                          STATE OF MICHIGAN

                           COURT OF APPEALS



SHEILA GILMORE,                                                     UNPUBLISHED
                                                                    October 4, 2018
               Plaintiff-Appellant,

v                                                                   No. 337293
                                                                    Oakland Circuit Court
TRINITY MISSIONARY BAPTIST CHURCH,                                  LC No. 2016-154884-CD
and JOHN TOLBERT,

               Defendants-Appellees.


Before: JANSEN, P.J., and METER and STEPHENS, JJ.

PER CURIAM.

       Plaintiff appeals as of right the trial court’s order granting summary disposition in favor
of defendants pursuant to MCR 2.116(C)(4) and (C)(7). We vacate the trial court’s order and
remand for further proceedings consistent with Winkler v Marist Fathers of Detroit, Inc, 500
Mich 327; 901 NW2d 566 (2017).

                   I. RELEVANT FACTS AND PROCEDURAL HISTORY

        This appeal arises out of the termination of plaintiff’s employment with defendant Trinity
Missionary Baptist Church (Trinity). Plaintiff had worked for Trinity for over 30 years, and at
the time of her termination, was employed as Trinity’s business manager. In 2012, John Tolbert
was installed as the Senior Pastor of Trinity. Shortly thereafter, plaintiff claimed Pastor Tolbert
began asking her “when are you going to retire,” and generally treating her with distain and
hostility.

       In 2015 the tensions between plaintiff and Pastor Tolbert came to a head after Pastor
Tolbert discovered that plaintiff was receiving an additional five weeks of vacation pay in
addition to her regular weekly salary. Plaintiff claimed that a previous pastor had authorized the
five weeks of vacation pay for all tenured employees in 1999. Pastor Tolbert claims that the
agreement was made verbally, and he had no knowledge of such an arrangement until late 2015,
when he discovered plaintiff had authorized her extra pay as Trinity’s new payroll service was
preparing for the end of the year.

        Pastor Tolbert convened a “personal ministry” to investigate plaintiff’s salary. In May
2016, following the investigation, plaintiff was given two options: continue her employment with
Trinity without the extra five weeks of vacation pay under the terms set forth in the written job

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description for the business manager dated July 21, 2014, or retire. Plaintiff found neither option
to be acceptable. Plaintiff was ultimately placed on a two-week administrative leave, but was
notified on July 28, 2016 that her employment status had been converted to a discharge, effective
July 25, 2016.

        On September 2, 2016, plaintiff filed a seven-count complaint against Trinity and Pastor
Tolbert, alleging age discrimination, hostile work environment, and retaliation in violation of the
Elliot-Larsen Civil Rights Act (ELCRA), MCL 37.2101 et seq., wrongful discharge, breach of
contract, defamation, and intentional infliction of emotional distress. In lieu of filing an answer,
defendants filed a motion for summary disposition pursuant to MCR 2.116(C)(4) and (C)(7).
Defendants argued that plaintiff “seeks intervention by the [c]ourt on matters that are at the heart
of internal church governance.” Accordingly, defendants sought dismissal of plaintiff’s
complaint on the basis that allowing the trial court to decide her claims would result in the trial
court becoming “entangled in ecclesiastical questions of church governance.” The trial court
agreed, and in a written opinion and order, granted summary disposition in favor of defendants
on the basis that it lacked subject matter jurisdiction “because resolution of the claims would
involve an impermissible inquiry into the Church’s internal procedures.” Accordingly, the trial
court’s jurisdiction was “prohibited by the First Amendment [of the United States Constitution]
and summary disposition is appropriate.”1 This appeal followed.

                      II. THE ECCLESIASTICAL ABSTENTION DOCTRINE

       Plaintiff raises several issues relating to the trial court’s grant of summary disposition in
favor of defendants. First, plaintiff argues that the trial court abused its discretion when
concluding that it lacked subject matter jurisdiction over her claim of age discrimination due to
the ecclesiastical abstention doctrine, born out of the First Amendment of the United States
Constitution. We agree.

        This Court reviews a trial court’s decision on a motion for summary disposition de novo.
Winkler, 500 Mich at 333. This Court also reviews de novo questions of subject matter
jurisdiction and constitutional law. Id.

        Below, the trial court summarily dismissed plaintiff’s complaint on the basis that it
lacked subject matter jurisdiction to hear plaintiff’s claims, and that “jurisdiction by this [c]ourt
is prohibited by the First Amendment[.]” In sum, although not mentioned by name, the trial
court’s conclusion that it lacked subject matter jurisdiction over plaintiff’s complaint was based
on the ecclesiastical abstention doctrine.

                 In Winkler, our Supreme Court explained:

          The ecclesiastical abstention doctrine arises from the Religion Clauses of the First
          Amendment of the United States Constitution and reflects this Court’s
          longstanding recognition that it would be inconsistent with complete and


1
    The trial court also denied plaintiff’s motion for reconsideration


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       untrammeled religious liberty for civil courts to enter into a consideration of
       church doctrine or church discipline, to inquire into the regularity of the
       proceedings to church tribunals having cognizance of such matters, or to
       determine whether a resolution was passed in accordance with the canon law of
       the church, except insofar as it may be necessary to do so, in determining whether
       or not it was the church that acted therein. Accordingly, we have consistently
       held that the court may not substitute its opinion in lieu of that of the authorized
       tribunals of the church in ecclesiastical matters, and that judicial interference in
       the purely ecclesiastical affairs of religious organizations is improper. [Winkler,
       500 Mich at 337-338 (quotation marks, citations, brackets, and footnote omitted).]

However, simply because a religious organization may be a defendant in a civil action, the
ecclesiastical abstention doctrine does not divest the trial court’s jurisdiction. Rather, the
“doctrine informs how civil courts must adjudicate claims involving ecclesiastical questions; it
does not deprive those courts of subject matter jurisdiction over such claims.” Id. at 337.

       When a claim is brought against a religious entity, the relevant inquiry becomes,

       whether the actual adjudication of a particular legal claim would require the
       resolution of ecclesiastical questions; if so, the court must abstain from resolving
       those questions itself, defer to the religious entity’s resolution of such questions,
       and adjudicate the claim accordingly. [Id. at 341.]

Accordingly, the trial court’s grant of summary disposition on the basis of lack of subject matter
jurisdiction in favor of defendants was erroneous. Remand to the trial court is appropriate in
order for the trial court to “determine whether and to what extent the adjudication of the legal
and factual issues presented by the plaintiff’s claim would require the resolution of ecclesiastical
questions.” Id. at 343.2 The trial court does have subject matter jurisdiction over plaintiff’s
claims, as well as “the judicial power to consider [them] and dispose of [them] in a manner
consistent with the guarantees of the First Amendment.” Id. at 344.

       Given that remand for reconsideration in light of Winkler is appropriate, we need not
address plaintiff’s remaining issues on appeal.




2
  We note that Winkler was decided several months after the trial court made its challenged
ruling, however we conclude that it should be given retroactive application. See W.A. Foote
Mem Hosp v Mich Assigned Claims Plan, 321 Mich App 159, 182; 909 NW2d 38 (2017), lv
pending (nothing that the “general principle is that a decision of a court of supreme jurisdiction
overruling a former decision is retrospective in its operation, and the effect is not that the former
decision is bad law, but that it was never the law.” (quotation marks and citation omitted); see
also WT Andrew Co, Inc v Mid-State Surety Corp (After Remand), 461 Mich 628, 632 n 1; 611
NW2d 305 (2000), quoting Gentzler v Smith, 320 Mich 394, 398; 31 NW2d 668 (1948).


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      We vacate the trial court’s order granting summary disposition in favor of defendants and
remand for further proceedings consistent with Winkler. We do not retain jurisdiction.


                                                          /s/ Kathleen Jansen
                                                          /s/ Patrick M. Meter
                                                          /s/ Cynthia Diane Stephens




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