record that the Methodist Church retains any influence over any part of the Hospital‘s day-to-day or long-term operations. Nor is there evidence that Methodist religious doctrine guides NYMH or its Department of Pastoral Care‘s operations.4
The mission statement sets forth six “primary objectives:”
- To make services accessible to patients and physicians without regard to age, sex, race, creed, national origin, or disability;
- To provide patients with an environment that assures the continuous enhancement of patient safety;
- To provide an active ecumenical program of pastoral care and to conduct a clinical pastoral education program;
- To offer an environment that is responsive to new and changing technologies and management principles that will stimulate creative solutions for our patients, physicians and employees;
- To assess periodically the healthcare needs of the community and to respond to those these needs with healthcare services, including health education for patients and community residents;
- To work with members of the New York-Presbyterian Healthcare System and other healthcare institutions, physicians and community groups in jointly pursuing the delivery of quality healthcare services, medical education and clinical research.
Id.
In describing its primary objectives, NYMH‘s mission statement does not refer to the United Methodist Church or Methodism. Only one of the six objectives
Indeed, the description of the Department of Pastoral Care on NYMH‘s website does not mention the Methodist faith. The purpose of the Department is, according to NYMH‘s website, “[t]o see that the needs of the whole person—mind and spirit as well as body—are met.” App. 356. The Department is “an essential feature of NYM‘s holistic approach to healthcare.” Id. Chaplains at NYMH “can come from any faith tradition,” and “will visit all patients on their assigned units regardless of their patients’ religious affiliations.” Id. If patients have faith-specific needs, the Department is “ready to connect patients and their families with the specific rituals and services offered by their particular faith group.” Id. For example, the Department can “arrange for a Roman Catholic Eucharistic minister to bring communion . . . or . . . to perform an anointing of the sick.” Id. Three places of worship are available at the hospital: a Christian chapel, a Jewish prayer room, and a Muslim prayer room.
None of the three full-time chaplains of the Hospital‘s Department of Pastoral Care are Methodist. Defendant Peter Poulos, its Director, is Greek
Finally, the Department runs a Clinical Pastoral Education (“CPE“) residency program to train chaplains, typically training between three and six residents at a time. Between 2008 and 2011, Poulos hired 23 residents into the CPE program. Of those 23, only one was Methodist.
In sum, NYMH‘s mission and operations are not “marked by clear or obvious religious characteristics.” Shaliehsabou, 363 F.3d at 310. While many religious hospitals, schools or other entities could certainly qualify as religious institutions and receive the protections of the ministerial exception, NYMH is no longer such a religious institution.
This case is easily distinguishable from those in other circuits where courts have applied the ministerial exception to bar suits by employees of entities related to religious institutions.
For example, in Scharon v. St. Luke‘s Episcopal Presbyterian Hosps., the Eighth Circuit decided that St. Luke‘s, “a church-affiliated hospital,” was entitled to invoke the ministerial exception in an age and sex discrimination case brought by
In Shaliehsabou, the Fourth Circuit concluded that a Jewish nursing home—the Hebrew Home of Greater Washington—was a religious institution for the purposes of the ministerial exception to the
In Conlon v. Intervarsity Christian Fellowship, the Sixth Circuit held that “an evangelical campus mission serving students and faculty on college and university campuses nationwide” was entitled to invoke the ministerial exception. 777 F.3d 829, 831 (6th Cir. 2015). The group‘s “vision [was] to see students and faculty transformed, campuses renewed and world changers developed,” and its purpose “[was] to establish and advance at colleges and universities witnessing communities of students and faculty who follow Jesus as Savior and Lord: growing in love for God, God‘s Word, God‘s people of every ethnicity and culture and God‘s purposes in the world.” Id. Additionally, the group “believe[d] in the sanctity of marriage and desire[d] that all married employees honor their marriage vows.” Id. The plaintiff, a “spiritual director” of the group, had been terminated for contemplating divorce from her husband. Id. at 832. Divorce violated the policy of the group requiring all married employees to “honor their marriage
In contrast, neither Methodist doctrine nor Methodist Church leadership have a significant role at NYMH. While NYMH may still have some limited religious aspects—for example, Board meetings begin with a prayer and all employees are reminded that “patients are human beings who are created in [the] image of God,” App. 51 (alteration in original),—it is not nearly as pervasively religious as entities that other Courts of Appeals have deemed sufficiently religious to warrant application of the ministerial exception.
While NYMH began as a Methodist hospital, it no longer is; it is a modern, secular hospital that serves a diverse group of patients in Brooklyn. Indeed, the majority acknowledges that Methodism does not “infuse [NYMH‘s] performance of its secular duties” or “pervade its work as a healthcare organization.” Slip Op. at 22. Nevertheless, the majority concludes that NYMH is a religious institution by focusing its analysis solely on the Department of Pastoral Care and Penn‘s role in it, noting that “[Penn] does not and cannot dispute that he performed religious services for [the Department].” Slip Op. at 24.
[t]he ministerial exception should be viewed as a sliding scale, where the nature of the employer and the duties of the employee are both considered in determining whether the exception applies. . . . [T]he more pervasively religious an institution is, the less religious the employee‘s role need be in order to risk first amendment infringement.” On the other hand, where an employee‘s role is extensively religious, a less religious employer may still create entanglement issues.
Penn v. New York Methodist Hosp., 158 F. Supp. 3d 177, 182 (S.D.N.Y. 2016) (first alteration in original) (quoting Musante v. Notre Dame of Easton Church, No. CIV.A. 301CV2352, 2004 WL 721774, at *6 (D. Conn. Mar. 30, 2004)). The district court concluded that “[i]n light of Plaintiff‘s exceedingly ministerial role, application of the ministerial exception to a less religious institution may be warranted.” Id.
The origin of the “sliding scale” approach appears to be the district court‘s opinion in Musante. In Musante, the plaintiff‘s employer was a Catholic church in the Diocese of Bridgeport. 2004 WL 721774, at *1. As the church was obviously a religious institution, the only question before the district court was whether the plaintiff, a lay person but the “Director of Religious Education . . . and Pastoral
In support of its application of the sliding scale approach to determining whether NYMH is a religious institution, the district court below also relied on language from our decision in Rweyemamu v. Cote indicating that “[t]he more ‘pervasively religious’ the relationship between an employee and his employer, the more salient the free exercise concern becomes.” 520 F.3d 198, 208 (2d Cir. 2008). However, this statement does not justify the application of a sliding scale approach to determining whether an institution is religious. Rweyemamu used that
In order for the ministerial exception to apply, two distinct conditions must be met: the plaintiff must be a minister and the defendant must be a religious institution. Indeed, “the exception does not apply to the religious employees of secular employers or to the secular employees of religious employers.” Shaliehsabou, 363 F.3d at 307. Accordingly, no matter how religious the role of the employee—indeed, even if the employee is in fact a minister performing religious functions—the ministerial exception will not apply unless the employer is a religious institution. While the sliding scale approach may be useful in determining whether an employee is a “minister,” it has no application to determining whether an institution is religious.
Penn and the other members of the Department of Pastoral Care are, at most, “religious employees of [a] secular employer[].” Id. The presence of a non-sectarian chaplaincy department cannot transform an otherwise secular hospital into a religious institution for purposes of the ministerial exception. If it could, most hospitals would be exempt from anti-discrimination laws, as most—even
Because there is insufficient evidence that NYMH‘s “mission is marked by clear or obvious religious characteristics,” Shaliehsabou, 363 F.3d at 310, I conclude that it does not qualify as a religious institution for purposes of the ministerial exception.8
IV. Conclusion
For the reasons stated above, I would vacate the district court‘s grant of summary judgment on the basis of the ministerial exception, and remand to the district court for further proceedings.
Notes
- whether the entity operates for a profit,
- whether it produces a secular product,
- whether the entity‘s articles of incorporation or other pertinent documents state a religious purpose,
- whether it is owned, affiliated with or financially supported by a formally religious entity such as a church or synagogue,
- whether a formally religious entity participates in the management, for instance by having representatives on the board of trustees,
- whether the entity holds itself out to the public as secular or sectarian,
- whether the entity regularly includes prayer or other forms of
worship in its activities, - whether it includes religious instruction in its curriculum, to the extent it is an educational institution, and
- whether its membership is made up by coreligionists.