700 F.3d 169 (5th Cir. 2012), 11-51151, Cannata v. Catholic Diocese of Austin

Docket Nº:11-51151.
Citation:700 F.3d 169
Opinion Judge:DENNIS, Circuit Judge:
Party Name:Philip CANNATA, Plaintiff-Appellant, v. CATHOLIC DIOCESE OF AUSTIN; St. John Neumann Catholic Church, Defendants-Appellees.
Attorney:Philip Cannata, Austin, TX, pro se. Steven Charles Levatino, Andrew Fairles MacRae, Levatino Pace, L.L.P., Austin, TX, for Defendants-Appellees. Leslie Griffin, University of Houston Law Ctr., Houston, TX, Francis Swineburne Ainsa, Jr., Ainsa Hutson, L.L.P., El Paso, TX, Mark E. Chopko, Stradley,...
Judge Panel:Before DAVIS, DENNIS and HAYNES, Circuit Judges.
Case Date:October 24, 2012
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 169

700 F.3d 169 (5th Cir. 2012)

Philip CANNATA, Plaintiff-Appellant,


CATHOLIC DIOCESE OF AUSTIN; St. John Neumann Catholic Church, Defendants-Appellees.

No. 11-51151.

United States Court of Appeals, Fifth Circuit.

October 24, 2012

Page 170

Philip Cannata, Austin, TX, pro se.

Steven Charles Levatino, Andrew Fairles MacRae, Levatino Pace, L.L.P., Austin, TX, for Defendants-Appellees.

Leslie Griffin, University of Houston Law Ctr., Houston, TX, Francis Swineburne Ainsa, Jr., Ainsa Hutson, L.L.P., El Paso, TX, Mark E. Chopko, Stradley, Ronon, Stevens & Young, L.L.P., Washington, DC, for Amici Curiae.

Appeal from the United States District Court for the Western District of Texas.

Before DAVIS, DENNIS and HAYNES, Circuit Judges.

DENNIS, Circuit Judge:

Philip E. Cannata brought suit against the Catholic Diocese of Austin and St. John Neumann Catholic Church (" Appellees" or " the church" ), alleging that the church terminated him in violation of the Age Discrimination in Employment Act (" ADEA" ) and the Americans with Disabilities Act (" ADA" ). The district court dismissed the suit based on the ministerial exception, which bars employment-discrimination suits by ministers against their churches. See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, __ U.S. __, 132 S.Ct. 694, 702-09, 181 L.Ed.2d 650 (2012) (affirming the existence of the ministerial exception).

This appeal presents the first opportunity for this court to address the ministerial exception in light of Hosanna-Tabor. Because we conclude that there is no genuine issue of material fact that the ministerial exception applies, and therefore bars Cannata's suit, we AFFIRM the judgment of the district court.



In 1998, Cannata became the Music Director at St. John Neumann Catholic

Page 171

Church. In this position, Cannata oversaw the Music Department's budget and expenditures, managed the sound systems at the church and maintained the sound equipment, music room, and music area in the sanctuary, and rehearsed with members of the choir and cantors and accompanied them on the piano during services while running the soundboard. Cannata only worked during the evening and on weekends, so the church hired his wife to perform the day-to-day responsibilities of the music program, Leonard Johnson as Choir Director, and Cannata's daughter to work with the children's choir. Furthermore, all of the liturgical responsibilities belonging to Cannata's predecessor were given to Judy Gesch, St. John Neumann's Business Manager, because Cannata lacked the requisite education, training, and experience. In August 2007, the parish pastor, Father Kirby Garner, fired Cannata.1


Cannata, proceeding pro se, brought suit against Appellees, alleging that his termination was in violation of the ADEA and the ADA. Appellees twice moved to dismiss on the basis that the ministerial exception barred Cannata's suit. Their first motion was denied by the district court because it concluded that not enough evidence had been developed to determine whether the ministerial exception applied. After further discovery, Appellees refiled their motion to dismiss and also moved for summary judgment. The district court granted Appellees' second motion to dismiss for lack of subject matter jurisdiction. Cannata timely appealed.


The district court granted Appellees' motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), which was considered appropriate under the law at the time. See McClure v. Salvation Army, 460 F.2d 553, 556 (5th Cir.1972). However, in Hosanna-Tabor, the Supreme Court ruled that " the [ministerial] exception operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar." 132 S.Ct. at 709 n. 4.2 Thus, although unclear at the time, the district court should have analyzed Appellees' motion to dismiss under Rule 12(b)(6).

Nonetheless, our review requires us to scrutinize the same materials we would have considered were the case properly before us on a 12(b)(1) motion. This case has been amply briefed and was disposed of after extensive discovery. Because the ministerial exception is not a jurisdictional bar and " because the court considered material outside the pleadings in deciding the motion, ‘ it should have converted the ...

Page 172

motion for dismissal into a Rule 56 motion for summary judgment.’ " 3 See Triplett v. Heckler, 767 F.2d 210, 212 (5th Cir.1985) (applying summary-judgment standard in reviewing the district court's dismissal in which the lower court erroneously considered a limitations defense to be a jurisdictional bar). Therefore, " we must scrutinize the record to determine whether it raises a genuine issue of material fact regarding the [affirmative defense.]" Id.

" We review a district court's grant of summary judgment de novo. " Estate of Bradley ex rel. Sample v. Royal Surplus Lines Ins. Co., 647 F.3d 524, 528 (5th Cir.2011). " The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED.R.CIV.P. 56(a). Initially, the moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). It is then up to the nonmoving party, going beyond the pleadings, to point to " specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. 2548 (internal quotation marks omitted). We examine the evidence in the light most favorable to the nonmoving party, Addicks Servs., Inc. v. GGP-Bridgeland, LP, 596 F.3d 286, 293 (5th Cir.2010), and draw any reasonable inferences in favor of that party, Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 507 (5th Cir.2003).




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. The Supreme Court has recognized the right of religious organizations to control their internal affairs. See Watson v. Jones, 80 U.S. 679, 727, 13 Wall. 679, 20 L.Ed. 666 (1872). This right includes the freedom " to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine," Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116, 73 S.Ct. 143, 97 L.Ed. 120 (1952), and the right of religious organizations to select their own leaders, Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 724-25, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976). Pursuant to this case law, the courts of appeals " uniformly recognized the existence of a ‘ ministerial exception,’ grounded in the First Amendment, that precludes application of [employment discrimination] legislation to claims concerning the employment relationship between a religious institution and its ministers." Hosanna-Tabor, 132 S.Ct. at 705 & n. 2 (collecting cases). In Hosanna-Tabor, a unanimous Supreme Court, addressing the issue for the first time, " agree[d] that there is such a ministerial exception." Id. at 706.


The Court held that the " Religion Clauses bar the government from interfering with the decision of a religious group to fire one of its ministers." Id. at 702. The Courts that:

Requiring 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.

Page 173

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.

Id. at 706.

Having confirmed the existence of the ministerial exception, the Court determined that, under the circumstances of the case, it barred an employment-discrimination suit by a " called" teacher, Cheryl Perich, against the church that had terminated her. Id. at 707. Although the Court agreed that the exception " is not limited to the head of a religious congregation," it eschewed a " rigid formula" in determining when an employee is a minister within the meaning of the ministerial...

To continue reading