Justia.com Opinion Summary: Plaintiff, employee, brought an action against Defendants, an archdiocese and a parish pastor, claiming that their refusal to renew her contract for employment as the principal of the parish school constituted, inter alia, wrongful termination in violation of public policy, breach of implied contract and breach of promissory estoppel. The trial court denied Defendants' motion to dismiss the action on the ground that adjudication of Plaintiff's claims called for impermissible judicial interference in the internal governance of the archdiocese with respect to its selection of religious leaders. At issue on appeal was whether the ministerial exception to judicial authority that precludes a court from adjudicating certain religious disputes required dismissal of the action. The Supreme Court first determined it had subject matter jurisdiction over the interlocutory appeal, and then reversed the trial court, holding that (1) in considering whether the ministerial exception is applicable in a particular case, a Connecticut state court must follow the Rweyemamu v. Cote standard; and (2) the ministerial exception applied to the various claims in the plaintiff's complaint. Remanded with direction to dismiss Plaintiff's complaint.
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PATRICIA DAYNER v. ARCHDIOCESE OF
HARTFORD ET AL.
(SC 18468)
Rogers, C. J., and Norcott, Palmer, McLachlan, Eveleigh and Vertefeuille, Js.
Argued March 16—officially released August 2, 2011
Lorinda S. Coon, with whom, on the brief, was Jeffrey
C. Pingpank, for the appellants (defendants).
Henry F. Murray, with whom, on the brief, was
Nicole M. Rothgeb, for the appellee (plaintiff).
Opinion
NORCOTT, J. This appeal requires us to consider the
contours of the ministerial exception, under the first
amendment to the United States constitution,1 to Connecticut courts’ subject matter jurisdiction over certain
employment related claims brought against religious
institutions. The plaintiff, Patricia Dayner, brought this
action against the defendants, the Archdiocese of Hartford (archdiocese) and Father Stephen Bzdyra, pastor
of Saint Hedwig’s Parish in Naugatuck, claiming that
their refusal to renew her contract for employment as
the principal of Saint Hedwig’s School (school) constituted, inter alia, wrongful termination in violation of
public policy, breach of implied contract and breach
of promissory estoppel. The defendants appeal2 from
the decision of the trial court denying their motion to
dismiss the action on the ground that adjudication of
the plaintiff’s claims calls for impermissible judicial
interference in the internal governance of the archdiocese with respect to its selection of religious leaders.
After determining that we have subject matter jurisdiction over this interlocutory appeal pursuant to State v.
Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983), we further
conclude that, in considering whether the ministerial
exception is applicable in a particular case, a Connecticut state court must follow the standard articulated by
the United States Court of Appeals for the Second Circuit in Rweyemamu v. Cote, 520 F.3d 198, 208–209 (2d
Cir. 2008), and consider whether: (1) the employment
relationship is religious in nature; and (2) if so, whether
adjudicating the particular claims and defenses in the
case would require the court to intrude into a religious
institution’s exclusive right to decide matters pertaining
to doctrine or its internal governance or organization.
Having applied this standard to the various claims in
the plaintiff’s complaint, we reverse the judgment of
the trial court and remand the case with direction to
render judgment dismissing the complaint in its
entirety.
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
plaintiff’s last comprehensive performance evaluation,3
dated June 24, 2004, which reviewed the 2003–2004
school year, Sister Loretta Francis Mann, who was
employed as assistant superintendent of elementary
school education at the archdiocese, gave the plaintiff
a positive review, along with some written ‘‘recommendations’’ regarding specific areas of improvement. In
July, 2004, the plaintiff accepted from Bzdyra, who as
parish pastor was the plaintiff’s supervisor, a signed
contract of employment as principal for the 2004–2005
school year. On August 9, 2004, the plaintiff attended
the meeting of the school’s board of education, and
shared aloud her performance evaluation, stating that
she would make the necessary efforts to improve in
the noted areas.
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 plaintiff’s 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
plaintiff told Bzdyra that if she could not continue as
principal, she nevertheless was interested in remaining
as a teacher. Bzdyra then demanded that the plaintiff
submit to him a letter of resignation.
During that November 23, 2004 conversation, Bzdyra
referred to the plaintiff’s 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,4
he demanded that she summon the student to the office
immediately. After the student came to the office,
Bzdyra berated her to tears, requiring the plaintiff to
comfort the student before she could return to class.
Later that day, Bzdyra told the plaintiff that he would
no longer teach the religion class and that the student
had ‘‘ ‘serious problems.’ ’’ Bzdyra then ordered the
plaintiff to call the department of children and families
(department) to report the student; the plaintiff, however, refused, believing that as a mandated reporter,5
she did not have information warranting a department
referral, and that Bzdyra’s demand was simply retaliation against the student for exercising her right to make
a complaint.6
At the Sunday Mass following the November, 2004
meeting, Bzdyra asked the plaintiff about the status of
the letter of resignation that he had requested. When
she told him that she was working on it and had not
yet spoken to Mann, he became abusive and began to
yell at her. On Monday, November 29, 2004, the plaintiff
submitted a letter indicating that she was resigning as
principal effective June 30, 2005, and noting her understanding that she would receive a full-time teaching
contract for the 2005–2006 school year. On or about
November 30, 2004, the plaintiff requested a meeting
with Mann. She informed Mann about her interactions
with Bzdyra; Mann asked why she had submitted the
resignation letter. When the plaintiff stated that she had
felt forced to do so, Mann told her instead to respond
to the annual letter of intent form (form) that the archdiocese would issue in January, 2005.
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.7
The plaintiff subsequently received a letter from
Bzdyra dated March 21, 2005, informing her that her
contract of employment as principal would not be
renewed for the following school year, and that her last
day of employment would be June 30, 2005.8 On or
about June 23, 2005, the plaintiff learned that the archdiocese had relieved her from all further duties as principal. After it removed her as principal, the archdiocese
did not offer the plaintiff a teaching or administrative
position at the school or elsewhere.
The plaintiff then brought this action for money damages9 against the defendants in a six count complaint
claiming that, by not renewing her contract of employment, the archdiocese: (1) breached an implied contract, created by its formal performance evaluation
procedures; see footnote 3 of this opinion; following
Bzdyra’s refusal to engage in that process; (2) breached
its implied covenant of good faith and fair dealing; (3)
breached the doctrine of promissory estoppel; (4) terminated her employment in violation of public policy, in
retaliation for her refusal of Bzdyra’s order to make
a false report to the department; and (5) negligently
inflected emotional distress on her through its actions.
In the sixth count, the plaintiff alleged that Bzdyra had
tortiously interfered with the plaintiff’s business expectancies and relationships with the archdiocese.
Subsequently, the defendants moved to dismiss the
plaintiff’s complaint, claiming that her action is barred
under the ‘‘ ‘ministerial exception’ to judicial authority
[that] precludes a court from adjudicating employment
disputes between religious institutions and their religious leaders.’’ The trial court denied the defendants’
motion to dismiss, noting in its memorandum of decision that the Appellate Court had adopted the ministerial exception as a matter of Connecticut law in
Rweyemamu v. Commission on Human Rights &
Opportunities, 98 Conn. App. 646, 911 A.2d 319 (2006),
cert. denied, 281 Conn. 911, 916 A.2d 51, cert. denied,
552 U.S. 886, 128 S. Ct. 206, 169 L. Ed. 2d 144 (2007).
Observing that whether the plaintiff was an ordained
member of the clergy was not outcome determinative,
the trial court cited Hartwig v. Albertus Magnus College, 93 F. Sup. 2d 200, 212–13 (D. Conn. 2000), for the
proposition that even a clergy member may bring an
action against a religious employer if the particular
relationship did not give rise to claims and defenses
that are religious in nature, and that courts will resolve
such disputes if they do not require an ‘‘inquiry into
competing interpretations of church law or policy.’’ The
trial court then concluded that all of the plaintiff’s
claims ‘‘involve discrete inquiries that do not intrude
into purely religious matters or issues of church governance,’’ including her claim for wrongful termination,
which ‘‘involves a discrete pretextual inquiry into
whether . . . Bzdyra’s efforts to terminate the plaintiff’s employment as principal were motivated by or in
retaliation for the plaintiff’s refusal to ‘stick up for him’
regarding his unwanted sexual remarks to eighth grade
girls.’’10 Accordingly, the trial court denied the defendants’ motion to dismiss and subsequent motion for
reargument. This appeal followed.
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 § 52-263.11 We agree with the parties’ position at oral argument before this court12 that the trial
court’s denial of the motion to dismiss on the ground
of a colorable claim to immunity under the ministerial
exception is an appealable final judgment under the
second prong of State v. Curcio, supra, 191 Conn. 31.
‘‘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 . . . § 52263. . . . 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. . . .
‘‘The second prong of the Curcio test focuses on
the nature of the right involved. It requires the parties
seeking to appeal to establish that the trial court’s order
threatens the preservation of a right already secured
to them and that that right will be irretrievably lost
and the [parties] irreparably harmed unless they may
immediately appeal. . . . Thus, a bald assertion that
the defendant will be irreparably harmed if appellate
review is delayed until final adjudication . . . is insufficient to make an otherwise interlocutory order a final
judgment. One must make at least a colorable claim
that some recognized statutory or constitutional right
is at risk.’’ (Citations omitted; internal quotation marks
omitted.) Chadha v. Charlotte Hungerford Hospital,
272 Conn. 776, 784–86, 865 A.2d 1163 (2005).
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,
U.S. , 131
13
S. Ct. 1783, 179 L. Ed. 2d 653 (2011); Alicea-Hernandez
v. Catholic Bishop of Chicago, 320 F.3d 698, 702 (7th
Cir. 2003); Pardue v. Center City Consortium Schools
of the Archdiocese of Washington, Inc., 875 A.2d 669,
674 (D.C.), cert. denied, 546 U.S. 1003, 126 S. Ct. 619,
163 L. Ed. 2d 506 (2005); Williams v. Episcopal Diocese
of Massachusetts, 436 Mass. 574, 577 n.2, 766 N.E.2d
820 (2002); see also Friedlander v. Port Jewish Center,
588 F. Sup. 2d 428, 431 (E.D.N.Y. 2008) (declining to
consider equity-based claims because applicability of
ministerial exception deprived court of subject matter
jurisdiction under Second Circuit’s decision in Rweyemamu v. Cote, supra, 198), aff’d, 347 Fed. Appx. 654
(2d Cir. 2009), cert. denied,
U.S. , 130 S. Ct. 1714,
176 L. Ed. 2d 184 (2010); Rojas v. Roman Catholic
Diocese of Rochester, 557 F. Sup. 2d 387, 398 n.7
(W.D.N.Y. 2008) (under Second Circuit’s decision in
Cote, ‘‘motions to dismiss involving the ministerial
exception are properly addressed as challenges to the
court’s subject matter jurisdiction’’).14 Indeed, the very
act of litigating a dispute that is subject to the ministerial
exception would result in the entanglement of the civil
justice system with matters of religious policy, making
the discovery and trial process itself a first amendment
violation. See, e.g., McClure v. Salvation Army, 460 F.2d
553, 560 (5th Cir.) (‘‘[a]n application of the provisions
of Title VII [of the Civil Rights Act of 1964] to the
employment relationship which exists between . . . a
church and its minister, would involve an investigation
and review of these practices and decisions and would,
as a result, cause the [s]tate to intrude upon matters
of church administration and government which have
so many times before been proclaimed to be matters
of a singular ecclesiastical concern’’), cert. denied, 409
U.S. 896, 93 S. Ct. 132, 34 L. Ed. 2d 153 (1972).
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
omitted.) Heard v. Johnson, 810 A.2d 871, 877 (D.C.
2002). Accordingly, we conclude that we have jurisdiction under the second prong of Curcio over the defendants’ interlocutory appeal from the trial court’s denial
of their motion to dismiss based on their colorable
claim of entitlement to the ministerial exception.
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 ‘‘[r]obust’’ version of that doctrine that applies
to nonordained employees whose jobs nevertheless are
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 plaintiff’s
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 plaintiff’s common-law
tort and contract claims vis-a-vis her termination, as
well as her related claim against Bzdyra individually.
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
reinstatement, and her claims are purely secular involving leadership, strategic planning and her refusal to
make a false report to the department, and have nothing
to do with matters concerning religious belief, worship
or practice. We agree with the defendants and conclude
that, under the ministerial exception as articulated by
the Second Circuit in Cote, the trial court was required
to dismiss all of the plaintiff’s claims.
‘‘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. . . . [O]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.
In the seminal case of McClure v. Salvation Army,
supra, 460 F.2d 558, the United States Court of Appeal
for the Fifth Circuit observed that ‘‘[t]he relationship
between an organized church and its ministers is its
lifeblood.’’15 Citing a line of United States Supreme
Court decisions that ‘‘began to place matters of church
government and administration beyond the purview of
civil authorities’’;16 id., 559; the Fifth Circuit determined
that the plaintiff in McClure had ‘‘charged that The
Salvation Army engages in certain practices with regard
to a minister’s assignment, his salary, and his duties,
which have been declared unlawful by Title VII,’’ but
that ‘‘an investigation and review of such matters of
church administration and government as a minister’s
salary, his place of assignment and his duty, which
involve a person at the heart of any religious organization, could only produce by its coercive effect the very
opposite of that separation of church and [s]tate contemplated by the [f]irst [a]mendment.’’ Id., 560. Thus,
the court concluded that it lacked jurisdiction over the
plaintiff’s Title VII claims because application of that
statute ‘‘to the employment relationship existing
between . . . a church and its minister would result in
an encroachment by the [s]tate into an area of religious
freedom which it is forbidden to enter by the principles
of the free exercise clause of the [f]irst [a]mendment.’’ Id.
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.17 Indeed, in Rweyemamu v. Commission on
Human Rights & Opportunities, our Appellate Court
reviewed the contemporary federal circuit authorities,
and noted that ‘‘ ‘[t]he ministerial exception is judicial
shorthand for two conclusions: the first is that the imposition of secular standards on a church’s employment
of its ministers will burden the free exercise of religion;
the second, that the state’s interest in eliminating
employment discrimination is outweighed by a church’s
constitutional right of autonomy in its own domain.’ ’’
Rweyemamu v. Commission on Human Rights &
Opportunities, supra, 98 Conn. App. 652, quoting Equal
Employment Opportunity Commission v. Catholic
University of America, 83 F.3d 455, 467 (D.C. Cir. 1996).
The Appellate Court stated that, for purposes of the
jurisdiction of the commission on human rights and
opportunities, our state’s ‘‘administrative law . . .
must recognize the ministerial exception in the enforcement of our employment discrimination statutes. The
constitutional guarantee of the free exercise of religious
authority requires secular institutions to defer to the
decisions of religious institutions in their employment
relations with their religious employees. In broader
terms, administrative and judicial intervention in religious employment relationships would violate the constitutional prohibition against civil entanglement in
ecclesiastic disputes.’’ Rweyemamu v. Commission on
Human Rights & Opportunities, supra, 654. Thus, the
Appellate Court concluded that the ministerial exception precluded the exercise of administrative or judicial
jurisdiction over a priest’s claims of racial and ethnic
discrimination and harassment arising from the failure
of the Roman Catholic Diocese of Norwich to promote
him to an administrative post. Id., 650–51, 654–55.
In determining whether a plaintiff’s 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.’’18 Equal Employment Opportunity Commission
v. Hosanna-Tabor Evangelical Lutheran Church &
School, supra, 597 F.3d 781;19 accord Rweyemamu v.
Cote, supra, 520 F.3d 208 (‘‘courts should consider the
‘function’ of an employee, rather than his title or the
fact of his ordination’’); see also Alcazar v. Corp. of the
Catholic Archbishop of Seattle, 627 F.3d 1288, 1291 (9th
Cir. 2010) (en banc) (noting lack of ‘‘uniform general
test’’ but acknowledging that all circuits use variations
of ‘‘ ‘primary duties’ ’’ test). Thus, an employee need
not be ordained clergy to be subject to the ministerial
exception, and as ‘‘a general rule . . . is considered a
minister if the employee’s primary duties consist of
teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship.’’20 (Internal
quotation marks omitted.) Equal Employment Opportunity Commission v. Hosanna-Tabor Evangelical
Lutheran Church & School, supra, 778. Although the
question of whether an employee’s primary duties subject him to the ministerial exception generally presents
an issue of fact requiring limited discovery and the trial
court to conduct a trial type evidentiary hearing;21 see,
e.g., Conboy v. State, supra, 292 Conn. 654; it is undisputed for purposes of the present appeal that the plaintiff’s duties as a Catholic school principal render her a
ministerial employee.22 See, e.g., Pardue v. Center City
Consortium Schools of the Archdiocese of Washington,
Inc., supra, 875 A.2d 677 (describing Catholic school
principal’s ‘‘many responsibilities—some predominantly ‘secular’ and some predominantly religious,’’ as
‘‘inextricably intertwined in the school’s mission and
in the principal’s role in fulfilling it’’).
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
is surely not forbidden his day in court. The minister
struck on the head by a falling gargoyle as he is about
to enter the church may have an actionable claim.’’
(Emphasis added.) Id., 208. The court further emphasized that the ‘‘salience’’ of the establishment clause
concerns presented ‘‘where the state and church are
pitted against one another in a protracted legal battle
. . . depends upon the claim asserted by the plaintiff.
. . . For instance . . . whatever their emblemata,
some claims may inexorably entangle us in doctrinal
disputes. . . . By contrast, if a plaintiff alleges, for
instance, that his religious employer has deceived him
within the meaning of a state’s common law of fraud,
his case is less likely to run afoul of the [e]stablishment
[c]lause.’’ (Citations omitted; internal quotation marks
omitted.) Id., 208–209. Nevertheless, the court affirmed
the judgment of dismissal because the plaintiff’s complaint therein presented a simple racial discrimination
claim that would have required the court, in connection
with the standard pretext analysis applicable to such
claims as set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973),
to question the legitimacy of the church’s evaluation of
the plaintiff’s performance of his pastoral duties. See
Rweyemamu v. Cote, supra, 209.
The Third, Ninth and District of Columbia Circuit
Courts of Appeal have taken approaches similar to that
of the Second Circuit, and refrain from deciding only
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, which
the Second Circuit relied on in Rweyemamu v. Cote,
supra, 520 F.3d 208, the Third Circuit emphasized that
the ministerial exception ‘‘does not apply to all employment decisions by religious institutions, nor does it
apply to all claims by ministers. It applies only to claims
involving a religious institution’s choice as to who will
perform spiritual functions.’’ (Emphasis in original.)
Thus, the Third Circuit upheld the dismissal of a Catholic university chaplain’s claims challenging a restructuring that eliminated her position as a pretext for gender
discrimination; id., 307–308; but would have permitted
her to proceed with properly pleaded state law fraud
claims alleging misrepresentations by her employer and
state law breach of contract claims pertaining to the
terms of her specific employment contract, reasoning
that they ‘‘could be decided without wading into doctrinal waters.’’ Id., 312. Similarly, in Minker v. Baltimore
Annual Conference of United Methodist Church, supra,
894 F.2d 1360, the D.C. Circuit Court of Appeals concluded that the ministerial exception did not bar a plaintiff pastor’s breach of contract action for money
damages only because that issue ‘‘can be adduced by
a fairly direct inquiry into whether [the plaintiff’s] superintendent promised him a more suitable congregation,
whether [the plaintiff] gave consideration in exchange
for that promise, and whether such congregations
became available but were not offered to [the plaintiff].’’
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
would not contravene the [c]hurch’s doctrinal prerogatives or trench upon its protected ministerial decisions.’’
Elvig v. Calvin Presbyterian Church, supra, 964.
In contrast to this issue sensitive approach, the defendants urge us to follow the analysis followed by, inter
alia, the United States Court of Appeal 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,
742–43, 646 A.2d 152 (1994) (qualified immunity under
42 U.S.C. § 1983). This is particularly so given the existence of a circuit split, because ‘‘[d]eparture from Second Circuit precedent on issues of federal law . . .
should be constrained in order to prevent the plaintiff’s
decision to file an action in federal District Court rather
than a state court located a few blocks away from
having the bizarre consequence of being outcome determinative.’’ (Internal quotation marks omitted.) Szewczyk v. Dept. of Social Services, supra, 475 n.11.
Thus, we adopt the standard articulated by the Second Circuit in Rweyemamu v. Cote, supra, 520 F.3d
208–209,23 and conclude that, in an employment related
action against a religious institution, even if it is established that the plaintiff’s primary duties render him a
ministerial employee; see footnotes 18 through 22 of
this opinion and the accompanying text; Connecticut
courts must consider whether adjudicating the particular claims and defenses in the case would require the
court to intrude into a religious institution’s exclusive
right to decide matters pertaining to doctrine or its
internal governance or organization.24 See Barton v.
MikelHayes, United States District Court, Docket No.
09-CV-0063, 2010 U.S. Dist. LEXIS 107233, *11 (N.D.N.Y.
October 7, 2010) (The court dismissed a minister’s
claims of discrimination and retaliation because ‘‘the
[c]ourt would be forced to question the [c]hurch’s
administration in order to decide whether [the] [p]laintiff’s pastoral license was revoked due to his violation
of the United Methodist Church’s governing doctrine,
as [the] [d]efendant claims, or whether the [d]efendant’s
reasons for deciding that [the] [p]laintiff violated the
doctrine were actually ‘not only erroneous, but also
pretextual’ as [the] [p]laintiff claims. This question cannot not be answered by the [c]ourt without impermissible entanglement with the United Methodist Church’s
religious doctrine.’’); Friedlander v. Port Jewish Center, supra, 588 F. Sup. 2d 431 (declining to consider
breach of contract claim challenging termination of rabbi’s employment because ‘‘adjudicating the [p]laintiff’s
claim would . . . necessarily require the [c]ourt to
review the [p]laintiff’s performance of her rabbinical
duties’’); Rojas v. Roman Catholic Diocese of Rochester,
supra, 557 F. Sup. 2d 398–99 (denying motion to dismiss
termination claim because court could not ‘‘determine
whether the dispute is religious in nature’’ based on
state of record, and declining to dismiss hostile work
environment claim because ‘‘[the] [d]efendants do not
claim that the alleged harassment had anything to do
with the religious doctrine of the Catholic Church’’).
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 plaintiff’s
supervisor, to provide the plaintiff with an opportunity
to improve her job performance prior to terminating
her employment or not renewing her contract. Although
the plaintiff seeks only money damages, rather than
reinstatement, her claim essentially asks the court to
police the archdiocese’s compliance with its own internal procedures. Even those courts that have found justiciable other claims in connection with a ministerial
employee’s termination have held that the ministerial
exception bars claims that a religious institution failed
to follow its own procedures and bylaws in terminating
a religious employee. See Drevlow v. Lutheran Church,
Missouri Synod, 991 F.2d 468, 470–72 (8th Cir. 1993)
(declining to review claim that church failed to follow
its own bylaws by removing plaintiff from list of eligible
ministers, but permitting plaintiff to proceed with libel
claim that church told affiliates his spouse was
divorced, which was violation of church policy); Pierce
v. Iowa-Missouri Conference of Seventh-Day
Adventists, 534 N.W.2d 425, 427 (Iowa 1995) (declining
to consider minister’s claim that church failed to follow
its own procedures in failing to counsel him before
termination because that went to heart of termination
action), cert. denied, 517 U.S. 1220, 116 S. Ct. 1847, 134
L. Ed. 2d 948 (1996); Music v. United Methodist Church,
864 S.W.2d 286, 290 (Ky. 1993) (declining to consider
minister’s claim that church failed to follow counseling
and termination procedures set forth in Methodist Book
of Discipline); Callahan v. First Congregational
Church of Haverhill, 441 Mass. 699, 712–14, 808 N.E.2d
301 (2004) (applying ministerial exception to contract,
tortious interference and emotional distress claims that
‘‘[arise] not from any purported violation of the written
contract between [the pastor] and the [c]hurch, but
from the defendants’ alleged failure to follow their own
written procedures in carrying out the investigation
and disciplinary proceedings’’); cf. Minker v. Baltimore
Annual Conference of United Methodist Church, supra,
894 F.2d 1359 (applying ministerial exception to breach
of contract claim based on antidiscrimination provision
in Methodist Book of Discipline because that would
‘‘necessarily [involve] interpretation of the minister’s
occupational qualifications which requires an ‘understanding of the genuine desire to embody and carry
forth more effectively Christ’s ministry’ ’’).
Turning to the third count of the complaint, promis-
sory 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) (‘‘[p]romissory estoppel is asserted
when there is an absence of consideration to support
a contract’’). Thus, we conclude that the trial court
improperly determined that the plaintiff’s promissory
estoppel claims were not barred by the ministerial
exception.25
Turning to the fourth, fifth and sixth counts, wrongful
termination in violation of public policy, negligent infliction of emotional distress and tortious interference with
business expectancies, respectively, we conclude that
these claims are barred by the ministerial exception.
These claims arise directly from, and in furtherance of,
the defendants’ decision to terminate the employment
of the plaintiff—a ministerial employee—and requiring
the court to determine whether any proffered religious
reasons are a pretext for unlawful action would amount
to judging the employment decisions of the church.26
See Rweyemamu v. Cote, supra, 520 F.3d 208–209 (The
court dismissed a racial discrimination claim under the
ministerial exception because deciding it would have
required the court, in connection with standard pretext
analysis, to ‘‘gainsay the Congregatio Pro Clericis’ conclusion that [the plaintiff priest] is insufficiently devoted
to ministry? How are we to assess the quality of his
homilies?’’); see also Van Osdol v. Vogt, 908 P.2d 1122,
1126 n.6 (Colo. 1996) (The court noted that the plaintiff’s
‘‘claims of intentional interference with contract, interference with prospective economic advantage, and
breach of fiduciary duty all relate directly to [the
church’s] choice of a minister. . . . For a court to
determine whether the defendants impermissibly
caused [the] plaintiff damage would require the court
to examine the reasoning behind [the church’s] choice
of a minister.’’); Archdiocese of Miami, Inc. v. Minagorri, 954 So. 2d 640, 642–44 (Fla. Dist. App. 2007)
(ministerial exception requires dismissal of Catholic
school principal’s whistleblower and retaliation claims
seeking damages and reinstatement when she was terminated for complaining to archdiocese after parish
priest grabbed and threatened her), appeal dismissed,
985 So. 2d 1086 (Fla. 2008), cert. denied, U.S. , 129
S. Ct. 936, 173 L. Ed. 2d 113 (2009); Callahan v. First
Congregational Church of Haverhill, supra, 441 Mass.
712–14 (ministerial exception bars tortious interference
and emotional distress claims that arose from ‘‘defendants’ alleged failure to follow their own written procedures in carrying out the investigation and disciplinary
proceedings’’); Weishuhn v. Catholic Diocese of Lansing, 287 Mich. App. 211, 225, 787 N.W.2d 513 (‘‘We
recognize that it seems unjust that employees of religious institutions can be fired without recourse for
reporting illegal activities, particularly given that members of the clergy, as well as teachers, are mandated
reporters. . . . However, to conclude otherwise would
result in pervasive violations of [f]irst [a]mendment protections.’’ [Citation omitted.]), appeal denied, 488 Mich.
852, 787 N.W.2d 507 (2010).
The judgment is reversed and the case is remanded
with direction to render judgment dismissing the plaintiff’s complaint.
In this opinion the other justices concurred.
1
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).
2
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.
3
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.
4
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.
5
See General Statutes § 17a-101 et seq.
6
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.
7
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 plaintiff’s 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.
8
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.
9
The plaintiff sought compensatory damages, lost wages, punitive damages, attorney’s fees, costs and prejudgment interest.
10
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 plaintiff’s 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 defendant[s] 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-avis the secular common law of the state. Resolution of these claims will
not require the court to intrude into religious doctrine or practices.’’
11
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 . . . .’’
12
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.
13
See footnote 19 of this opinion.
14
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 VII,’’ 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 [c]onstitution’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
[a]mendment stands as an affirmation of the penultimacy of the state’’).
15
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 559.
16
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).
17
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
employment decision. See Equal Employment Opportunity Commission
v. Hosanna-Tabor Evangelical Lutheran Church & School, supra, 781; Rweyemamu v. Cote, supra, 208–209; Petruska v. Gannon University, supra,
311–12; Elvig v. Calvin Presbyterian Church, supra, 957; Gellington v.
Christian Methodist Episcopal Church, Inc., supra, 1304; Equal Employment Opportunity Commission v. Catholic University of America, supra,
465–67; Scharon v. St. Luke’s Episcopal Presbyterian Hospitals, supra,
362–63; Rayburn v. General Conference of Seventh-Day Adventists,
supra, 1171.
18
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. Confer-
ence 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]efendant 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).
19
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, 131 S. Ct. 1783. 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).
20
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.
21
Compare Equal Employment Opportunity Commission v. HosannaTabor 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).
22
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
denied the motion for articulation. At oral argument before this court, the
plaintiff acknowledged that, although she had argued before the trial court
that she was not a ministerial employee because her duties were primarily
secular in nature, she has not challenged the trial court’s apparent determination to the contrary in defending this appeal and, accordingly, has waived
any such claim.
23
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 [f]irst
[a]mendment 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’’).
24
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.
25
We disagree with the plaintiff’s 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 VII 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 ‘‘[b]ecause the [f]irst [a]mendment protects [the university’s] right
to restructure—regardless of its reason for doing so—we cannot consider
whether the act was unlawful or tortious,’’ but also that ‘‘the resolution of
[the chaplain’s] fraudulent misrepresentation claim does not turn on the
lawfulness of the decision to restructure, but rather upon the truth or falsity
of the assurances that she would be evaluated on her merits when she was
initially appointed as University Chaplain in July of 1999’’). Minker and
Petruska are, therefore, distinguishable from the present case because they
concerned breaches of distinctly bargained-for contractual arrangements,
and did not arise implicitly from the religious institutions’ internal operating
rules. Cf. Callahan v. First Congregational Church of Haverhill, supra,
441 Mass. 712–14 (noting distinction between religious institution’s specific
written contractual obligations and failure to follow generally applicable
disciplinary procedures); Mundie v. Christ United Church of Christ, 987
A.2d 794, 797, 801 (Pa. Super. 2009) (pastor’s breach of contract claim
seeking only money damages for breach of retirement and compensation
contract clauses not subject to ministerial exception because ‘‘this case
initially turns upon whether a contract existed at all and not the predicate
for the termination; an issue that requires no doctrinal exegesis’’), appeal
denied, 14 A.3d 829 (Pa. 2010).
26
Moreover, the plaintiff’s 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.’’).
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