Filed 4/28/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
FRANCES ATKINS, B314220
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCV02947)
v.
ST. CECILIA CATHOLIC SCHOOL,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Robert S. Draper, Judge. Reversed and
remanded with directions.
Eisenberg & Associates, Michael B. Eisenberg, Daniel
Nomanim; and Joseph S. Socher for Plaintiff and Appellant.
Gordon Rees Scully Mansukhani, Debra E. Meppen,
Anthony J. Bellone and Christopher R. Wagner for Defendant
and Respondent.
_________________________________
INTRODUCTION
Appellant Frances Atkins was a long-term employee of
respondent St. Cecilia Catholic School. In her final year of
employment, Atkins worked part-time as an art teacher and
office administrator. Following her discharge, Atkins filed this
action against St. Cecilia for age discrimination in violation of the
California Fair Employment and Housing Act (FEHA; Gov. Code,
§ 12900 et seq.) The trial court granted St. Cecilia’s motion for
summary judgment on the ground that Atkins’s suit was barred
by the ministerial exception, a constitutional doctrine that
precludes certain employment claims brought against a religious
institution by its ministers. We conclude there are triable issues
of material fact as to whether the ministerial exception applies in
this case. We therefore reverse the judgment in favor of
St. Cecilia and remand for further proceedings consistent with
this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
I. St. Cecilia’s philosophy and mission
St. Cecilia is a Catholic elementary school within the
Archdiocese of Los Angeles (ADLA). The mission of the ADLA
“encompasses the belief of continuing the redemptive work of
Jesus Christ, living and proclaiming the gospel, and being
faithful stewards of God’s creation.” The ADLA’s mission also
involves “carry[ing] the message of [the Catholic] faith and the
Gospel . . . to those who are waiting to hear God’s word in the
workplaces and parishes.” The ADLA dedicates its parish
communities and schools to fulfilling this mission.
St. Cecilia offers a faith-based education to students from
transitional kindergarten through eighth grade. The school’s
philosophy “is centered in the Gospel teaching of Jesus Christ[,]
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integrating the Gospel message in its curriculum to provide
students with an opportunity [to] experience a Catholic Faith
Community.” In accordance with this philosophy, St. Cecilia’s
mission provides: “ ‘Accepting the call to teach as Jesus taught,
we offer a quality Catholic education in a secure, stable, and
nurturing faith community that affirms the uniqueness and
dignity of each student and encourages all to live the Gospel
message of Jesus Christ.’ ”
II. Atkins’s employment with St. Cecilia
Atkins was employed by St. Cecilia for approximately
40 years from 1978 to 2018. When she first started at the school,
Atkins worked as a part-time secretary or office administrator.
Her job duties included answering phones, filing, photocopying,
maintaining student records, processing student registrations,
communicating with parents, and doing “[w]hatever [was] needed
to make the office run smoothly.” Atkins occupied this role until
her employment was terminated at the end of the 2017 to 2018
academic year.
In 1999, Atkins began working as a part-time art teacher at
the school in addition to performing her office administration
duties. In this role, Atkins taught studio art and art history to
students from kindergarten through eighth grade. She also
would serve as a substitute teacher in other subjects from time to
time. Throughout her tenure at St. Cecilia, Atkins was the
school’s only art teacher.
In 2012, Atkins completed and signed a job application for
a “non-teaching staff” position at St. Cecilia. According to Atkins,
the application was for a position as an office manager or
administrator. In the application, Atkins checked a box
indicating that she was “willing to maintain, by word and actions,
3
a position of role model and witness to the Gospel of Christ that
is in conformity with the teachings, standards, doctrines, laws,
and norms of the Roman Catholic Church as interpreted by the
[ADLA].” In connection with the application, Atkins also signed a
three-page job description. In addition to setting forth a number
of non-religious, secretarial-related duties, the job description
stated that the position required “[o]ne who actively supports and
is expected to conduct themselves in accordance with the
philosophy and mission of the Church/School while performing
their work.” 1
During her final year of employment, Atkins worked part-
time at St. Cecilia three days a week as an office administrator
and an art teacher. Her work hours were Mondays from 7:30
a.m. to 11:30 a.m., Wednesdays from 7:30 a.m. to 4:30 p.m., and
Fridays from 11:30 a.m. to 3:30 p.m. Atkins taught art on
Mondays and worked in the office on Fridays. She performed
both roles on Wednesdays, teaching art from 7:30 a.m. to 2:00
p.m., and then working in the office until 4:30 p.m. While Atkins
was identified as an art teacher in the budget for the 2017 to
2018 academic year, her job title on the school’s website was
listed as office secretary and never changed.
Atkins was familiar with the ADLA’s Administrative
Handbook, including its policy pertaining to “catechesis.”
According to that handbook, the “overall philosophy” of the ADLA
is centered on “catechesis,” which “is accomplished by varied,
interconnected tasks that are inspired by Jesus’[s] example in
1 The record does not disclose why Atkins applied for an
office administration position in 2012 when she had already been
working in this role at St. Cecilia for a number of years.
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forming his disciples.” The six tasks of catechesis are to:
(1) “Promote knowledge of the faith,” (2) “Promote knowledge of
the meaning of the liturgy and sacraments,” (3) “Promote moral
formation in Jesus Christ,” (4) “Teach the Christian how to pray
with Christ,” (5) “Prepare the Christian to live in community and
to participate actively in the life and mission of the church,” and
(6) “Promote a missionary spirit that prepares the faithful to be
present as Christians in society.” The handbook provides that
these tasks “are imparted through individual relationships, the
community of faith, the liturgy, instruction, experiential
learning, ritual, prayer, and outreach to the global community.”
At her deposition, Atkins was shown a copy of the tasks of
catechesis as set forth in the ADLA’s Administrative Handbook,
and was asked if she understood that she was to perform her job
duties at St. Cecilia in a manner consistent with these tasks. In
response, Atkins testified: “Whatever the subject was that I was
either substituting or I was teaching with visual art is what . . .
how I would teach. [¶] At the schools that I worked at, we also
had religion, which was taught by a separate teacher, so it would
cover all of these things. [¶] And, basically, I would make sure or
promote the understanding of these when we are in the class.
[¶] . . . I didn’t teach [this] doctrine because they were getting it
already when they had their religion class. I just made sure it
was upheld that they did Christ-like things whatever they
needed to be done. If their behavior was not Christ-like, I would
say it’s not Christ-like.”
Atkins also understood that, as a Catholic school,
“St. Cecilia was promoting and developing the Catholic faith.”
When asked if she incorporated any sort of Catholic faith into her
curriculum as an art teacher, Atkins answered: “We practiced
5
[the] Catholic faith every day we came into the class.”
Referencing the six tasks of catechesis in the ADLA’s
Administrative Handbook, Atkins then elaborated: “That
mean[s], they would be Christ-like. If you read your document
over here, where it says handbook, the things we had to do,
acknowledging their faith, we prayed. Promote the meaning of
the liturgy and the sacraments, that was taught in Religion. [¶]
But if there was something we were doing in the class, we would
talk about that and go over the information that was received
from the Religion class. Perform moral formation in Jesus
Christ, talked always about Jesus is the way to go. Jesus.
Follow him, don’t follow man. Prepare the Christian to live in the
community to participa[te] actively in the life and the mission of
the church. [¶] Christ is first. You[’re] going to live your life
Christ-like. You’re going to have here . . . in the community,
which means to give back. Don’t just be selfish and keep
everything for yourself. Help others, even if you didn’t do it, and
you see something needs to be done, like the commercial, help the
little lady across the street. That was being taught in the class.”
In describing her job duties as an art teacher, Atkins stated
that the students “would learn about artists” and “the language
of art.” They then would create different art projects based on
their study of different artists, and “come up with their own
interpretation of subjects such as Kandinsky.” With respect to
religious-themed projects, the students would make Christmas
holiday cards to give to their parents. Although the cards
included art depicting the nativity scene, Atkins did not teach the
students about the religious aspects of the nativity scene or
Christmas. When asked if she included any religious
methodology in her teaching, Atkins replied: “If we were talking
6
about an artist that had information about methodology for
religion, yes.” According to Atkins, however, “[t]his was not
limited to any particular religion, but rather focused on how
religion might have affected a particular artist’s work.”
Atkins maintained certain Catholic symbols on the walls of
her classroom at St. Cecilia, including a crucifix and a poster that
advised students “to live Christ-like” and according to “Christian
morals.” These religious symbols had been placed in the
classroom by school administration. Atkins did not incorporate
prayer into her teaching. She testified, however, that if she had
students in her art class for the last period of the day, “we would
ask for traveling mercies from Jesus so that they could get home
safely.” She also explained that, while she did not conduct a
daily prayer with her students, “we would pray, read an Our
Father or Hail Mary” if she had a class at the end of the day
because the students would not be returning to class but rather
going home.
Atkins does not consider herself to be Catholic. Instead,
she identifies as a nondenominational Christian. She does not
have any formal religious education, and she was not required to
take any religious courses as part of her employment at
St. Cecilia. In her role as both an office administrator and an art
teacher at the school, Atkins did not teach or preach Catholicism
or the Gospel. She was not expected to instruct students about
Jesus or the Bible, or to attend any prayer services. Although
Atkins would pray of her own accord in her daily life, her decision
to do so was unrelated to her job duties at St. Cecilia.
III. Atkins’s termination of employment
In 2017, about a year before Atkins was discharged, Azarel
Moreno was hired to work in the office as a secretary. Moreno
7
was younger than Atkins, and Atkins helped train her for the
position. Norma Guzman, who was St. Cecilia’s principal at the
time, made the hiring decision. According to Guzman, when she
hired Moreno, Atkins was listed in the budget as an art teacher.
If, however, there had not been room in the budget for an art
teacher, Guzman still would have retained Atkins and returned
her to the same office duties and work schedule that she had
before.
In the summer of 2018, Patrick Kelly became St. Cecilia’s
new principal. Kelly had been told that Atkins previously was
the school’s secretary, but had transitioned out of that position
and was currently the fine arts teacher. Shortly after joining
St. Cecilia, Kelly met with Atkins to discuss her position and
availability for the upcoming school year. According to Atkins,
she told Kelly that she taught art and also worked in office
administration. At one point during the meeting, Kelly
commented to Atkins, “You need to slow down. You’re doing too
much.”
About a week after the meeting, Kelly decided that
St. Cecilia could no longer afford a fine arts teacher, and that the
position should be eliminated. In making the decision to
eliminate Atkins’s teaching position, Kelly did not offer her the
opportunity to continue working at the school in an office
administration position. Instead, Kelly decided not to have
Atkins return to St. Cecilia in any capacity for the 2018 to 2019
academic year. Following Atkins’s discharge, Moreno took over
all of the office administration duties that Atkins had performed
for the school.
8
IV. Atkins’s lawsuit against St. Cecilia
On January 28, 2019, Atkins filed this action against
St. Cecilia and the Roman Catholic Archbishop of Los Angeles,
alleging causes of action for age discrimination in violation of
FEHA, and failure to provide personnel records in violation of
Labor Code sections 226 and 1198.5. Atkins later dismissed the
Archbishop of Los Angeles as a named defendant, and dismissed
the cause of action for violation of the Labor Code. The gravamen
of Atkins’s complaint was that St. Cecilia discharged her because
of her age and replaced her with a significantly younger and less
experienced employee. On May 1, 2019, St. Cecilia filed an
answer to the operative complaint, but did not assert the
ministerial exception as an affirmative defense in its answer.
The case originally was set for trial in May 2020. In March
2020, the parties stipulated to continue the trial date and the
discovery cutoff dates due to the COVID-19 pandemic. The
parties did not, however, agree to extend the deadline for filing a
motion for summary judgment, which had already passed. On
March 18, 2020, the trial court approved this stipulation and
continued the trial to September 2020. In July 2020, the parties
again stipulated to continue the trial date, but not to extend the
discovery cutoff dates subject to certain limited exceptions. On
July 22, 2020, the trial court approved this second stipulation
and continued the trial to June 2021.
On November 13, 2020, St. Cecilia filed a motion to set
aside the March 18, 2020 scheduling order so that it could file a
motion for summary judgment. St. Cecilia argued that, due to a
recent change in decisional law, it now had grounds to seek
summary judgment based on the ministerial exception. Atkins
opposed the motion to set aside on several grounds, including
9
that the parties explicitly had agreed in their prior stipulation
not to extend the summary judgment deadline, and that the
ministerial exception did not apply to Atkins as a former secular
employee of the school. Atkins also asserted that if St. Cecilia
were permitted to file a summary judgment motion based on the
ministerial exception, Atkins should be allowed to take further
depositions at the school’s expense. At a hearing on the matter,
the trial court granted the motion to set aside the scheduling
order, thereby allowing St. Cecilia to move for summary
judgment.
St. Cecilia filed its motion for summary judgment on
January 13, 2021. St. Cecilia argued that Atkins’s claim for age
discrimination was barred by the ministerial exception because
the undisputed evidence showed that, in Atkins’s role as an art
teacher, the school entrusted her with the responsibility of
educating and forming its students in the Catholic faith.
St. Cecilia supported its motion with, among other evidence,
excerpts and exhibits from Atkins’s deposition describing her job
position and duties at the school. St. Cecilia also submitted
declarations from Kelly, the school’s current principal, and
Anthony Galla, the ADLA’s deputy superintendent of elementary
schools, regarding the religious mission of St. Cecilia and the
ADLA.
Atkins opposed the motion for summary judgment on two
grounds. She contended that St. Cecilia had waived the
ministerial exception by failing to plead it as an affirmative
defense in its answer. She further argued that, even if not
waived, the ministerial exception did not apply to her former
position as an office administrator and art teacher. As
supporting evidence, Atkins submitted her own sworn declaration
10
in which she stated that she was not Catholic, and that
nonreligion teachers at St. Cecilia were not required to be
Catholic or to teach students about the Catholic faith. Atkins
also asserted that, in her role as the school’s art teacher, she did
not teach religion or Catholicism to the students, did not lead the
students in prayer or incorporate prayer into her teaching, and
did not personally place any Catholic symbols inside her
classroom.
On April 29, 2021, the trial court granted St. Cecilia’s
motion for summary judgment. In its written ruling, the court
also sustained all but one of St. Cecilia’s evidentiary objections to
Atkins’s opposing declaration. Focusing on Atkins’s deposition
testimony describing how she applied the ADLA’s tasks of
catechesis in her art class, the court found that “St. Cecilia has
presented extensive evidence that Atkins has performed various
duties within her employment at St. Cecilia that qualifies her for
the ministerial exception.” The court further explained that
“St. Cecilia’s evidence, particularly Atkins’[s] own deposition,
supports a finding that Atkins’[s] role at St. Cecilia included
‘perform[ing] vital religious duties, such as educating [the]
students in the Catholic faith and guiding [the] students to live
their lives in accordance with that faith’ and in accordance with
the religious tenants of the school.”
On May 24, 2021, the trial court entered judgment in favor
of St. Cecilia. Following the entry of judgment, Atkins filed a
timely notice of appeal.
DISCUSSION
On appeal, Atkins contends that the trial court erred in
granting summary judgment to St. Cecilia on the basis of the
ministerial exception. She specifically asserts that St. Cecilia
11
waived the exception by failing to raise it as an affirmative
defense in its answer. Atkins also argues that she was not
subject to the exception based on her secular job duties as an
office administrator and an art teacher. We conclude that
St. Cecilia did not waive the ministerial exception as a defense;
however, the school was not entitled to summary judgment
because there are triable issues of material fact as to whether the
ministerial exception applies to Atkins’s former job position.
I. Standard of Review
The party moving for summary judgment bears the burden
of persuasion that there is no triable issue of material fact, and
that the moving party is entitled to judgment as a matter of law.
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
Where summary judgment is granted, we review the trial court’s
ruling de novo. (Gonzalez v. Mathis (2021) 12 Cal.5th 29, 39.)
We consider all the evidence that was presented by the parties
in connection with the motion (except that which the trial court
properly excluded) and all the uncontradicted inferences that the
evidence reasonably supports. (Merrill v. Navegar, Inc. (2001)
26 Cal.4th 465, 476.) In conducting our de novo review, we
liberally construe the evidence in support of the party opposing
summary judgment, and we resolve any doubts concerning the
evidence in favor of that party. (Yanowitz v. L’Oreal USA, Inc.
(2005) 36 Cal.4th 1028, 1037.) We affirm summary judgment
only where it is shown that no triable issue of material fact exists
and the moving party is entitled to judgment as a matter of law.
(Code Civ. Proc., § 437c, subd. (c).)
II. The Ministerial Exception
The First Amendment provides, in part, that “Congress
shall make no law respecting an establishment of religion, or
12
prohibiting the free exercise thereof.” (U.S. Const., 1st Amend.)
The ministerial exception, which is grounded in the religion
clauses of the First Amendment, operates to preclude application
of employment discrimination laws to certain claims arising out
of the employment relationship between a religious institution
and its ministers. (Hosanna-Tabor Evangelical Lutheran Church
and School v. EEOC (2012) 565 U.S. 171, 188 (Hosanna-Tabor).)
Under this rule, “courts are bound to stay out of employment
disputes involving those holding certain important positions with
churches and other religious institutions.” (Our Lady of
Guadalupe School v. Morrissey-Berru (2020) ___ U.S. ___ [140
S.Ct. 2049, 2060] (Our Lady of Guadalupe).) As stated by the
United States Supreme Court, the rationale for the exception is
that “members of a religious group put their faith in the hands of
their ministers,” and thus, “[r]equiring a church to accept or
retain an unwanted minister, or punishing a church for failing to
do so . . . depriv[es] the church of control over the selection of
those who will personify its beliefs.” (Hosanna-Tabor, at p. 188.)
The Supreme Court first endorsed the ministerial exception
in Hosanna-Tabor, supra, 565 U.S. at page 188. In that case, the
Equal Employment Opportunity Commission (EEOC) brought an
action on behalf of a fourth-grade teacher, Cheryl Perich, against
her former employer, an Evangelical Lutheran school, alleging
that Perich had been fired in retaliation for threatening to file
suit under the Americans with Disabilities Act of 1990 (42 U.S.C.
§ 12101 et seq.). (Hosanna-Tabor, at pp. 179–180.) At the time of
her discharge, Perich was known as a “called,” as opposed to a
“lay,” teacher. (Id. at p. 178.) “ ‘Called’ teachers are regarded as
having been called to their vocation by God through a
congregation.” (Id. at p. 177.) To be eligible to receive a call from
13
her congregation, Perich was required to complete extensive
coursework in theological study, to obtain the endorsement of the
local Synod district, and to pass an oral examination by a faculty
committee. (Ibid.) Once called, Perich received the formal title
“ ‘Minister of Religion, Commissioned,’ ” and could be removed
only for cause and by a supermajority of her congregation. (Ibid.)
The Supreme Court held that the employment action filed
on behalf of Perich was barred by the ministerial exception.
(Hosanna-Tabor, supra, 565 U.S. at p. 196.) In recognizing the
existence of the ministerial exception, the court declined “to adopt
a rigid formula for deciding when an employee qualifies as a
minister.” (Id. at p. 190.) Rather, the court identified four
circumstances as being relevant in that case. (Id. at p. 192.)
First, the school “held Perich out as a minister, with a role
distinct from that of most of its members.” (Hosanna-Tabor,
supra, 565 U.S. at p. 191.) When the school “extended [Perich] a
call, it issued her a ‘diploma of vocation’ according her the title
‘Minister of Religion, Commissioned.’ ” (Ibid.) “In a supplement
to the diploma, the congregation undertook to periodically review
Perich’s ‘skills of ministry’ and ‘ministerial responsibilities,’ and
to provide for her ‘continuing education as a professional person
in the ministry of the Gospel.’ ” (Ibid.)
Second, Perich’s title of minister “reflected a significant
degree of religious training followed by a formal process of
commissioning.” (Hosanna-Tabor, supra, 565 U.S. at p. 191.)
Over the course of six years, she completed eight college-level
courses in religious subjects, obtained the endorsement of her
local Synod district, and passed an oral examination given by a
faculty committee at a Lutheran college. (Ibid.) After fulfilling
these requirements, she was commissioned as a minister “only
14
upon election by the congregation, which recognized God’s call to
her to teach.” (Ibid.)
Third, Perich held herself out as a minister “by accepting
the formal call to religious service,” and by claiming a special
housing allowance on her taxes available only to employees who
earned their compensation “ ‘ “in the exercise of the ministry.” ’ ”
(Hosanna-Tabor, supra, 565 U.S. at pp. 191–192.)
Fourth, Perich’s job duties “reflected a role in conveying the
Church’s message and carrying out its mission.” (Hosanna-
Tabor, supra, 565 U.S. at p. 192.) Perich taught religion to her
students four days per week, and led them in prayer three times
per day. (Ibid.) Once a week, she took her students to a school-
wide chapel service, and about twice a year, she led the chapel
service by choosing the liturgy, selecting the hymns, and
delivering a short message based on Bible verses. (Ibid.) As a
result, Perich “performed an important role in transmitting the
Lutheran faith to the next generation.” (Ibid.)
The Supreme Court concluded that, “[i]n light of these
considerations—the formal title given Perich by the Church, the
substance reflected in that title, her own use of that title, and the
important religious functions she performed for the Church—
. . . Perich was a minister covered by the ministerial exception.”
(Hosanna-Tabor, supra, 565 U.S. at p. 192.) The court further
concluded that, because Perich qualified as a minister under the
exception, “the First Amendment requires dismissal of th[e]
employment discrimination suit against her religious employer,”
regardless of the reasons for the discharge decision. (Id. at
p. 194.) The court explained that “the purpose of the exception is
not to safeguard a church’s decision to fire a minister only when
it is made for a religious reason,” but rather to “ensure[] that the
15
authority to select and control who will minister to the faithful
. . . is the church’s alone.” (Id. at pp. 194–195, fn. omitted.)
Eight years later, in Our Lady of Guadalupe, supra, __ U.S.
at page __ [140 S.Ct. at p. 2055], the Supreme Court considered
whether the ministerial exception applied to two Catholic
elementary school teachers, each of whom lacked the title of
minister and had only limited religious training. The teachers,
Agnes Morrissey-Berru and Kristen Biel, filed suit against their
respective school employers, alleging that they were wrongfully
discharged in violation of federal anti-discrimination laws. (Id. at
p. __ [140 S.Ct. at pp. 2058, 2059].) Like most elementary school
teachers, both Morrissey-Berru and Biel taught all subjects,
including religion, to their students. (Id. at p.__ [140 S.Ct. at
pp. 2056, 2058].) Both teachers had entered into employment
agreements that set out the school’s religious mission, required
teachers to serve that mission, and imposed commitments on
religious instruction, worship, and modeling of the Catholic faith.
(Id. at p. __ [140 S.Ct. at pp. 2056–2058].) The agreements also
required compliance with the school’s faculty handbook, which
set out similar expectations. (Id. at p. __ [140 S.Ct. at pp. 2057,
2058].) In accordance with those job expectations, both
Morrissey-Berru and Biel instructed their students in the tenets
of Catholicism under a prescribed religious curriculum, prepared
their students for participation in Mass and accompanied their
students to Mass, and led their students in daily prayers. (Id. at
p. __ [140 S.Ct. at pp. 2057, 2059].) Both teachers were evaluated
on their fulfillment of their school’s religious mission, including
whether they infused Catholic values into all of their teaching.
(Ibid.)
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The Supreme Court held that the ministerial exception
barred the suits brought by Morrissey-Berru and Biel because
there was “abundant record evidence that they both performed
vital religious duties.” (Our Lady of Guadalupe, supra, __ U.S. at
p. __ [140 S.Ct. at p. 2066].) The court explained: “Educating
and forming students in the Catholic faith lay at the core of the
mission of the schools where they taught, and their employment
agreements and faculty handbooks specified in no uncertain
terms that they were expected to help the schools carry out this
mission and that their work would be evaluated to ensure that
they were fulfilling that responsibility. As elementary school
teachers responsible for providing instruction in all subjects,
including religion, they were the members of the school staff who
were entrusted most directly with the responsibility of educating
their students in the faith. And not only were they obligated to
provide instruction about the Catholic faith, but they were also
expected to guide their students, by word and deed, toward the
goal of living their lives in accordance with the faith. They
prayed with their students, attended Mass with the students,
and prepared the children for their participation in other
religious activities.” (Ibid.)
In reaching its holding in Our Lady of Guadalupe, the
Supreme Court emphasized that “[w]hat matters, at bottom, is
what an employee does.” (Our Lady of Guadalupe, supra, __ U.S.
at p. __ [140 S.Ct. at p. 2064].) The court reasoned that, although
the titles held by Morrissey-Berru and Biel “did not include the
term ‘minister,’ and they had less formal religious training” than
the teacher in Hosanna-Tabor, “their core responsibilities as
teachers of religion were essentially the same.” (Our Lady of
Guadalupe, at p. __ [140 S.Ct. at p. 2066].) The court also
17
cautioned that the four circumstances deemed relevant in
Hosanna-Tabor were “not inflexible requirements and may have
far less significance in some cases.” (Our Lady of Guadalupe, at
p. __ [140 S.Ct. at p. 2064].) Courts must therefore “take all
relevant circumstances into account” and “determine whether
each particular position implicated the fundamental purpose of
the exception.” (Id. at P. __ [140 S.Ct. at p. 2067].)
III. St. Cecilia did not waive the ministerial exception by
failing to assert the defense in its answer
Atkins first argues that the trial court erred in granting
St. Cecilia’s motion for summary judgment because the school
waived the ministerial exception as an affirmative defense by
failing to raise the defense in its answer. We conclude there was
no waiver in this case.
The Supreme Court has determined that the ministerial
exception “operates as an affirmative defense to an otherwise
cognizable claim.” (Hosanna-Tabor, supra, 565 U.S. at p. 195,
fn. 4.) Ordinarily, an affirmative defense must be alleged in the
answer or it is waived. (Green v. Healthcare Services, Inc. (2021)
68 Cal.App.5th 407, 415.) This does not mean, however, that the
failure to plead an affirmative defense in the answer necessarily
precludes the defendant from raising it in a motion for summary
judgment. (Nieto v. Blue Shield of California Life & Health Ins.
Co. (2010) 181 Cal.App.4th 60, 75; Cruey v. Gannett Co. (1998)
64 Cal.App.4th 356, 367.) Instead, courts generally have allowed
an affirmative defense to be asserted for the first time in a
motion for summary judgment “absent a showing of prejudice.”
(Nieto, at p. 75.) As explained by one appellate court: “Given the
long-standing California court policy of exercising liberality in
permitting amendments to pleadings at any stage of the
18
proceedings . . . we believe that a party should be permitted to
introduce [a] defense . . . in a summary judgment procedure so
long as the opposing party has adequate notice and opportunity
to respond.” (Cruey, at p. 367.)
In this case, Atkins has not shown prejudice from
St. Cecilia’s failure to allege the ministerial exception as an
affirmative defense in its answer. As St. Cecilia explained in its
motion to set aside the March 18, 2020 scheduling order, at the
time the parties stipulated to continue the trial date (but not the
deadline for filing a motion for summary judgment), the Supreme
Court had not yet issued its decision in Our Lady of Guadalupe,
supra, 140 S.Ct. 2049. Accordingly, at that time, St. Cecilia did
not believe it had grounds to seek summary judgment based on
the ministerial exception. Once the Supreme Court issued the
decision in that case, St. Cecilia gave Atkins notice of its intent to
assert the defense when it filed the motion to set aside, seeking
permission to move for summary judgment based on the
exception. Atkins had an opportunity to oppose St. Cecilia’s
request on both substantive and procedural grounds. After the
trial court granted St. Cecilia permission to raise the ministerial
exception in a summary judgment motion, Atkins had a full
opportunity to oppose that motion on the merits.
Atkins asserts that she suffered prejudice because
discovery had closed by the time St. Cecilia filed its summary
judgment motion, and thus, she did not have an opportunity to
conduct discovery that was tailored to address the ministerial
exception. As St. Cecilia points out, however, Atkins could have
asked the trial court to continue the summary judgment hearing
to allow her to conduct additional discovery pursuant to Code of
Civil Procedure section 437c, subdivision (h). While Atkins
19
argued in her opposition that she was prejudiced by St. Cecilia’s
failure to raise the ministerial exception in its answer, she never
requested a continuance so that she could seek any necessary
discovery. (See Roman v. BRE Properties, Inc. (2015) 237
Cal.App.4th 1040, 1056 [party opposing summary judgment
motion must request continuance to conduct further discovery
before opposition is due]; Combs v. Skyriver Communications,
Inc. (2008) 159 Cal.App.4th 1242, 1270 [party seeking
continuance of summary judgment hearing must submit
supporting declaration showing what outstanding discovery is
needed to oppose motion].) On this record, St. Cecilia did not
waive the ministerial exception as an affirmative defense.
IV. Triable issues of material fact exist as to whether the
ministerial exception applies to Atkins’s job position
Atkins also argues that the trial court erred in granting
summary judgment to St. Cecilia because her former job position
with the school does not fall within the scope of the ministerial
exception. Atkins specifically asserts that her job duties as both
an office administrator and an art teacher were secular in nature,
and did not involve the teaching of religion to the students.
St. Cecilia contends that Atkins is subject to the exception
because the school entrusted her with educating and forming
students in the Catholic faith, and Atkins fully embraced that
role in her teaching position. Viewing the evidence in the light
most favorable to Atkins, we conclude the trial court erred in
granting the summary judgment motion. Because there are
triable issues of material fact as to whether the ministerial
exception applies to Atkins’s former job position as an art teacher
20
and an office administrator, St. Cecilia was not entitled to
judgment as a matter of law on Atkins’s age discrimination suit. 2
We begin, as the Supreme Court instructed in Our Lady of
Guadalupe, with what Atkins did as an employee of St. Cecilia,
and what she did not do. Atkins worked for the school on a part-
time basis as both an office administrator and an art teacher. In
her final year of employment, she taught art on Mondays and
Wednesdays, and worked in the office on Fridays and Wednesday
afternoons. In her role as an office administrator, Atkins solely
performed secretarial or clerical-related duties such as answering
phones, photocopying, and maintaining student records. In her
role as an art teacher, Atkins taught visual art and art history to
students from kindergarten through eighth grade. In Atkins’s
class, the students would study different artists and then create
art projects based on their interpretation of the artists’ work.
Unlike the teachers in Hosanna-Tabor and Our Lady of
Guadalupe, Atkins did not teach religion to the students, nor is
there any indication in the record that she was required to do so.
Instead, Atkins testified that the subject of religion was “taught
2 In challenging the trial court’s ruling on the motion for
summary judgment, Atkins also contends that the court erred in
sustaining certain evidentiary objections that St. Cecilia made to
her opposing declaration. Atkins claims the trial court should
have overruled these objections because none of the statements in
her declaration contradicted her deposition testimony. For
purposes of this appeal, however, we need not address the merits
of the trial court’s evidentiary rulings. Even assuming without
deciding that the trial court properly sustained each of
St. Cecilia’s objections and excluded the challenged statements,
the remaining evidence before the court failed to establish that
the ministerial exception bars Atkins’s action as a matter of law.
21
by a separate teacher,” and that the students were instructed on
Catholic doctrine “when they had their religion class.” Atkins did
include religious methodology in her teaching of art history if the
class was “talking about an artist that had information about
methodology for religion.” She explained, however, that “[t]his
was not limited to any particular religion, but rather focused on
how religion might have affected a particular artist’s work.”
Additionally, while the students did create some religious-themed
art projects in the form of Christmas cards depicting the nativity
scene, Atkins did not teach the students about any of the
religious aspects of the nativity scene or Christmas. This stands
in stark contrast to the teacher in Hosanna-Tabor, who “taught
her students religion four days a week” (Hosanna-Tabor, supra,
565 U.S. at p. 192), and the teachers in Our Lady of Guadalupe,
who “were their students’ primary teachers of religion” under a
prescribed religious curriculum (Our Lady of Guadalupe, supra,
__ U.S. at p. __ [140 S.Ct. at p. 2067]).
St. Cecilia did present evidence that Atkins would pray
with the students by leading them in an “Our Father” or a “Hail
Mary” at the end of class if she was teaching art as the last
period of the day. Apart from this end-of-the-day prayer,
however, there was no evidence that Atkins led the students in
any religious activities or services or ever attended such services
herself. This is unlike the teacher in Hosanna-Tabor, who took
her students to a school-wide chapel service once a week and led
the service twice a year. (Hosanna-Tabor, supra, 565 U.S. at
p. 192.) It is also unlike the teachers in Our Lady of Guadalupe,
who regularly accompanied their students to Mass and prepared
their students to actively participate in Mass by teaching them
22
about communion and confession. (Our Lady of Guadalupe,
supra, __ U.S. at p. __ [140 S.Ct. at pp. 2057, 2059].)
St. Cecilia also presented evidence that Atkins signed a job
application in 2012 in which she acknowledged that she was
“willing to maintain, by word and actions, a position of role model
and witness to the Gospel of Christ that is in conformity with the
teachings, standards, doctrines, laws, and norms of the Roman
Catholic Church as interpreted by the [ADLA].” At that time,
Atkins also signed a job description for a position that required
“[o]ne who actively supports and is expected to conduct
themselves in accordance with the philosophy and mission of the
Church/School while performing their work.” Both the job
application and the job description, however, were for a
non-teaching staff position, which according to Atkins, was a
position in office administration. St. Cecilia does not contend
that Atkins is subject to the ministerial exception based on the
job duties that she performed as an office administrator. Instead,
the school asserts that Atkins qualified as a “ ‘minister’ ” within
the meaning of the exception “[g]iven the nature of her teaching
work.” However, there is no evidence that Atkins ever completed
a job application, or received a job description, for a teaching
position. Thus, Atkins’s agreement to conduct herself in
conformity with the teachings, standards, and mission of the
Catholic Church while performing her office position does not
demonstrate that St. Cecilia entrusted her as “a teacher with the
responsibility of educating and forming students in the [Catholic]
faith.” (Our Lady of Guadalupe, supra, __ U.S. at p. __ [140 S.Ct.
at p. 2069].)
In finding that the ministerial exception applied to Atkins’s
job position, the trial court primarily focused on her deposition
23
testimony about how she promoted the six tasks of catechesis set
forth in the ADLA’s Administrative Handbook. Atkins testified
that she would “promote the understanding” of these tasks in her
class by making sure that the students “did Christ-like things,”
and that “[i]f their behavior was not Christ-like, [she] would say
it’s not Christ-like.” She further testified that she “practiced
[the] Catholic faith every day” she came to class. Referencing the
tasks of catechesis, Atkins then explained that this meant the
students in her class “would be Christ-like” in that they prayed to
“acknowledg[e] their faith,” they were told “Jesus is the way to
go,” and they were taught to “live . . . Christ-like” by not being
selfish and by helping others in need. Citing Our Lady of
Guadalupe, the trial court concluded that this testimony showed
that Atkins’s role at St. Cecilia included “ ‘perform[ing] vital
religious duties, such as educating [the] students in the Catholic
faith and guiding [the] students to live their lives in accordance
with that faith.’ ”
When the full context of Atkins’s deposition testimony is
considered, however, her description of her role in making sure
the students in her art class behaved in a “Christ-like” manner is,
at best, ambiguous. While this testimony could suggest that
Atkins sought to integrate the Catholic faith into her teaching by
educating her students in the faith, it also reasonably could
support an inference that Atkins simply encouraged her students
to lead moral lives in a way that was consistent with the religious
mission of the school. In reviewing an order granting summary
judgment to the defendant, we must “liberally construe [the]
plaintiff’s evidentiary submissions and strictly scrutinize [the]
defendant’s own evidence, in order to resolve any evidentiary
doubts or ambiguities in [the] plaintiff’s favor.” (Johnson v.
24
American Standard, Inc. (2008) 43 Cal.4th 56, 64.) The evidence
that Atkins promoted “Christ-like” behavior in her class does not
establish, as a matter of law, that she performed vital religious
duties for St. Cecilia or otherwise qualified as a minister.
Moreover, in viewing the evidence in the light most
favorable to Atkins, we cannot ignore the fact that her job
position with St. Cecilia was not exclusively that of an art
teacher. Over the course of her 40-year employment, Atkins also
consistently worked as an office administrator or secretary. In
her final year at St. Cecilia, Atkins spent part of her time in the
classroom teaching art to the students and the rest of her time in
the office performing clerical tasks. St. Cecilia contends that
Atkins’s office work is not relevant because the Supreme Court in
Hosanna-Tabor expressly rejected the argument that the
ministerial exception “ ‘should be limited to those employees who
perform exclusively religious functions.’ ” (Hosanna-Tabor,
supra, 565 U.S. at p. 193.) However, the court never suggested
that an employee’s non-religious functions are immaterial to the
analysis. Rather, the court recognized that “the amount of time
an employee spends on particular activities is relevant in
assessing that employee’s status, but . . . cannot be considered in
isolation.” (Id. at p. 194.) Here, the record showed that Atkins
performed two essentially separate jobs during her employment,
and that her non-teaching office job was purely secular in nature.
Atkins’s office duties are particularly relevant here because the
gravamen of her action is that St. Cecilia wrongfully discharged
her by not retaining Atkins as an office administrator and
instead replacing her in this role with a younger employee.
“[T]aking all relevant circumstances into account” (Our
Lady of Guadalupe, supra, __ U.S. at p. __ [140 S.Ct. at p. 2067]),
25
we conclude that there are triable issues of material fact as to
whether Atkins’s former job position with St. Cecilia falls within
the scope of the ministerial exception. While St. Cecilia
presented evidence that Atkins prayed with the students in her
art class and promoted the ADLA’s six tasks of catechesis by
encouraging “Christ-like” behavior in her class, there was no
evidence that she ever taught, or was expected to teach, any type
of religious curriculum. There was also no evidence that Atkins
ever led any religious services, accompanied the students to
religious services, or prepared the students to participate in
religious services or activities. Given that Atkins held dual roles
at St. Cecilia as an art teacher and an office administrator, we
cannot conclude on this record that educating students in the
Catholic faith lay at the core of her job responsibilities.
Considering the totality of these circumstances, St. Cecilia was
not entitled to summary judgment based on the ministerial
exception.
26
DISPOSITION
The judgment is reversed, and the matter is remanded to
the trial court with directions to vacate its order granting
St. Cecilia’s motion for summary judgment and to enter a new
order denying the motion. Atkins shall recover her costs on
appeal.
VIRAMONTES, J.
We concur:
STRATTON, P. J.
GRIMES, J.
27