Madsen v. Erwin

481 N.E.2d 1160, 395 Mass. 715, 1985 Mass. LEXIS 1691, 120 L.R.R.M. (BNA) 2408, 38 Fair Empl. Prac. Cas. (BNA) 1466

• Court: Massachusetts Supreme Judicial Court
• Decided: August 21, 1985
• Status: Published

Opinions

Nolan, J.

The plaintiff, Christine Madsen, commenced this action for declaratory and injunctive relief and for money damages after her employment as a writer for The Christian Science Monitor (Monitor) was terminated. In sum, her complaint alleges “wrongful discharge, defamation, invasion of privacy, intentional infliction of mental distress, sexual and affectional preference discrimination, and breach of fiduciary responsibilities under deeds of trust, by defendants against [Madsen,] a lesbian employee of The Christian Science Monitor and a member of the Christian Science Church.” It is a broad brush complaint which in its prologue invokes the Massachusetts civil rights statutes, G. L. c. 12, §§ 11H, 111, G. L. c. 214, § IB (invasion of privacy), “the common law of the Commonwealth of Massachusetts, the Constitution of the Commonwealth of Massachusetts, and the Constitution of the United States.” All defendants except the one unnamed defendant filed a “Motion to Dismiss And/Or For Summary Judgment” under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), and 56, 365 Mass. 824 (1974). The motion was accompanied by a brief and affidavits. A judge of the Superior Court denied this motion, without issuing a written order or memorandum. The defendants subsequently filed a motion to report this interlocutory decision for appellate review under Appeals Court Rule 2:01, as amended, 3 Mass. App. Ct. 805 (1975). A single justice of the Appeals Court, treating this motion as a petition for leave to file and enter an appeal from the denial of the defendants’ motion to dismiss or for summary judgment, allowed the petition and stayed proceedings in the Superior Court pending disposition of the appeal. We took the case on our own motion. We reverse the judge’s denial of the defendants’ motion for summary judgment with respect to the plaintiff’s claims against the defendants under the Federal and State Constitutions, under G. L. c. 12, § 111, her claim for breach of contract and for wrongful discharge. We affirm the judge’s action with respect to the remaining claims.

The defendants, in their motion and accompanying memorandum, sought dismissal of the plaintiff’s claims under rule 12 (b) (6). Alternatively, they requested that their motion be treated as one for summary judgment, under rule 56, with respect to those claims for which consideration of matters outside of the pleadings, including the affidavits accompanying the motion, became necessary. We consider the defendants’ motion as one for summary judgment as to certain counts as well as for dismissal under rule 12 (b) (6) as to other counts, and review the judge’s denial of this motion.

It would be helpful to summarize the facts underlying this appeal. In June, 1974, the plaintiff began employment with the Monitor as a “copygirl.” Over the next several years, Mad-sen received several promotions and salary increases. Beginning in September, 1981, Madsen held a writing position (Correspondent A) in the special sections department of the Monitor.

In December, 1981, Madsen learned that rumors concerning her sexual predilection were being circulated at the Monitor. Subsequently, Madsen was informed that her superiors had learned of allegations that Madsen was a homosexual, had entered into a “homosexual marriage,” had attempted to entice a manager’s wife into a homosexual relationship, attended meetings of homosexuals, and lived with a homosexual. Madsen was not told the name of the person who provided this information to the editors of the Monitor. In response, Madsen denied the allegations that she had entered into a “homosexual marriage,” had attempted to entice a manager’s wife into a homosexual relationship, attended meetings of homosexuals and lived with a homosexual. She did state, however, that she was “gay.”

On January 4, 1982, the Monitor terminated Madsen’s employment. The plaintiff alleges that she has been unable to obtain comparable employment as a writer or editor since she left the Monitor. She further claims that the defendants’ actions proximately caused her to suffer extreme mental distress, loss of earning capacity, loss of respect and reputation, and other injuries to body and mind.

The defendants argue on appeal that the judge erred in failing to dismiss the complaint, because (1) pursuit of the litigation and granting the requested relief would violate the free exercise and establishment of religion clauses of the First Amendment to the United States Constitution; (2) the plaintiff’s Federal and State constitutional claims are without foundation, because the complaint does not contain adequate allegations of State action; (3) in the plaintiff’s claim under G. L. c. 12, § 111, the complaint does not allege threats, intimidation, coercion, or supporting constitutional or statutory violations; (4) the plaintiff’s claim under G. L. c. 214, § IB, is faulty because the defendants’ inquiries were reasonable as a matter of law; (5) claims against individual defendants are without merit, because the complaint does not contain factual allegations against them; (6) the plaintiff’s common law claims are without force, because the defendants’ conduct was not unlawful or wrongful and therefore does not provide a basis for liability under any contract or tort theory; (7) the plaintiff’s common law claims are illusory, because the complaint fails to state facts upon which relief can be granted.

1. Motion for summary judgment. Initially, we note that a judge presented with a motion for summary judgment must consider “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any” in determining whether summary judgment is appropriate. Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974). The burden on the moving party is to “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Id.

Further, “[wjhen a motion for summary judgment is made and supported ... an adverse party may not rest upon the mere allegations of denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” Mass. R. Civ. P. 56 (e). See Community Nat’l Bank v. Dawes, 369 Mass. 550, 554 (1976). Moreover, rule 56 (e) provides that affidavits used to support or oppose a summary judgment motion “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Mass. R. Civ. P. 56 (e) (emphasis added). The requirements of rule 56 (e) are mandatory. Jameson v. Jameson, 176 F.2d 58, 60 (D.C. Cir. 1949). 10A C.A. Wright & A.R. Miller, Federal Practice and Procedure § 2738, at 467 (2d ed 1983).

We turn first to the issue whether the Monitor is a religious activity of the Christian Science Church. The defendants submitted the affidavits of Warren D. Silvemail, personnel manager of the Church, in support of their motion. The affiant averred that “[t]he Church’s personnel office [was] in charge of the personnel functions at the Church and its religious activities including The Christian Science Publishing Society which publishes the Christian Science Monitor”; that a memorandum regarding sexual morality “was distributed on or about August 8, 1974 to all Church employees, including those working for The Christian Science Monitor”; and that an employee badge was “issued to and worn by the plaintiff during her employment by the Church.” Accompanying the affidavits were, inter alla, authenticated copies of the plaintiff’s application for employment to the “First Church of Christ, Scientist in Boston, Massachusetts”; of portions of the Employee Flandbook, providing, in relevant part, that “the policy of The Mother Church [is] to employ only members of the Church in all of its activities, including The Christian Science Publishing Society . . .”; and of the plaintiff’s employee badge labelled “The First Church of Christ, Scientist, Boston.”

In opposition to the defendants’ motion, the plaintiff submitted counter affidavits including that of Susan D. Schur who stated the following: “3. On or about January 27, 1983 I received a solicitation letter from A.W. Phinney, Committee on Publication for Massachusetts, The First Church of Christ, Scientist, in Boston, Massachusetts, in due course of mail at my residence address; . . . 5. It is my understanding that The Christian Science Monitor is not an organ of The First Church of Christ, Scientist, in Boston, Massachusetts, on the basis of said solicitation.” The attached solicitation letter contained the statement that the Christian Science Monitor was “not a church organ, . . . but rather an international daily newspaper that touches on all the vital issues of the day.”

Evaluating these affidavits in light of the unambiguous guidelines of rule 56 (e), we conclude that the judge below would not have been warranted in finding that a genuine issue of fact existed as to whether the plaintiff was employed by The Christian Science Church. The defendants’ affidavits gave rise to the reasonable inferences that the plaintiff applied for employment to the Church, that the Monitor was an arm of the Church, and that the plaintiff, although a writer for the Monitor, was, in fact, an employee of the Church. The plaintiff wore a badge stating she was a Church employee. The counter affidavits failed to allege facts made on personal knowledge that the plaintiff was not a Church employee. The plaintiff herself did not contradict the fact she was a Church employee in her affidavit.

Hearsay in an affidavit is unacceptable to defeat summary judgment. See, e.g., Neely v. St. Paul Fire & Marine Ins. Co., 584 F.2d 341, 344 (9th Cir. 1978); Kern v. Tri-State Ins. Co., 386 F.2d 754, 756 (8th Cir. 1967). The rationale for requiring admissible evidence in affidavits is to ensure that “trial would [not be] futile on account of lack of competent evidence.” Kern v. Tri-State Ins. Co., supra. “Conclusory statements, general denials, and factual allegations not based on personal knowledge [are] insufficient to avoid summary judgment.” Olympic Junior, Inc. v. David Crystal, Inc., 463 F.2d 1141, 1146 (3d Cir. 1972). “All affidavits or portions there of made on information and belief, as opposed to personal knowledge, are to be disregarded in considering a motion for summary judgment.” Shapiro Equip. Corp. v. Morris & Son Constr. Corp., 369 Mass. 968 (1976), citing Automatic Radio Mfg. Co. v. Hazeltine Research, Inc., 339 U.S. 827, 831 (1950).

Clearly, therefore, the judge properly could have excluded the contents of Schur’s affidavit in considering the motion. However, the defendants did not move to strike the improper portions of Schur’s affidavit. “If a party does not move to strike the defective portion of an opponent’s affidavit, in his discretion a judge may rely on the fact stated on belief.” Stetson v. Selectmen of Carlisle, 369 Mass. 755, 763 n.12 (1976). We do not know whether the judge relied upon Schur’s affidavit in ruling on the motion, yet we need not decide whether consideration of the affidavit would have constituted an abuse of discretion. Even if the contents of Schur’s affidavit were properly before the judge, the material submitted by the plaintiff failed to establish a genuine issue of fact. A vague statement that the Monitor is “not an organ” of the Church was insufficient to rebut the clear inference created by Silvemail’s affidavit that the Monitor is a religious activity of the Church.²

The issue before us, therefore, is whether the defendants were entitled to judgment as a matter of law on the basis of the undisputed fact that the plaintiff was employed by the Church. The plaintiff’s central allegation is that her employment was terminated because of her sexual preference and refusal to “[seek] healing” through the Church.³ The defendants’ affidavits established “[t]hat homosexuality is a deviation from the moral law” as expounded by Christian Science, and that it is expected that every employee of the Church will uphold the Church’s requisite standard of sexual morality.

Courts cannot question the verity of religious doctrines or beliefs. United States v. Ballard, 322 U.S. 78, 86 (1944). Beyond that, a court must defer to the Church in matters of ecclesiastical decisons. Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 709 (1976). United Kosher Butchers Ass’n v. Associated Synagogues of Greater Boston, Inc., 349 Mass. 595, 598-599 (1965). On the affidavits, the decision to fire Madsen because of her sexual preference can only be construed as a religious one, made by a Church as employer. Thus, we must defer to that decision. “[C]ivil courts are bound to accept the decisions of the highest judicatories of a religious organization of hierarchical polity on matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law.” Serbian E. Orthodox Diocese, supra at 713.

In Walker v. First Presbyterian Church, 22 Fair Empl. Prac. Cas. (BNA) 762, 764 (Cal. Super. Ct. 1980), the plaintiff was discharged as church organist when he admitted his homosexuality and refused to repent. The judge concluded that if the plaintiff “were allowed to collect damages from defendants because he was discharged for being gay, defendants would be penalized for their religious belief that homosexuality is a sin for which one must repent .... It forces defendants to pay general and special damages, plus punitive damages, to maintain their religious beliefs. This is a substantial burden on defendants’ right to free exercise of religion.” Id. Similarly, the plaintiff in Lewis ex rel. Murphy v. Buchanan, 21 Fair Empl. Prac. Cas. (BNA) 696 (Minn. Dist. Ct. 1979), sought damages when an offer of employment as a parochial school teacher was withdrawn after the pastor received information that the plaintiff “was of a homosexual nature.” The judge would not enforce an ordinance forbidding employment discrimination on the basis of “affectional or sexual preference” against the pastor. The judge reasoned that “the religious conscience of an individual may not be invaded except where the individual’s conduct constitutes a ‘clear and present danger to a substantial interest of the state’ or a ‘menace to public peace and order.’ [Cantwell v. Connecticut,] 310 U.S. 296, 311 (1940). The desire of a city government to protect the employ-ability of homosexuals is not such a clear and present danger to a ‘substantial interest of the state’ as to justify the invasion of an individual’s freedom of conscience which is proposed here.” Id. at 698.

One commentator has described the relationship between a church and its employees as follows: “The free exercise of religion includes the right to run large religious institutions — certainly churches, seminaries, and schools, and . . . hospitals, orphanages, and other charitable institutions as well. Such institutions can only be run through employees. It follows at the very least that the free exercise of religion includes the right of churches to hire employees. It surely also follows that the churches are entitled to insist on undivided loyalty from these employees. The employee accepts responsibility to carry out part of the religious mission. . . . [C]hurches rely on employees to do the work of the church and to do it in accord with church teaching. When an employee agrees to do the work of the church, he must be held to submit to church authority in much the same way as a member. . . . The state may not intervene to protect employees from treatment that is merely arbitrary or unfair; the remedy for that is to resign or renegotiate the terms of employment. Modem labor legislation may have deprived secular employers of the fiduciary duty once owed them by their rank and file employees, but to deprive the churches of that duty would be to interfere with an interest protected by the free exercise clause.” Laycock, Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy, 81 Colum. L. Rev. 1373, 1408-1409 (1981).

In view of the preferred position which the freedom of religion holds in the pantheon of constitutional rights, see Murdock v. Pennsylvania, 319 U.S. 105,115 (1943), Madsen’s asserted rights must yield. Therefore, her claims against the Church under the Federal and State Constitutions, under G. L. c. 12, § 111, and her claim for breach of contract must fall. Entanglement of the defendants in such litigation would involve the court in a review of an essentially ecclesiastical procedure whereby the Church reviews its employees’ spiritual suitability for continued employment. That is impermissible under the First Amendment. “The First Amendment has a dual aspect. It not only ‘forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship’ but also ‘safeguards the free exercise of the chosen form of religion. ’ ” United States v. Ballard, supra at 86, quoting Cantwell v. Connecticut, 310 U.S. at 303. Furthermore, if Madsen “were allowed to collect damages from defendants because [she] was discharged for being gay, defendants would be penalized for their religious belief that homosexuality is a sin for which one must repent. . . .” Walker, supra at 764. Requiring the defendants to pay damages to maintain their religious beliefs would constitute “a substantial burden on defendants’ right to free exercise of religion.” Id.

There is nothing in the very recent case of Tony & Susan Alamo Found, v. Secretary of Labor, 471 U.S. 290 (1985), which militates against our conclusions in this case because in making the minimum wage, overtime, and recordkeeping requirements of the Fair Labor Standards Act, 52 Stat. 1060, as amended, 29 U.S.C. § 201 et seq., applicable to the commercial activities of a religious foundation like the Tony and Susan Alamo Foundation, the Court did nothing to burden or punish the foundation’s exercise of religious beliefs or to exact a penalty for religious beliefs.

The Monitor, as Madsen’s employer, had the right to terminate Madsen’s employment. Nothing in the United States Constitution, the Massachusetts Constitution, or in Federal or State statutes⁴ prohibits the Monitor from doing this on the facts in this case. She had no written employment contract. She received severance and vacation pay. There has been no showing of bad faith as exemplified in Fortune v. National Cash Register Co., 373 Mass. 96, 103 (1977), and in RLM Assocs. v. Carter Mfg. Corp., 356 Mass. 718 (1969). There is no suggestion that Madsen’s discharge deprived her of future compensation for past service as was the case in Gram v. Liberty Mut. Ins. Co., 384 Mass. 659, 671-672 (1981). There is no legal basis then for Madsen’s claim for wrongful discharge, breach of contract, and deprivation of constitutional rights by her termination. For the same reasons, Madsen has failed to demonstrate that she was deprived of her civil rights under G. L. c. 12, §§ 11H, 111, because, as already pointed out, the Monitor had a right to discharge her. Thus, we conclude that the defendants’ motion for summary judgment should have been allowed as to these claims.

2. Motion for dismissal under Mass. R. Civ. P. 12 (b) (6). Because the affidavits do not relate to the remaining claims, we evaluate those claims under rule 12 (b) (6). The relevant question becomes: Does it appear “beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief?” Nader v. Citron, 372 Mass. 96, 98 (1977), quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The remaining claims are those for defamation, interference with advantageous relations, interference with the plaintiff’s employment contract, invasion of privacy, and intentional infliction of emotional distress. We analyze the plaintiff’s complaint to determine whether she has stated a cause of action against the various defendants with respect to each of these torts. We also consider whether the complaint affords the defendants sufficient notice of the causes of action, as required by Mass. R. Civ. P. 8, 365 Mass. 749 (1974). See Charbonnier v. Amico, 367 Mass. 146, 152-153 (1975).

The allegations of the complaint do not survive attack by motion to dismiss. However, we think that the plaintiff should be given the opportunity to replead her claims for the above recited torts in the light of the following principles.

Without retreating for a moment from the foundational rule “that the First Amendment prohibits civil courts from intervening in disputes concerning religious doctrine, discipline, faith, or internal organization,’’ Alberts v. Devine, ante 59,72 (1985), and cases cited therein, we restate the equally important rule that the rights of religion are not. beyond the reach of the civil law. See Reynolds v. United States, 98 U.S. 145, 164 (1878). Under the banner of the First Amendment provisions on religion, a clergyman may not with impunity defame a person, intentionally inflict serious emotional harm on a parishioner, or commit other torts. The First Amendment religion provisions contain two concepts, “freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society.” Cantwell v. Connecticut, 310 U.S. 296, 303-304 (1940). The torts of which Madsen complains are conduct and hence, they are subject to regulation. We recognize that the defendant may be able to interpose defenses or qualified privileges, but these are generally not raised by motion to dismiss under rule 12 (b) (6).

3. Summary. The defendants’ motion for summary judgment as to Madsen’s claims under the Federal and State Constitutions, as to her claim of civil rights violation under G. L. c. 12, § 111, and as to her claims for breach of contract and for wrongful discharge should have been allowed, and, accordingly, we direct the entry of judgment for the defendants as to these claims. As to the tort claims of defamation, interference with advantageous relations, interference with her employment contract, invasion of privacy, and infliction of emotional distress, we direct that Madsen be permitted to amend her complaint by pleading anew these torts in a manner consistent with the principles set forth in this opinion.

So ordered.

2 Our conclusion on the status of the Monitor is, of course, strictly limited to the case before us. It is clear that “[n]ot every enterprise cloaking itself in the name of religion can claim the constitutional protection conferred by that status.” Van Schaick v. Church of Scientology of Cal., Inc., 535 F. Supp. 1125, 1144 (D. Mass. 1982), quoting Founding Church of Scientology v. United States, 409 F.2d 1146, 1160 (D.C. Cir.), cert. denied, 396 U.S. 963 (1969). “[N]ot every endeavor that is affiliated, however tenuously, with a recognized religious body may qualify as a religious activity of that body and come within the scope of the protection from governmental involvement that is afforded by the First Amendment.” Feldstein v. Christian Science Monitor, 555 F. Supp. 974, 978 (D. Mass. 1983). The affidavits in this action, however, establish “that the Monitor is itself a religious activity of a religious organization, albeit one with a recognized position and an established reputation in the secular community.” Id.

3 Although at oral argument the plaintiff did not concede that the only reason for her termination was that she was a homosexual, the papers before the judge on the motion for summary judgment gave no hint of any other reason. “Pleadings must stand or fall on their own. Oral representations and extraneous materials not incorporated by reference can neither add to nor detract from them.” Mmoe v. Commonwealth, 393 Mass. 617, 620 (1985).

4 See Macauley v. Massachusetts Comm’n Against Discrimination, 379 Mass. 279, 281-282 (1979) (G. L. c. 151B, § 4, [1], which proscribes employment discrimination based on sex, does not include discrimination based upon sexual preference; therefore MCAD does not possess jurisdiction over such complaints); see also Voyles v. Ralph K. Davies Medical Center, 403 F. Supp. 456, 457 (N.D. Cal. 1975), affd, 570 F.2d 354 (9th Cir. 1978) (in enacting Title VII of the Civil Rights Act of 1964, Congress did not consider situations involving trans-sexuals when banning employment practices based upon sex); Smith v. Liberty Mut. Ins. Co., 395 F. Supp. 1098, 1101 (N.D. Ga. 1975), aff’d, 569 F.2d 325 (5th Cir. 1978) (Title VII does not forbid discrimination based upon “affectional or sexual preference”).