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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.
