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19-P-213 Appeals Court
ALESSENDRINIA MENARD vs. ARCHDIOCESE OF BOSTON.1
No. 19-P-213.
Norfolk. April 9, 2020. - July 29, 2020.
Present: Milkey, Shin, & Englander, JJ.
Anti-Discrimination Law, Age, Sex. Employment, Discrimination.
Constitutional Law, Establishment of religion, Freedom of
religion. Religion. Church. Jurisdiction, Ecclesiastical
controversy. Practice, Civil, Motion to dismiss.
Civil action commenced in the Superior Court Department on
February 29, 2016.
A motion to dismiss was heard by Thomas A. Connors, J.
The case was submitted on briefs.
Edward J. McCormick, III, for the plaintiff.
Geoffrey P. Wermuth for the defendant.
MILKEY, J. Plaintiff Alessendrinia Menard served as the
director of music ministries at Saint Mary's Parish in Franklin
1 Also known as Massachusetts Catholic Self-Insurance Group,
Inc.
2
(parish) for eighteen years. A month before leaving her
position, Menard filed a complaint with the Massachusetts
Commission Against Discrimination (MCAD), alleging that the
pastor at her parish had subjected her to age and gender based
harassment and discrimination and had retaliated against her
when she alerted defendant Archdiocese of Boston (Archdiocese).
After MCAD issued a lack of probable cause finding in 2016,
Menard brought the present action. She now appeals from a
judgment entered in the Superior Court dismissing her claim
under the so-called "ministerial exception." We affirm.
Background. 1. MCAD filing and ruling. On February 19,
2013, Menard filed a complaint with MCAD against Reverend Brian
Manning and the Archdiocese. On the MCAD's preprinted, one-page
form, Menard checked the boxes for "SEX," "RETALIATION," and
"AGE" as the "CAUSE[S] OF DISCRIMINATION" and provided the
following explanation:
"Mrs. Menard has been subjected to harassment in the
workplace at St. Mary's Church in Franklin where she has
been the music director for years. Comments about her age
and attitude against women have been ongoing since the
arrival of Rev. Manning. After she complained to the
Archdiocese more blatant and discriminatory conduct took
place."
Reverend Manning and the Archdiocese vigorously denied Menard's
allegations and filed a joint position statement. The statement
raised several arguments, including that Menard's claim was
barred by the ministerial exception based on Menard's job duties
3
as director of music ministries. Menard did not file a rebuttal
or at any time supplement her original filing with additional
information. In February 2016, the MCAD concluded that it
lacked jurisdiction due to the First Amendment interests
implicated by Menard's undisputed job duties, and noted, in any
event, that she had failed to establish a prima facie claim of
discrimination.
2. The Superior Court complaint. The three-page complaint
that Menard filed against the Archdiocese included a single
count for "gender and age discrimination in the workplace,
harassment and a hostile work environment."2 The allegations
included there were similar to those set forth in her
administrative complaint, with only slightly more detail. She
alleged that she began serving as the director of music
ministries at the parish in 1995, and that when Reverend Manning
arrived there in 2009, she "began being subjected to harassment
. . . , including comments made about her age and attitude
against women." According to Menard, she was "unaware of any
complaints regarding the performance of her duties" prior to
Reverend Manning's arrival. Menard further alleged that when
she notified the Archdiocese, she was retaliated against with
2 Menard's complaint also made a passing reference to racial
discrimination. However, a subsequent filing clarified that she
was not, in fact, raising a race-based discrimination claim.
4
further harassment, although the complaint does not specify
whether such acts were at the hands of Reverend Manning or other
members of the Archdiocese.
3. Additional material filed. The Archdiocese filed a
motion to dismiss based on several grounds, including that
Menard's claim was barred by the ministerial exception.
Appended to that motion were several documents, including two
that related to Menard's job responsibilities. One was Menard's
employment contract, which she and the then-presiding pastor
signed in 1995. That contract outlined Menard's duties as
follows:
"a) To plan and co-ordinate all music for all Parish
Liturgical Celebrations
"b) To provide and lead music at four weekend Liturgies
"c) To teach and conduct choir(s); Adult Choir, Children's
Choir, Contemporary Choir and Teen (Youth) Choir, as
interest prevails
"d) To train Cantors, organize their Mass schedule
"e) To provide music for Sacraments; First Communion and
Confirmation; provide music for Communal Reconciliation
Services (Advent and Lent)
"f) To provide music for Holy Days occur[r]ing on a
weekday; i.e. Thanksgiving, Christmas, Ash Wednesday, etc.
"g) To provide music for all Wedding and Funeral Liturgies,
at additional stipends
"h) Care and responsibility of all Parish Instruments,
including deciding who is capable of substitution and
5
playing of instruments."
The other document that related to Menard's job
responsibilities was an article that Menard authored for the
parish newsletter describing her work. In it, she explained
that "[m]usic choices for [Mass] Liturgies are carefully and
prayerfully chosen to correspond with the readings from the
Lectionary and the prayers from the Roman Missal." Menard wrote
that the "goal" of these choices "is to form reinforcement of
the Holy Scriptures so that we may better understand them, and
to encourage full and active participation of the assembly."3
4. Superior court ruling. In ruling on the Archdiocese's
motion to dismiss, the judge noted that "[w]hile this matter is
a Rule l2(b)(6) motion to dismiss, both parties have filed
numerous exhibits relating to the parties' relationship . . . .
The court considers these materials in resolution of this motion
as their authenticity plainly is undisputed." Passing over
several other arguments that the Archdiocese raised, the judge
concluded that the ministerial exception barred Menard's claim,
3 Menard herself included a copy of her letter of
resignation with her opposition to the Archdiocese's motion to
dismiss. That letter alleged that Reverend Manning's conduct
forced her to seek medical treatment. The letter also refers to
a series of e-mails from Reverend Manning that Menard
characterized as "demeaning and spiteful" and an attack on her
"credibility, integrity, job performance and . . . musical
ability." Menard did not mention that the e-mails contained any
comments related to age or gender.
6
and he allowed the Archdiocese's motion to dismiss.
Discussion. 1. Reliance on documents outside of the
complaint. Menard argues that in allowing the Archdiocese's
motion to dismiss, the judge improperly strayed beyond the
allegations of the complaint to examine documentary material
that the Archdiocese submitted. This argument requires little
discussion. The Archdiocese submitted the two key documents at
issue -- Menard's contract and her article -- not to contradict
any allegations of the complaint, but to bring to the court's
attention uncontested material that supported an affirmative
defense. Menard signed one of the documents and wrote the
other, and their authenticity was not in doubt. She raised no
claim to the judge that she contested the documents, that it
would be improper for him to rely on them, or that she needed
more time to respond. Under these circumstances, regardless of
whether the judge properly considered the documents on a motion
to dismiss, Menard cannot demonstrate that her "substantial
rights" were "injuriously affected." G. L. c. 231, § 119.
2. Ministerial exception. The First Amendment to the
United States Constitution guarantees individuals the right to
the free exercise of religion and prohibits the establishment of
religion by the Federal government. The ministerial exception
doctrine developed to protect those rights. As the United
States Supreme Court has explained, "Since the passage of Title
7
VII of the Civil Rights Act of 1964 . . . , and other employment
discrimination laws, the Courts of Appeals have uniformly
recognized the existence of a 'ministerial exception,' grounded
in the First Amendment, that precludes application of such
legislation to claims concerning the employment relationship
between a religious institution and its ministers." Hosanna-
Tabor Evangelical Lutheran Church & Sch. v. Equal Employment
Opportunity Comm'n, 565 U.S. 171, 188 (2012) (Hosanna-Tabor).
The ministerial exception serves to prevent courts from
"interfer[ing] with the internal governance of the church, [and]
depriving the church of control over the selection of those who
will personify its beliefs." Id.
In Williams v. Episcopal Diocese of Mass., 436 Mass. 574,
583 (2002), the Supreme Judicial Court recognized that the
doctrine applied to discrimination claims raised under G. L. c.
151B.4 Williams concerned an employment discrimination action
initiated by an Episcopal priest. Id. at 574-575. The court
held that where there is a "conflict between the legislative
mandate of G. L. c. 151B to eliminate discrimination in the
workplace and our constitutional mandate to preserve the
4 The United States Supreme Court subsequently recognized
the exception and clarified that it was an affirmative defense,
rather than a jurisdictional bar. Hosanna-Tabor, 565 U.S. at
188, 195 n.4 (partially abrogating Williams on this point).
8
separation of church and State, the constitutional directive
must prevail." Id. at 583. The Supreme Judicial Court
revisited the ministerial exception in Temple Emanuel of Newton
v. Massachusetts Comm'n Against Discrimination, 463 Mass. 472,
486-487 (2012), wherein the exception served to bar an
employment discrimination claim raised by a teacher at a
religious school.
The issue before us is whether the ministerial exception
applies to Menard's position as director of music ministries.
Menard argues that the exception should not bar her claim, as
she "is not a minster, rabbi, priest, deacon or any person who
deals with doctrine, canon law, discipline or any ministerial
relationships." However, the Supreme Court was clear in
Hosanna-Tabor that "the ministerial exception is not limited to
the head of a religious congregation." 565 U.S. at 191.
Resisting a "rigid formula," id. at 190, for determining whether
or not a job is covered under the ministerial exception, the
Court in Hosanna-Tabor opted instead for a fact-intensive
inquiry that considered multiple factors, including the
employee's title, her training, her job duties, and her "role in
conveying the Church's message and carrying out its mission."
Id. at 192.5
5 The Supreme Court recently reaffirmed its ruling in
Hosanna-Tabor in a pair of cases involving two Roman Catholic
9
Since Hosanna-Tabor, several courts have had occasion to
apply this analysis to individuals involved in the direction and
playing of music for the Roman Catholic Church and other
religious organizations. One of the first cases to apply
Hosanna-Tabor was Cannata v. Catholic Diocese of Austin, 700
F.3d 169 (5th Cir. 2012). In Cannata, the plaintiff, a music
director, played music during services and assisted with
administrative tasks, but had none of the "liturgical
responsibilities belonging to [his] predecessor . . . because
[he] lacked the requisite education, training, and experience."
Id. 170-171. The plaintiff there argued that "he merely played
the piano at Mass and that his only responsibilities were
keeping the books, running the sound system, and doing custodial
work," id. at 177, and that "he was not ordained and he did not
conduct Mass, deliver a sermon, or write the music or lyrics for
the ceremony." Id. at 178. Finding "undisputed evidence . . .
that music is an integral part of the celebration of Mass," id.,
the court held that there was enough for the ministerial
elementary teachers who had sought clarification on the contours
of the multiple-factor inquiry laid out in Hosanna-Tabor. See
Our Lady of Guadalupe Sch. v. Morrissey-Berru, U.S. Supreme Ct.,
Nos. 19-267 & 19-348 (July 8, 2020). In applying the
ministerial exception to both cases, the Court reemphasized the
lack of a rigid test, writing that "the circumstances . . .
found relevant in [Hosanna-Tabor]" should not be treated as
"checklist items to be assessed and weighed against each other
in every case." Id., slip op. at 22. Instead, courts should
"take all relevant circumstances into account." Id.
10
exception to bar the plaintiff's claims where there was "no
genuine dispute that . . . by playing the piano during services,
[the plaintiff] furthered the mission of the church and helped
convey its message to the congregants." Id. at 177.
More recently, in Sterlinski v. Catholic Bishop of Chicago,
934 F.3d 568, 569, 572 (7th Cir. 2019), the Seventh Circuit
Court of Appeals applied the ministerial exception to a
plaintiff who had been the musical director, but was demoted to
an organ player before being fired. The plaintiff argued that
in his role as organist, he "robotically play[ed] the music that
he was given." Id. at 569. In ruling that the ministerial
exception nevertheless applied, the court noted that "[i]f the
Roman Catholic Church believes that organ music is vital to its
religious services, and that to advance its faith it needs the
ability to select organists, who are we judges to disagree?"
Id. 570. All other cases involving music directors in the
Catholic Church appear to be to the same effect. See Tomic v.
Catholic Diocese of Peoria, 442 F.3d 1036 (7th Cir. 2006)
(director of music subject to ministerial exception); Equal
Employment Opportunity Comm'n v. Roman Catholic Diocese of
Raleigh, 213 F.3d 795 (4th Cir. 2000) (same). See also Curl v.
Beltsville Adventist Sch., U.S. Dist. Ct., No. 15-3133 (D. Md.
Aug. 15, 2016) (music teacher in Seventh Day Adventist school
subject to ministerial exception).
11
In this case, Menard's job duties place her squarely within
the ministerial exception. As implied by her title, director of
music ministries, Menard's role was a substantive one. She
selected and played music at all parish events, taught and
conducted multiple choirs, trained the church's cantors, and
organized the cantors' schedule for Mass. Far more than the
rote playing of an instrument, which the court in Sterlinski
found sufficient, Menard's job required her to thoughtfully
select the music for each event and train others to perform it.
Menard conveyed this in her own words in an article that she
wrote for the parish newspaper. As noted, Menard herself
explained there that "[m]usic choices for [Mass] Liturgies are
carefully and prayerfully chosen . . . to encourage full and
active participation of the assembly." While the record is
silent as to Menard's training prior to her being hired, her job
duties presuppose a significant knowledge of her faith's musical
canon, and the ability to transmit that knowledge and "convey[]
the Church's message" to the members of St. Mary's Parish
several times a week. Hosanna-Tabor, 565 U.S. at 192. "What
matters, at bottom, is what an employee does." Our Lady of
Guadalupe Sch. v. Morrissey-Berru, U.S. Supreme Ct., Nos. 19-267
& 19-348, slip op. at 18 (July 8, 2020). As with elementary
school teachers at a religious school, Menard's duties of
"educating young people in their faith, inculcating its
12
teachings, and training them to live their faith are
responsibilities that lie at the very core of the mission of
[her parish]." Id.
Because we conclude that the ministerial exception applies
to Menard's position, she is unable plausibly to demonstrate an
entitlement to relief on her employment discrimination claim.6
Her claim was properly dismissed pursuant to Mass. R. Civ. P. 12
(b) (6).
Conclusion. We affirm the judgment dismissing Menard's
claim.
So ordered.
6 Menard suggests that her complaint alleges harassment, not
just discrimination, and that such claims would not be barred by
the ministerial exception. In Williams, 436 Mass. at 582-583,
the Supreme Judicial Court acknowledged but did not reach the
question of "whether the First Amendment provides a complete
barrier to a minister's complaints of conduct by church
superiors that properly could be characterized as sexual
harassment in the context of an employment discrimination
claim." As in Williams, we need not pass on the viability of
such an argument, because any allegations of harassment included
in Menard's complaint are so threadbare that they are
dismissible for failing to state a claim on which relief could
be granted. See Iannacchino v. Ford Motor Co., 451 Mass. 623,
636 (2008) (complaints must do more than rest on conclusory
allegations and must plausibly suggest an entitlement to
relief). See also Temple Emanuel of Newton, 463 Mass. at 487
n.10.