                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                              File Name: 07a0012p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                       X
                                 Plaintiff-Appellant, -
 MILLICENT P. HOLLINS,
                                                        -
                                                        -
                                                        -
                                                            No. 05-6301
           v.
                                                        ,
                                                         >
 METHODIST HEALTHCARE, INC., doing business as          -
                                                        -
                                Defendant-Appellee. -
 Methodist University Hospital,

                                                        -
                                                       N
                         Appeal from the United States District Court
                      for the Western District of Tennessee at Memphis.
                     No. 04-02805—Jon Phipps McCalla, District Judge.
                                       Submitted: November 30, 2006
                                   Decided and Filed: January 10, 2007
       Before: DAUGHTREY and McKEAGUE, Circuit Judges; REEVES, District Judge.*
                                              _________________
                                                   COUNSEL
ON BRIEF: David P. Jaqua, Jessica A. Neal, BUTLER, SNOW, O’MARA, STEVENS &
CANNADA, Memphis, Tennessee, for Appellee. Millicent P. Hollins, Atlanta, Georgia, pro se.
    DAUGHTREY, J., delivered the opinion of the court, in which REEVES, D. J., joined.
McKEAGUE, J. (p. 5), delivered a separate concurring opinion.
                                              _________________
                                                  OPINION
                                              _________________
        MARTHA CRAIG DAUGHTREY, Circuit Judge. The plaintiff, Millicent Hollins, filed this
action against her former employer, Methodist Healthcare, Inc., claiming that her termination from
employment as a resident in the hospital’s Clinical Pastoral Education program violated the
Americans with Disabilities Act, 42 U.S.C. § 12101. On appeal, Hollins challenges the order of the
district court dismissing her claim based on lack of subject matter jurisdiction under the
constitutional “ministerial exception” to the enforcement of employment discrimination laws that
is derived from the First Amendment’s guarantee of religious freedom. See Hollins v. Methodist

         *
          The Honorable Danny C. Reeves, United States District Judge for the Eastern District of Kentucky, sitting by
designation.


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No. 05-6301           Hollins v. Methodist Healthcare, Inc.                                     Page 2


Healthcare, Inc., 379 F. Supp. 2d 907 (W.D. Tenn. 2005). We find no basis upon which to disturb
the district court’s decision and, therefore, we affirm.
                      I. FACTUAL AND PROCEDURAL BACKGROUND
        The facts of this case are fully set out in the district court’s opinion. In summary, the record
establishes that the defendant operates Methodist Hospital in Memphis “in accordance with the
Social Principles of The United Methodist Church” and is associated with the Conferences of the
United Methodist Church, a clearly religious organization. The plaintiff was a resident in the
hospital’s clinical pastoral education program, which required her to initiate pastoral visits with
patients and family members and to be on call during her non-working hours as a chaplain for all
the Methodist health facilities in the Memphis area. Because the program was accredited by the
Association of Clinical Pastoral Education, the hospital was required to sign a form agreeing, in
essence, to adhere to the association’s policy of non-discrimination on the basis of “race, gender,
age, faith group, national origin, sexual orientation, or disability.”
         As the result of a psychiatric evaluation, Hollins was dismissed from the residency program
because, according to her, she was “perceived as being a threat of harm to Defendant’s workplace.”
After she filed suit under the ADA, the hospital responded with a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(1), invoking the “ministerial exception” and contending that the
district court lacked subject matter jurisdiction. Hollins argued in response that the defendant was
not entitled to claim exemption from the ADA under the ministerial exception. In addition, she
asserted that even if it were so entitled, the hospital had waived the right to rely on the ministerial
exception as a defense to her ADA claim by seeking and obtaining accreditation from the
Association of Clinical Pastoral Education, including the defendant’s agreement to abide by the
association’s non-discrimination policy. The district court held that the defendant was entitled to
rely on the exception and that it had not waived its right to invoke the exception. As a result, the
court held that it lacked jurisdiction over the claim and dismissed the complaint. Hollins now
appeals that ruling.
                                         II. DISCUSSION
        We review de novo a district court’s order of dismissal for lack of subject matter jurisdiction
pursuant to Federal Rule of Civil Procedure 12(b)(1). See Moir v. Greater Cleveland Reg’l Transit
Auth., 895 F.2d 266, 269 (6th Cir. 1990). In response to a motion to dismiss under Rule 12(b)(1),
the plaintiff bears the burden of proving jurisdiction. See id. In addition, unlike Rule 12(b)(6)
analysis, under which the existence of genuine issues of material fact warrants denial of the motion
to dismiss,“the court is empowered to resolve factual disputes when subject matter jurisdiction is
challenged.” Id.
         The ministerial exception, a doctrine rooted in the First Amendment’s guarantees of religious
freedom, precludes subject matter jurisdiction over claims involving the employment relationship
between a religious institution and its ministerial employees, based on the institution’s constitutional
right to be free from judicial interference in the selection of those employees. See generally Serbian
E. Orthodox Diocese for the U.S. and Can. v. Milivojevich, 426 U.S. 696 (1976); Lewis v. Seventh-
Day Adventists Lake Region Conference, 978 F.2d 940 (6th Cir. 1992). Although the ministerial
exception is often raised in response to employment discrimination claims under Title VII of the
Civil Rights Act, 42 U.S.C. § 2000e to 42 U.S.C. § 2000e-17 (2006), which specifically bars
discrimination on the basis of religion, it has also been applied to claims under the ADA and the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634 (2006), as well as common law
claims brought against a religious employer. See, e.g., Hankins v. Lyght, 441 F.3d 96 (2d Cir. 2006)
(applying ministerial exception to an ADEA claim); Ogle v. Church of God, 153 Fed. Appx. 371
(6th Cir. 2005) (common law claims); Werft v. Desert Sw. Annual Conference of the United
No. 05-6301            Hollins v. Methodist Healthcare, Inc.                                        Page 3


Methodist Church, 377 F.3d 1099 (9th Cir. 2004) (ADA claim); Starkman v. Evans, 198 F.3d 173
(5th Cir. 1999) (ADA claim); Minker v. Balt. Annual Conference of United Methodist Church, 894
F.2d 1354 (D.C. Cir. 1990) (ADEA claim); Hutchison v. Thomas, 789 F.2d 392 (6th Cir. 1986)
(common law claims).
        In order for the ministerial exception to bar an employment discrimination claim, the
employer must be a religious institution and the employee must have been a ministerial employee.
But, in order to invoke the exception, an employer need not be a traditional religious organization
such as a church, diocese, or synagogue, or an entity operated by a traditional religious organization.
Examining cases decided in all of the circuit courts, the Fourth Circuit found that the exception has
been applied to claims against religiously affiliated schools, corporations, and hospitals by courts
ruling that they come within the meaning of a “religious institution.” See Shaliehsabou v. Hebrew
Home of Greater Wash., Inc., 363 F.3d 299, 309-310 (4th Cir. 2004) Its investigation led the Fourth
Circuit to conclude that a religiously affiliated entity is considered “a ‘religious institution’ for
purposes of the ministerial exception whenever that entity's mission is marked by clear or obvious
religious characteristics.” Id. at 310 (finding a predominantly Jewish nursing home to be a
“religious employer” subject to the ministerial exception).
        In this circuit, we have thus far applied the ministerial exception only to ordained ministers.
However, other circuits have extended the doctrine to bar employment discrimination claims brought
by other employees of a religious institution. These courts have considered a particular employee
to be a “minister” for purposes of the ministerial exception based on the function of the plaintiff’s
employment position rather than the fact of ordination. See Rayburn v. Gen. Conference of Seventh-
Day Adventists, 772 F.2d 1164, 1168 (4th Cir. 1985). As a general rule, the ministerial exception
will be invoked 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.” Id. at 1169 (quoting Bruce N. Bagni, Discrimination in the Name of the Lord: A Critical
Evaluation of Discrimination by Religious Organizations, 79 COLUM. L. REV. 1514, 1545 (1979)).
See, e.g., id. at 1168 (applying ministerial exception to associate in pastoral care); E.E.O.C. v.
Roman Catholic Diocese of Raleigh, N.C., 213 F.3d 795 (4th Cir. 2000) (applying ministerial
exception to director of music); Alicea-Hernandez v. Catholic Bishop of Chi., 320 F.3d 698 (7th Cir.
2003) (applying ministerial exception to the Hispanic Communications Director for the Diocese of
Chicago). We agree with this extension of the rule beyond its application to ordained ministers and
hold that it applies to the plaintiff in this case, given the pastoral role she filled at the hospital.
        On appeal, Hollins argues that the ministerial exception should not have barred her claim,
because Methodist Healthcare was not a “religious institution” and because she was not a
“ministerial employee.” In addition, she asserts that even if the exception applied to this
employment relationship, the defendant had waived its right to claim the exception by seeking and
obtaining accreditation from the Association of Clinical Pastoral Education, incident to which it
represented that it did not – and would not – discriminate based on, among other things, disability.
But, the district court found that the plaintiff failed to raise the first two issues, Hollins, 379 F. Supp.
2d at 912, and, therefore, they cannot be reviewed upon appeal. See Foster v. Barilow, 6 F.3d 405,
407 (6th Cir. 1993). Hence, the dispositive issue before us is whether Methodist Healthcare has
waived its First Amendment right to the ministerial exception.
        As the district court noted, “it is well established that courts closely scrutinize waivers of
constitutional rights, and ‘indulge every reasonable presumption against a waiver.’” Hollins, 370
F. Supp. 2d at 912 (quoting Sambo’s Rests., Inc. v. City of Ann Arbor, 663 F.2d 686, 690 (6th Cir.
1981) (internal quotation omitted). When First Amendment rights are at issue, “the evidence must
be ‘clear and compelling’ that such rights were waived.” Sambo’s Rests., Inc., 663 F.2d at 690
(citing Curtis Publ’g Co. v. Butts, 388 U.S. 130, 145 (1967)). Moreover, the Supreme Court has
No. 05-6301           Hollins v. Methodist Healthcare, Inc.                                     Page 4


applied to civil litigation the standard for waiver in a criminal proceeding, i.e., that the waiver must
be “‘voluntarily, intelligently, and knowingly’ made.” Fuentes v. Shevin, 407 U.S. 67, 94-95 (1972).
        Given the presumption against waivers of constitutional rights and the heavy burden required
to overcome that presumption, the district court found that the defendant “did not knowingly or
voluntarily waive its constitutional right to be free from judicial interference with the selection of
its ministers by seeking and obtaining . . . accreditation.” Hollins, 379 F. Supp.2d at 912. Of course,
as the court noted, the “alleged failure to adhere to the [accrediting agency’s] nondiscrimination
clauses might have some effect upon its accreditation by that agency.” Id. Nevertheless, we have
recognized that even when “the plaintiff alleges that the religious tribunal’s decision was based on
a misapplication of its own procedures and laws, the civil courts may not intervene.” Lewis, 978
F.2d at 942-43. Hence, despite any sympathy we might have for the predicament in which the
plaintiff allegedly found herself in this case – she purports to have been terminated on the basis of
dream analysis – we are bound by our own precedent to hold that her claim cannot be maintained
in federal court.
                                        III. CONCLUSION
        For the reasons set out above, we AFFIRM the district court’s judgment.
No. 05-6301           Hollins v. Methodist Healthcare, Inc.                                      Page 5


                                         _________________
                                          CONCURRENCE
                                         _________________
        McKEAGUE, Circuit Judge, concurring. I concur fully in the majority’s opinion. I write
separately to point out that there is an open question whether a religious organization can waive the
ministerial exception. At least one circuit has held that “the ministerial exception . . . is not subject
to waiver or estoppel.” Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036, 1042 (7th Cir.), cert.
denied, 127 S. Ct. 190 (2006). Given that Methodist Healthcare did not waive the exception under
the facts of this case, the question of whether it could even do so is not squarely before us.
