Penn v. New York Methodist Hospital

The district court further held that NYMH’s amendment of its

Certificate of Incorporation “sever[ed] all formal ties with the United Methodist

Church,” but did not “necessarily imply that the Hospital d[id] not maintain any

church‐based relationship or have any religious characteristics.”

at 182‐83.

Indeed, the district court recognized NYMH’s “connection with the United

Methodist Church,” its mission statement which “emphasize[d] an ‘ecumenical

program of pastoral care,’” and Mr. Penn’s own religious identification as a

Methodist and deemed these undisputed facts sufficient to warrant the application

of the ministerial exception.

Id. at 184

This appeal followed.

15 16-474-cv Penn v. New York Methodist Hospital

II. STANDARD OF REVIEW

We review de novo a grant of summary judgment under Fed. R. Civ. P. 56,

assessing whether the district court properly concluded that there was no genuine

issue of material fact and that the moving party was entitled to judgment as a

matter of law. See Ruggiero v. City. of Orange,

467 F.3d 170, 173

(2d Cir. 2006). While

“conclusory statements or mere allegations [are] not sufficient to defeat a

summary judgment motion,” we are “required to resolve all ambiguities and draw

all factual inferences in favor of the nonmovant.” Davis v. New York,

316 F.3d 93, 100

(2d Cir. 2002); Fed. R. Civ. P. 56(e).

III. DISCUSSION

The purpose of the ministerial exception is to “ensure[] that the authority to

select and control who will minister to the faithful—a matter ‘strictly

ecclesiastical,’ . . .—is the church’s alone.” Hosanna‐Tabor Evangelical Lutheran

Church & Sch. v. E.E.O.C.,

565 U.S. 171

, 194‐95 (2012)(quoting Kedroff v. Saint

Nicholas Cathedral of Russian Orthodox Church in N. Am.,

344 U.S. 94, 119

(1952)); see

also Fratello v. Archdiocese of New York,

863 F.3d 190, 199

(2d Cir. 2017) (describing

the roots of the ministerial exception in the colonial struggle against a “national

church”). The ministerial exception “operates as an affirmative defense to an

16 16-474-cv Penn v. New York Methodist Hospital

otherwise cognizable claim, not a jurisdictional bar.” Hosanna‐Tabor,

565 U.S. at 195

n.4.

As this Court has previously recognized, “[i]t is the relationship between

the activities the employee performs for her employer, and the religious activities

the employer espouses and practices, that determines” whether the exception

applies. Fratello, 863 F.3d at 205‐06. Additionally, as both the Supreme Court and

this Court have acknowledged, there is no “rigid formula for deciding when” the

exception applies. Hosanna‐Tabor,

565 U.S. at 190

; see also Fratello, 863 F.3d at 204‐

05 (considering four factors identified in Hosanna‐Tabor to evaluate whether

individual was a minister within the meaning of the exception, but noting the

Supreme Court “instructs only as to what we might take into account as relevant .

. . it neither limits the inquiry to those considerations nor requires their application

in every case.”).

Applying these principles here and construing all evidence in the light most

favorable to Mr. Penn, see Ruggiero,

467 F.3d at 173

, the district court did not err in

applying the ministerial exception doctrine. 2 While a close question, NYMH,

2 Appellant also argued that the district court erred by (1) admitting an unauthenticated copy of NYMH’s by‐laws into evidence, Appellant’s Br. at 58; (2) failing to consider caselaw interpreting the Religious Freedom Restoration Act (RFRA) and Title VII’s

17 16-474-cv Penn v. New York Methodist Hospital

because of its history and continuing purpose, through its Department of Pastoral

Care, is a “religious group,” and since Mr. Penn’s role within the Department of

Pastoral Care was to provide religious care to the hospital’s patients and religious

care only, the ministerial exception doctrine should be applied.3 Once applied, its

application warrants this lawsuit’s dismissal. Any other conclusion risks violating

the First Amendment’s Religion Clauses, most specifically the Establishment

Clause.

A. The Application of the Ministerial Exception Doctrine

While the Hosanna‐Tabor decision made clear that the ministerial exception

applies to “religious groups” when making employment decisions involving

“ministers,” see Hosanna‐Tabor,

565 U.S. at 196

, the Supreme Court did not “adopt

exemption for “religiously affiliated” employers, id. at 28; and (3) considering the “sliding scale” test referenced in Musante,

2004 WL 721774

, at *6, and Rweyemamu,

520 F.3d at 208

. We do not need to reach these issues. Nor do we need to address Appellee’s argument that RFRA separately bars this case. 3 The dissent reaches the opposite conclusion. See Dissent at 18‐19 (“Because there is insufficient evidence that NYMH’s mission is marked by clear or obvious religious characteristic, I conclude that it does not qualify as a religious institution for purposes of the ministerial exception.” (citation and internal quotation marks omitted)). Paradoxically, although the NYMH’s Department of Pastoral Care indisputably is dedicated to the religious concerns of the hospital’s patients by providing and supervising chaplains to address their specific religious needs, the dissent would hold that it is not a “religious group.” As discussed below, this outcome is neither required nor recommended by the prevailing law. 18 16-474-cv Penn v. New York Methodist Hospital

a rigid formula for deciding when an employee qualifies as a minister,” noting

only that “the ministerial exception is not limited to the head of a religious

congregation.” Id. at 190. The Supreme Court also did not explain how to define a

“religious group” to determine who could properly invoke the exception. Id. at

188 (referencing a “religious group’s right to shape its own faith and mission

through its appointments”). Nevertheless, consistent with the Supreme Court’s

guidance in Hosanna‐Tabor and this Court’s recent ruling in Fratello, NYMH is a

“religious group,” at least with respect to its Department of Pastoral Care.

Both before and after Hosanna Tabor, other circuits have applied the

ministerial exception in cases involving “religiously affiliated entit[ies],” whose

“mission[s are] marked by clear or obvious religious characteristics.” Conlon v.

InterVarsity Christian Fellowship,

777 F.3d 829, 834

(6th Cir. 2015) (quoting

Shaliehsabou v. Hebrew Home of Greater Wash.,

363 F.3d 299, 310

(4th Cir. 2004)). In

Shaliehsabou, the Fourth Circuit allowed a Jewish nursing home to invoke the

ministerial exception because its “by‐laws define[d] it as a religious and charitable

non‐profit corporation and declare[d] that its mission was to provide elder care to

‘aged of the Jewish faith in accordance with the precepts of Jewish law and

customs.’”

Id. at 310

; see also Conlon, 777 F.3d at 833‐34 (“It is undisputed that

19 16-474-cv Penn v. New York Methodist Hospital

InterVarsity Christian Fellowship is a Christian organization, whose purpose is to

advance the understanding and practice of Christianity in colleges and

universities. It is therefore a ‘religious group’ under Hosanna‐Tabor.”).

Courts have also allowed hospitals to invoke the ministerial exception

doctrine in employment suits from pastoral staff members. See Hollins v. Methodist

Healthcare,

474 F.3d 223, 226

(6th Cir. 2007) (“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.”), rev’d in part

on other grounds by Hosanna‐Tabor,

565 U.S. at 195

n.4; Scharon v. St. Luke’s Episcopal

Presbyterian Hosps.,

929 F.2d 360, 362

(8th Cir. 1991) (“It cannot seriously be claimed

that a church‐affiliated hospital providing this sort of ministry to its patients is not

an institution with substantial religious character. . . . While St. Luke’s provides

many secular services (and arguably may be primarily a secular institution), in its

role as Scharon’s employer it is without question a religious organization.”)

(citations omitted); see also Shaliehsabou, 363 F.3d at 310‐11 (“Pursuant to [its]

mission, the Hebrew Home maintained a rabbi on its staff, employed mashgichim

to ensure compliance with the Jewish dietary laws, and placed a mezuzah on every

resident’s doorpost. Although we do not have to decide the full reach of the phrase

20 16-474-cv Penn v. New York Methodist Hospital

‘religious institution,’ we hold that the phrase includes an entity such as the

Hebrew Home.”).

Mr. Penn argues, however, that NYMH is not a religious institution. He

maintains that the hospital is no longer affiliated with the United Methodist

Church. Indeed, NYMH took steps to distance itself from its religious heritage. Its

by‐laws no longer require the hospital to seek permission from the United

Methodist Church to make significant business decisions, see Hollins v. Methodist

Healthcare,

379 F. Supp. 2d 907, 909

(W.D. Tenn. 2005), nor do they give the United

Methodist Church the power to veto any amendment to the hospital’s articles of

incorporation, Scharon,

929 F.2d at 362

(adding that “[t]he hospital’s Board of

Directors consists of four church representatives and their unanimously agreed‐

upon nominees”).

Furthermore, NYMH’s Methodist identity does not infuse its performance

of its secular duties, making it less clear that its “mission is marked by clear or

obvious religious characteristics.” Shaliehsabou, 363 F.3d at 310‐11 (observing that

the defendant nursing home required staff to comply with religious laws while

administering healthcare, hung a mezuzah on each patient’s doorway, and stated

in its by‐laws that its mission was to serve the “aged of Jewish faith”). Except for

21 16-474-cv Penn v. New York Methodist Hospital

the several days a year when it offers free pastoral care, NYMH’s Methodist

affiliation does not pervade its work as a healthcare organization. Mr. Penn also

emphasizes that, as the district court acknowledged in its ruling on NYMH’s

motion to dismiss, “many secular hospitals have chaplains and accredited clinical

pastoral education programs.” Penn,

2013 WL 5477600

, *8.

These arguments, however, ignore how the hospital’s Department of

Pastoral Care operates and how these operations are “marked by clear or obvious

religious characteristics.” Conlon,

777 F.3d at 834

. The Department of Pastoral Care

required chaplains, like Mr. Penn, to distribute Bibles, perform religious rituals

and organize and conduct religious services, including Easter services and

memorial services. While NYMH may have shed significant aspects of its religious

identity by amending its Certificate of Incorporation, the hospital’s Department of

Pastoral Care has retained a critical aspect of that religious identity in order to

provide religious services to its patients. These services, while not limited to those

who are Methodist, are indisputably religious.4 Mr. Penn himself acknowledges as

4 The dissent does not argue that the Department of Pastoral Care is not engaged in legitimate religious activities, but instead disregards these religious activities because they are not “Methodist.” See Dissent at 10‐11 (noting, inter alia, that its mission statement “is ‘ecumenical,’ i.e., not Methodist;” its “website does not mention the Methodist faith;” and “[n]one of the three full‐time chaplains of the Hospital’s Department of Pastoral Care

22 16-474-cv Penn v. New York Methodist Hospital

much. See Penn,

2013 WL 5477600

, at *6 (alluding to Mr. Penn’s Complaint, in

which he states that he coordinated the distribution of Bibles to all patient units,

performed an in‐hospital memorial service for an employee who died, performed

Easter Services and communion and “maintain[ed] an active, on‐going Pastoral

care to staff”).

In its ruling on summary judgment, the district court determined that “the

relationship between Plaintiff and NYMH (specifically, the Department of Pastoral

Care) was that of a religious employee and a religious institution.” Penn,

158 F. Supp. 3d at 184

(limiting its decision by noting that it was made “insofar as

Plaintiff is a Methodist and was responsible—at least in part—for preaching the

Christian faith”). While Mr. Penn challenges whether the “obvious religious

are Methodist;” and expecting “its director to be Methodist, or for at least one of its permanent chaplains to be Methodist . . . .”). As a result, the dissent finds that “NYMH’s mission and operations are not ‘marked by clear or obvious religious characteristics.’”

at 11 (quoting Shaliehsabou,

). The dissent, however, cites no precedent for the proposition that the Department of Pastoral Care’s embrace of religious traditions beyond Methodism disqualifies it from constitutional protection under the Constitution’s Religion Clauses, and to inquire whether this ecumenical approach to pastoral care is consistent with Methodism, simply “plunge[s the Court] into a maelstrom of Church policy, administration, and governance,” Rweyemamu,

(citation and internal quotation marks omitted), something this Court has expressly prohibited. See

id.

at 209‐10; see also Commack Self‐Serv. Kosher Meats, Inc. v. Weiss,

294 F.3d 415

, 427 (2d Cir. 2002); Catholic High Sch. Ass’n of the Archdiocese v. Culvert,

753 F.2d 1161, 1168

(2d Cir. 1985).

23 16-474-cv Penn v. New York Methodist Hospital

characteristics” of his work and the NYMH satisfy the legal standard of being a

“religious group,” he does not and cannot dispute that he performed religious

services for NYMH’s Department of Pastoral Care and, thus, served that

department’s religious purpose. The district court therefore properly applied the

ministerial exception because the Department of Pastoral Care within the NYMH

had the “obvious religious characteristics” of a “religious group” and employed

Mr. Penn as a minister. 5

B. This Application of the Ministerial Exception Doctrine Properly Recognizes the Establishment Clause’s Prohibition Against Excessive Entanglement With Religion

This application of the ministerial exception doctrine, that the NYMH’s

Department of Pastoral Care is a “religious group,” one consistent with the

relevant precedent and this case’s undisputed facts, properly balances the

constitutional consequences of not doing so: the risk of excessive entanglement

5 Because this Court’s ruling is premised on the NYMH having been a religiously‐ affiliated entity and having retained a sufficient portion of its identity in the specific operation of the Department of Pastoral Care, this Court does not and need not reach the issue of whether hospitals, secular in their origins and with chaplaincies, also could properly invoke the ministerial exception. “There will be time enough to address the applicability of the exception to other circumstances if and when they arise.” Hosanna‐ Tabor,

565 U.S. at 196

; see also PDK Laboratories Inc. v. U.S. Drug Enforcement Admin.,

362 F.3d 786, 799

(D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment) (noting the “cardinal principle of judicial restraint – if it is not necessary to decide more, it is necessary not to decide more . . .”). 24 16-474-cv Penn v. New York Methodist Hospital

with “ecclesiastical decisions.” Hosanna‐Tabor, 565 U.S. at 188‐89 (observing that

judicial interference with the selection of ministers violates the Establishment

Clause, which “prohibits government involvement in . . . ecclesiastical decisions”

to protect against the establishment of religion).

As this Court has recognized, “Hosanna‐Tabor made clear that the First

Amendment does not tolerate a judicial remedy for any minister claiming

employment discrimination against his or her religious group, regardless of the

group’s asserted reason (if any) for the adverse employment action.” Fratello,

863 F.3d at 204

. This Court explained that “a court is virtually never the place[] to

analyze the grounds for a religious group’s reasons for selecting its ministers,”

id.

at 204 n.26, because a judge is ill‐equipped even to assess whether a particular

claim is a religious one. It is clear, therefore, 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 protect a church’s autonomy to “select[] those who

will personify its beliefs.” Hosanna‐Tabor, 565 U.S. at 188‐89. In other words, rather

than focus on the claims at issue in an employment discrimination case, Hosanna‐

Tabor instructs us to review the employee and the employer and assess the

religious characteristics of each.

25 16-474-cv Penn v. New York Methodist Hospital

Our inquiry therefore must consider the Establishment Clause, which

forbids “an excessive government entanglement with religion.” Lemon v.

Kurtzman,

403 U.S. 602, 613

(1971) (citation omitted); see also Scharon,

929 F.2d at 362

(“To decide this question, we apply another three‐part test set out by the

Supreme Court in Lemon. . . . Scharon argues that St. Luke’s is not a religious

institution and that she was a secular employee, not ‘clergy.’ She therefore claims

that the application of Title VII and the ADEA would not require excessive

government entanglement with religion. Scharon’s assertions, however, are

untenable.”). While Hosanna‐Tabor did “leave open the possibility that some

employment‐discrimination claims by ministers might not be barred if excessive

entanglement could be avoided in the particular case,” Fratello,

863 F.3d at 202

where excessive government entanglement with religion is involved, it follows

that employment discrimination claims by ministers must be barred.

Indeed, this Court in Rweyemamu clarified the important constitutional

issues behind the ministerial exception doctrine. There, a Catholic priest filed suit

against the local Bishop and Diocese, alleging employment discrimination in

violation of Title VII. The Court observed that a “lay employee’s relationship to

his employer may be ‘so pervasively religious’ that judicial interference in the form

26 16-474-cv Penn v. New York Methodist Hospital

of a discrimination inquiry could run afoul of the Constitution.” Rweyemamu,

520 F.3d at 208

(citing DeMarco v. Holy Cross High Sch.,

4 F.3d 166

(2d Cir. 1993)). In

order to prevail on his Title VII claim, the priest had to argue that the Catholic

Church’s decision to fire him was “not only erroneous, but also pretextual.”

The ministerial exception applied because the Court was neither permitted nor

equipped to evaluate Rweyemamu’s pretext argument.

As the Court noted: “[H]ow are we, as Article III judges, to gainsay the

Congregatio Pro Clericis’ conclusion that [Rweyemamu] is insufficiently devoted

to ministry? How are we to assess the quality of his homilies?”

Id. at 209

; see Bronx

Household of Faith v. Bd. of Educ. of N.Y.C.,

750 F.3d 184, 199

(2d Cir. 2014) (“[A]t the

very least . . . the Establishment Clause prohibits government from appearing to

take a position on questions of religious belief.”) (citations omitted); see also

Commack, 294 F.3d at 425 (holding that the challenged kosher fraud laws

“excessively entangle government and religion because they . . . take sides in a

religious matter [and] require the State to take an official position on religious

doctrine.”).6

6 Even before Rweyemamu, this Court had recognized that courts are prohibited “from inquiring into an asserted religious motive to determine whether it is pretextual.” Culvert,

753 F.2d at 1168

. 27 16-474-cv Penn v. New York Methodist Hospital

This case presents that precise challenge. Any evaluation of Mr. Penn’s

claims would require the Court to examine whether NYMH’s explanation of its

failure to promote him, and for his eventual termination, was “not only erroneous,

but also pre‐textual.” Rweyemamu,

. As “legitimate non‐

discriminatory reasons” for their failure to promote Mr. Penn, NYMH argues that

Mr. Penn ended a service with a hymn that was only familiar to a certain group of

Christians, spent too much time counseling each patient, was insensitive to non‐

Christian patients, and failed to attend meetings. When Mr. Poulos selected Ms.

Hong over Mr. Penn for promotion to Staff Chaplain, Mr. Poulos concluded that

Ms. Hong had “strong[er] counseling skills” and was, in short, a better pastor. Joint

App’x at 174. To explain its decision to fire Mr. Penn—the decision that he

challenges as retaliatory—NYMH claims that Mr. Penn improperly completed a

“referral card,” which resulted in a patient dying without receiving last rites,

inappropriately counseled a couple after a fetal demise, misrepresented the

availability of an Easter Service to a Catholic nurse, and triggered complaints

about sexual harassment from a Resident Chaplain.

Any jury hearing Mr. Penn’s employment discrimination and retaliation

claims therefore would have to determine how a minister should conduct religious

28 16-474-cv Penn v. New York Methodist Hospital

services or provide spiritual support. Jurors would have to measure the

importance of a patient’s last rites, a chaplain’s selection of a particular hymn, and

a Catholic’s access to Communion. They would need to evaluate whether it was

appropriate for the Department of Pastoral Care to seek out a Catholic chaplain or

to fire an employee who did not accommodate Catholic nurses. They would have

to consider the disagreement between Mr. Poulos and Mr. Penn on the appropriate

length of pastoral counseling sessions—a “philosophical difference,” according to

NYMH—and compare Mr. Penn’s pastoral skills to Ms. Hong’s. Appellee’s Br. at

37.

Any of these decisions, all indisputably necessary to the adjudication of Mr.

Penn’s claims—even if intertwined with some secular concerns—“would plunge

[the Court] into a maelstrom of Church policy, administration, and governance,”

Rweyemamu,

520 F. 3d at 209

(citing Natal v. Christian and Missionary Alliance,

878 F.2d 1575, 1578

(1st Cir. 1989) (internal quotation marks omitted), and risk

“government involvement in . . . ecclesiastical decisions.” Hosanna‐Tabor,

565 U.S. at 171

.7 This Court has cautioned that judges are “ill‐equipped to assess whether,

7The dissent argues that “the interfaith nature of the Department means that it is not run according to the tenets of any particular religion, thereby reducing the likelihood that evaluating the reasons for the termination of an employee such as Penn would ‘plunge

29 16-474-cv Penn v. New York Methodist Hospital

and to what extent, an employment dispute between a minister and his or her

religious group is premised on religious grounds.” Fratello,

863 F.3d at 203

. And,

when a court is asked to “take sides in a religious matter,” Commack, 294 F.3d at

425, the court must dismiss the case. See Culvert,

753 F.2d at 1168

(recognizing that

“the First Amendment prohibits . . . [the courts] from inquiring into an asserted

religious motive to determine whether it is pretextual.”). Following these

principles, this case must be dismissed.

IV. CONCLUSION

For the reasons stated above, the judgment of the district court is

AFFIRMED.

[a court] into a maelstrom of Church policy, administration, and governance.” Dissent at 18 (quoting Rweyemamu,

). In doing so, the dissent glosses over core Establishment Clause issues in two significant ways. First, as discussed above, see Slip Op. at 23 n.4, by determining that the NYMH’s Department of Pastoral Care’s ecumenical approach to pastoral care is inconsistent with Methodism, the dissent has already crossed the permissible constitutional line and begun defining “Church policy, administration, and governance.” Second, because the Department of Pastoral Care serves the diverse spiritual needs of its patients, it thus must be cognizant of and sensitive to “Church policy, administration, and governance” of many faith perspectives and not just one. If not, it risks trivializing, if not disrespecting, the genuine religious beliefs of its patients. See Joint App’x at 407 (requiring NYMH chaplains “[t]o facilitate the patient’s receiving the rituals and practices of his/her own faith traditions when requested”). In other words, “the interfaith nature of the Department” means more entanglement with “Church policy, administration, and governance,”—not less. 30 16-474-cv Penn v. New York Methodist Hospital

DRONEY, Circuit Judge, dissenting:

The majority holds that a secular hospital with minimal vestiges of its

religious lineage may assert the Religion Clauses of the First Amendment to block

claims of racial and religious discrimination by a former employee. I respectfully

dissent. The majority has set the bar far too low for employers to claim religious‐

based immunity from federal anti‐discrimination law.

I. The Religion Clauses of the First Amendment and the Ministerial Exception

The First Amendment provides that “Congress shall make no law

respecting an establishment of religion, or prohibiting the free exercise

thereof . . . .” U.S. Const. amend. I. “[T]he Religion Clauses ensure[] that the . . .

Federal Government—unlike the English Crown—would have no role in filling

ecclesiastical offices. The Establishment Clause prevents the Government from

appointing ministers, and the Free Exercise Clause prevents it from interfering

with the freedom of religious groups to select their own.” Hosanna‐Tabor

Evangelical Lutheran Church & Sch. v. E.E.O.C.,

565 U.S. 171, 184

(2012). To give

force to these protections for religious institutions as employers, the lower federal

courts created and applied the “‘ministerial exception,’ a doctrine that precludes,

on First Amendment grounds, employment‐discrimination claims by ‘ministers’

1 16-474-cv Penn v. New York Methodist Hospital

against the religious organizations that employ or formerly employed them.”

Fratello v. Archdiocese of N.Y.,

863 F.3d 190, 192

(2d Cir. 2017). The exception

“addresses a tension between two core values underlying much of our

constitutional doctrine and federal law: equal protection and religious liberty.”

Id. at 198

. In Hosanna‐Tabor, the Supreme Court endorsed this doctrine because

[r]equiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.

Hosanna‐Tabor, 565 U.S. at 18889.

In order for a defendant‐employer to claim the protections of the ministerial

exception, two distinct requirements must be met: (1) the plaintiff must be a

minister; and (2) the defendant must be a religious institution. See Hosanna‐Tabor,

565 U.S at 188–89 (holding that the ministerial exception “precludes application of

[civil rights] legislation to claims concerning the employment relationship between

a religious institution and its ministers” (emphasis added)); Fratello,

863 F.3d at 198

2 16-474-cv Penn v. New York Methodist Hospital

(noting that “[t]he ministerial exception bars employment‐discrimination claims

brought by ministers against the religious groups that employ or formerly employed

them” (emphasis added)); Hollins v. Methodist Healthcare, Inc.,

474 F.3d 223, 235

(6th

Cir. 2007) (“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.”), abrogated in part on other

grounds by Hosanna‐Tabor,

565 U.S. at 195

n.4. Accordingly, “the [ministerial]

exception does not apply to the religious employees of secular employers or to the

secular employees of religious employers.” Shaliehsabou v. Hebrew Home of Greater

Washington, Inc.,

363 F.3d 299, 307

(4th Cir. 2004).1

Because Penn does not challenge that he is a “minister” for the purposes of

the ministerial exception, it is only necessary to resolve whether New York

Methodist Hospital (“NYMH”) qualifies—today—as a “religious institution.”

1 Despite the frequent use of the term “minister” in analyzing the ministerial exception, an employee performing certain religious functions need not be an ordained minister to qualify as a “minister” for purposes of the exception. See, e.g., Fratello, 863 F.3d at 20609 (holding that the lay principal of a Catholic school was a “minister” for purposes of the ministerial exception); Cannata v. Catholic Diocese of Austin,

700 F.3d 169

, 17780 (5th Cir. 2012) (holding that the music director at a Catholic church qualified as such a “minister”). 3 16-474-cv Penn v. New York Methodist Hospital

II. The Meaning of “Religious Institution”

It is clearest that an institution is a “religious institution” when it is “a

traditional religious organization such as a church, diocese, or synagogue, or an

entity operated by a traditional religious organization,” Hollins,

474 F.3d at 225

, as

was the case for the church‐operated schools in both Fratello and Hosanna‐Tabor.

Today, the majority joins the Fourth Circuit in holding that “a religiously

affiliated entity is a ‘religious institution’ for purposes of the ministerial exception

whenever that entityʹs mission is marked by clear or obvious religious

characteristics.” Shaliehsabou,

. While I agree that this approach is

consistent with the Supreme Court’s guidance in Hosanna‐Tabor, I disagree with

the majority’s application of it to the hospital defendant here.2

2 The majority does not set forth factors for a court to consider in determining whether an organization qualifies as a “religious institution,” as “marked by clear or obvious religious characteristics.” Shaliehsabou,

. In the related Title VII religious exemption context, the Third Circuit has set forth the following factors in determining whether an organization is religious:

(1) whether the entity operates for a profit, (2) whether it produces a secular product, (3) whether the entityʹs articles of incorporation or other pertinent documents state a religious purpose, (4) whether it is owned, affiliated with or financially supported by a formally religious entity such as a church or synagogue, (5) whether a formally religious entity participates in the management, for instance by having representatives on the board of trustees, (6) whether the entity holds itself out to the public as secular or sectarian, (7) whether the entity regularly includes prayer or other forms of

4 16-474-cv Penn v. New York Methodist Hospital

III. NYMH is not a “Religious Institution”

There is no question that in 1881, when the Methodist Hospital of Brooklyn

was founded by a Methodist minister and a Methodist benefactor, it was a

religiously‐affiliated entity subject to the protections of the First Amendment

religion clauses. There is also no dispute that it continued to be a religiously‐

affiliated institution for many years. However, since at least the 1970s, the hospital

has shed almost all of its religious character.

The majority acknowledges many of the undisputed facts set forth below,

but concludes that they do not show that NYMH is no longer a religious

institution.

worship in its activities, (8) whether it includes religious instruction in its curriculum, to the extent it is an educational institution, and (9) whether its membership is made up by coreligionists.

LeBoon v. Lancaster Jewish Cmty. Ctr. Assʹn,

503 F.3d 217, 226

(3d Cir. 2007). The Ninth Circuit has held that an entity qualifies for the Title VII religious exemption when, at least, it “[1] is organized for a religious purpose, [2] is engaged primarily in carrying out that religious purpose, [3] holds itself out to the public as an entity for carrying out that religious purpose, and [4] does not engage primarily or substantially in the exchange of goods or services for money beyond nominal amounts.” Spencer v. World Vision, Inc.,

633 F.3d 723, 724

(9th Cir. 2011) (per curiam). If these factors were applied to NYMH, they would weigh against NYMH being considered a “religious institution.”

5 16-474-cv Penn v. New York Methodist Hospital

The evolution of NYMH’s Certificate of Incorporation shows that NYMH

almost entirely eliminated its ties with the United Methodist Church. The original

Certificate of Incorporation is not in the record. However, a 1973 amendment

“delete[d] the requirement that each of [four] classes [of trustees] contain a bishop

of the Methodist Episcopal Church,” although the Bishop of the New York Area

of The United Methodist Church and the President of the Guild of Methodist

Hospitals remained on the board of trustees ex officio. App. 257, 259. The

Certificate’s statement of purpose then indicated that in addition to performing

typical hospital healthcare functions, “[t]he corporation in maintaining its

Christian genesis and its Church related character in the performance of its

functions shall nurture a meaningful and effective relationship with The United

Methodist Church and its participating boards, institutions and congregations.”

App. 258.

But, in 1974, the Certificate was again amended “to delete provisions

relating to the [hospital’s] relationship with The United Methodist Church.” App.

269. The amendment also removed the Bishop of the New York Area of the United

States Methodist Church and the President of the Guild of Methodist Hospitals

from the board of trustees, and deleted the language from the 1973 amendment

6 16-474-cv Penn v. New York Methodist Hospital

regarding “maintaining its Christian genesis and its Church related character” and

“nurturing a meaningful and effective relationship with the United Methodist

Church” from its statement of purpose. App. 269–70.

Although the current chair of the Hospital Board is a Methodist minister,

only three of its seventeen trustees are Methodist ministers, and NYMH has

conceded that they (including the chair) “do[] not . . . represent any unit of the

United Methodist Church [in their role] on the Hospital Board of Trustees.” App.

351.3 There is also no evidence in the record that the Methodist Church retains any

influence over any part of the Hospital’s day‐to‐day or long‐term operations. Nor

is there evidence that Methodist religious doctrine guides NYMH or its

Department of Pastoral Care’s operations.4

3 The majority cites to provisions of the NYMH by‐laws that state that the Board shall “include significant representation from the community and the United Methodist Church” and select its president after consulting with a Methodist bishop. Slip. Op. at 6 (quoting App. 87). However, Penn objects to the consideration of those by‐laws because they are unauthenticated. The majority does not resolve that objection. In any event, those provisions contradict the 1974 amendment to the Certificate of Incorporation, as well as NYMH’s admissions that the Methodist ministers on the Board (including the chair) “do[] not . . . represent any unit of the United Methodist Church [in their role] on the Hospital Board of Trustees.” App. 351. 4 In 1993, NYMH became a member of the New York Presbyterian Healthcare Network, now New York‐Presbyterian Healthcare System. There is no evidence that this membership imposed any type of Presbyterian (or Methodist) doctrinal requirements on NYMH, and the defendants do not argue that NYMH is a Presbyterian religious institution. 7 16-474-cv Penn v. New York Methodist Hospital

There is also evidence that NYMH holds itself out to the public as a secular

institution. See Spencer v. World Vision, Inc.,

633 F.3d 723, 724

(9th Cir. 2011) (per

curiam) (considering whether an institution “holds itself out to the public as an

entity for carrying out [a] religious purpose” as a factor in determining whether

the related Title VII religious exemption applies); LeBoon v. Lancaster Jewish Cmty.

Ctr. Assʹn,

503 F.3d 217, 226

(3d Cir. 2007) (considering “whether [an] entity holds

itself out to the public as secular or religious” as a factor in determining whether

the Title VII religious exemption applies). In materials distributed to candidates

for its internal medicine residency program, NYMH self‐identifies as a “secular

institution.” App. 340, 347 (“Founded in 1881, New York Methodist Hospital is

the oldest of the 78 hospitals that were founded by the United Methodist Church.

The Hospital, now a secular institution, is located in the Park Slope neighborhood

of Brooklyn, New York.” (emphasis added)). A NYMH webpage directed to

residency candidates also states that NYMH is “now a secular institution.” App.

353 (“New York Methodist Hospital, founded in 1881, is the oldest of the seventy‐

eight hospitals that were founded by the United Methodist Church. Now a secular

institution, the Hospital became affiliated with New York‐Presbyterian Hospital

and the Weill Cornell Medical College in 1993.” (emphasis added)).

8 16-474-cv Penn v. New York Methodist Hospital

In its mission statement, NYMH describes itself as “a non‐sectarian,

voluntary institution . . . [with] an historic relationship with the United Methodist

Church.” App. 67 (emphasis added).

The mission statement sets forth six “primary objectives:”

 To make services accessible to patients and physicians without regard to age, sex, race, creed, national origin, or disability;  To provide patients with an environment that assures the continuous enhancement of patient safety;  To provide an active ecumenical program of pastoral care and to conduct a clinical pastoral education program;  To offer an environment that is responsive to new and changing technologies and management principles that will stimulate creative solutions for our patients, physicians and employees;  To assess periodically the healthcare needs of the community and to respond to those these needs with healthcare services, including health education for patients and community residents;  To work with members of the New York‐Presbyterian Healthcare System and other healthcare institutions, physicians and community groups in jointly pursuing the delivery of quality healthcare services, medical education and clinical research.

In describing its primary objectives, NYMH’s mission statement does not

refer to the United Methodist Church or Methodism. Only one of the six objectives

9 16-474-cv Penn v. New York Methodist Hospital

contains any reference to religion, the reference to the pastoral care department.

However, the pastoral care department, according to the mission statement, is

“ecumenical,” i.e., not Methodist.

Indeed, the description of the Department of Pastoral Care on NYMH’s

website does not mention the Methodist faith. The purpose of the Department is,

according to NYMH’s website, “[t]o see that the needs of the whole person—mind

and spirit as well as body—are met.” App. 356. The Department is “an essential

feature of NYM’s holistic approach to healthcare.”

Chaplains at NYMH “can

come from any faith tradition,” and “will visit all patients on their assigned units

regardless of their patients’ religious affiliations.”

If patients have faith‐specific

needs, the Department is “ready to connect patients and their families with the

specific rituals and services offered by their particular faith group.”

For

example, the Department can “arrange for a Roman Catholic Eucharistic minister

to bring communion . . . or . . . to perform an anointing of the sick.”

Three

places of worship are available at the hospital: a Christian chapel, a Jewish prayer

room, and a Muslim prayer room.

None of the three full‐time chaplains of the Hospital’s Department of

Pastoral Care are Methodist. Defendant Peter Poulos, its Director, is Greek

10 16-474-cv Penn v. New York Methodist Hospital

Orthodox. The second is a rabbi, and the third a non‐Methodist Protestant. If the

Department were in fact Methodist‐oriented, one would expect its director to be

Methodist, or for at least one of its permanent chaplains to be Methodist.

Finally, the Department runs a Clinical Pastoral Education (“CPE”)

residency program to train chaplains, typically training between three and six

residents at a time. Between 2008 and 2011, Poulos hired 23 residents into the CPE

program. Of those 23, only one was Methodist.

In sum, NYMH’s mission and operations are not “marked by clear or

obvious religious characteristics.” Shaliehsabou,

. While many

religious hospitals, schools or other entities could certainly qualify as religious

institutions and receive the protections of the ministerial exception, NYMH is no

longer such a religious institution.

This case is easily distinguishable from those in other circuits where courts

have applied the ministerial exception to bar suits by employees of entities related

to religious institutions.

For example, in Scharon v. St. Luke’s Episcopal Presbyterian Hosps., the Eighth

Circuit decided that St. Luke’s, “a church‐affiliated hospital,” was entitled to

invoke the ministerial exception in an age and sex discrimination case brought by

11 16-474-cv Penn v. New York Methodist Hospital

a former member of the hospital’s Department of Pastoral Care.

929 F.2d 360

, 361–

63 (8th Cir. 1991). St. Luke’s Board of Directors “consist[ed] of four church

representatives and their unanimously agreed‐upon nominees,” and “its Articles

of Association [could] be amended only with the approval of the Episcopal

Diocese of Missouri of the Protestant Episcopal Church in the United States of

America and the local Presbytery of the Presbyterian Church.”

Id. at 362

. The

plaintiff, an ordained Episcopal priest employed as a chaplain at the hospital, was

fired—“with the advice and consent of the Episcopal Bishop”—for “violating

several canonical laws.”

Id. at 361

In Shaliehsabou, the Fourth Circuit concluded that a Jewish nursing home—

the Hebrew Home of Greater Washington—was a religious institution for the

purposes of the ministerial exception to the Fair Labor Standards Act, which it

deemed to be “coextensive” with the ministerial exception.

363 F.3d at 306

. The

nursing home’s mission, “according to its By‐Laws, [was] to serve aged of the

Jewish faith in accordance with the precepts of Jewish law and customs, including

the observance of dietary laws.”

Id. at 301

(internal quotation marks omitted). The

In Hollins v. Methodist Healthcare, cited by the majority as another case where a hospital 5

was allowed to invoke the ministerial exception, the issue of whether the hospital was a religious institution was expressly not before the court; the plaintiff had forfeited the right to argue that the hospital was not.

474 F.3d 223, 226

(6th Cir. 2007).

12 16-474-cv Penn v. New York Methodist Hospital

home maintained a synagogue onsite with twice daily services, each resident’s

room had Jewish religious items in it, and it maintained an entirely kosher food

preparation process.

The plaintiff—an orthodox Jewish man—supervised the

preparation of the kosher food as a mashgiach.6

Id. at 301

In Conlon v. Intervarsity Christian Fellowship, the Sixth Circuit held that “an

evangelical campus mission serving students and faculty on college and university

campuses nationwide” was entitled to invoke the ministerial exception.

777 F.3d 829, 831

(6th Cir. 2015). The group’s “vision [was] to see students and faculty

transformed, campuses renewed and world changers developed,” and its purpose

“[was] to establish and advance at colleges and universities witnessing

communities of students and faculty who follow Jesus as Savior and Lord:

growing in love for God, Godʹs Word, Godʹs people of every ethnicity and culture

and Godʹs purposes in the world.”

Additionally, the group “believe[d] in the

sanctity of marriage and desire[d] that all married employees honor their marriage

vows.”

The plaintiff, a “spiritual director” of the group, had been terminated

for contemplating divorce from her husband.

Id. at 832

. Divorce violated the

policy of the group requiring all married employees to “honor their marriage

6 A mashgiach is an inspector who ensures that Jewish dietary laws are followed. Id. at 301. 13 16-474-cv Penn v. New York Methodist Hospital

vows.” Id. at 831. The court found dispositive to the “religious organization”

inquiry that the group’s purpose was, as the court explained it, “to advance the

understanding and practice of Christianity in colleges and universities.” Id. at 834.

In contrast, neither Methodist doctrine nor Methodist Church leadership

have a significant role at NYMH. While NYMH may still have some limited

religious aspects—for example, Board meetings begin with a prayer and all

employees are reminded that “patients are human beings who are created in [the]

image of God,” App. 51 (alteration in original),—it is not nearly as pervasively

religious as entities that other Courts of Appeals have deemed sufficiently

religious to warrant application of the ministerial exception.

While NYMH began as a Methodist hospital, it no longer is; it is a modern,

secular hospital that serves a diverse group of patients in Brooklyn. Indeed, the

majority acknowledges that Methodism does not “infuse [NYMH’s] performance

of its secular duties” or “pervade its work as a healthcare organization.” Slip Op.

at 22. Nevertheless, the majority concludes that NYMH is a religious institution

by focusing its analysis solely on the Department of Pastoral Care and Penn’s role

in it, noting that “[Penn] does not and cannot dispute that he performed religious

services for [the Department].” Slip Op. at 24.

14 16-474-cv Penn v. New York Methodist Hospital

I conclude that this focus on the work that Penn did, and on the Department

of Pastoral Care, rather than on NYMH as a whole, is incorrect. The district court

adopted a similar focus, referring to it as the “sliding scale” approach. The district

court reasoned that

[t]he ministerial exception should be viewed as a sliding scale, where the nature of the employer and the duties of the employee are both considered in determining whether the exception applies. . . . [T]he more pervasively religious an institution is, the less religious the employeeʹs role need be in order to risk first amendment infringement.” On the other hand, where an employeeʹs role is extensively religious, a less religious employer may still create entanglement issues.

Penn v. New York Methodist Hosp.,

158 F. Supp. 3d 177, 182

(S.D.N.Y. 2016) (first

alteration in original) (quoting Musante v. Notre Dame of Easton Church, No. CIV.A.

301CV2352,

2004 WL 721774

, at *6 (D. Conn. Mar. 30, 2004)). The district court

concluded that “[i]n light of Plaintiffʹs exceedingly ministerial role, application of

the ministerial exception to a less religious institution may be warranted.”

Id.

The origin of the “sliding scale” approach appears to be the district court’s

opinion in Musante. In Musante, the plaintiff’s employer was a Catholic church in

the Diocese of Bridgeport.

2004 WL 721774

, at *1. As the church was obviously a

religious institution, the only question before the district court was whether the

plaintiff, a lay person but the “Director of Religious Education . . . and Pastoral

15 16-474-cv Penn v. New York Methodist Hospital

Assistant” for the church, was a “minister” for purposes of the ministerial

exception.

Id.

It was in the context of answering this question—not determining

whether the employer was a religious institution—that the district court noted that

“the ministerial exception should be viewed as a sliding scale, where the nature of

the employer and the duties of the employee are both considered in determining

whether the exception applies.”

Id. at *6

. The district court noted that “as

employees of religious institutions such as churches and synagogues are likely to

be inherently involved in religious activity to a much greater degree than, for

example, employees of religiously affiliated hospitals or charitable institutions,

regardless of the nature of the employeesʹ specific responsibilities.”

Id.

(emphasis

added).

In support of its application of the sliding scale approach to determining

whether NYMH is a religious institution, the district court below also relied on

language from our decision in Rweyemamu v. Cote indicating that “[t]he more

‘pervasively religious’ the relationship between an employee and his employer,

the more salient the free exercise concern becomes.”

520 F.3d 198, 208

(2d Cir.

2008). However, this statement does not justify the application of a sliding scale

approach to determining whether an institution is religious. Rweyemamu used that

16 16-474-cv Penn v. New York Methodist Hospital

language in discussing when an employee “is functionally a ‘minister’” for

purposes of the ministerial exception, not whether the defendant there—the

Roman Catholic Diocese of Norwich—is religious.

In order for the ministerial exception to apply, two distinct conditions must

be met: the plaintiff must be a minister and the defendant must be a religious

institution. Indeed, “the exception does not apply to the religious employees of

secular employers or to the secular employees of religious employers.”

Shaliehsabou,

363 F.3d at 307

. Accordingly, no matter how religious the role of the

employee—indeed, even if the employee is in fact a minister performing religious

functions—the ministerial exception will not apply unless the employer is a

religious institution. While the sliding scale approach may be useful in

determining whether an employee is a “minister,” it has no application to

determining whether an institution is religious.

Penn and the other members of the Department of Pastoral Care are, at most,

“religious employees of [a] secular employer[].”

The presence of a non‐

sectarian chaplaincy department cannot transform an otherwise secular hospital

into a religious institution for purposes of the ministerial exception. If it could,

most hospitals would be exempt from anti‐discrimination laws, as most—even

17 16-474-cv Penn v. New York Methodist Hospital

clearly secular hospitals—have chaplaincy departments.7 Wendy Cage, et al., The

Provision of Hospital Chaplaincy in the United States: A National Overview, 101 S. Med.

J. 626, 62829 (2008). Moreover, the interfaith nature of the Department means

that it is not run according to the tenets of any particular religion, thereby reducing

the likelihood that evaluating the reasons for the termination of an employee such

as Penn would “plunge [a court] into a maelstrom of Church policy,

administration, and governance.” Rweyemamu,

Because there is insufficient evidence that NYMH’s “mission is marked by

clear or obvious religious characteristics,” Shaliehsabou,