Assemany v. Archdiocese of Detroit

• Decision Date: 31 January 1989
• Docket Number: Docket No. 99252
• Citation: 173 Mich.App. 752,434 N.W.2d 233
• Parties: , 49 Fair Empl.Prac.Cas. (BNA) 169 George P. ASSEMANY, Plaintiff-Appellant, v. ARCHDIOCESE OF DETROIT, Gesu Parish and Father James Serrick, Defendants- Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 233

434 N.W.2d 233

173 Mich.App. 752, 49 Fair Empl.Prac.Cas. (BNA) 169

George P. ASSEMANY, Plaintiff-Appellant, v. ARCHDIOCESE OF DETROIT, Gesu Parish and Father James Serrick, Defendants- Appellees.

Docket No. 99252.

Court of Appeals of Michigan.

Submitted Oct. 3, 1988.

Decided Dec. 20, 1988.

Released for Publication Jan. 31, 1989.

Susan Winshall & Associates, P.C. by Cathy E. Radner, Southfield, for plaintiff-appellant.

Bodman, Longley & Dahling by Joseph A. Sullivan, Karen L. Piper and Kim Michael Lavalle, Detroit, for defendants-appellees.

Before DOCTOROFF, P.J., and SHEPHERD and LAMB, ^* JJ.

DOCTOROFF, Presiding Judge.

Plaintiff appeals as of right from an order granting defendants' motion for summary disposition and denying plaintiff's cross-motion for summary disposition. MCR 2.116(C)(10). The trial court held that plaintiff's claims under the Civil Rights Act, M.C.L. Sec. 37.2101 et seq.; M.S.A. Sec. 3.548(101) et seq., were barred by application of the free exercise clause of the First Amendment. We affirm.

Defendant Gesu is a Roman Catholic church lying within the ecclesiastical jurisdiction of the Archdiocese of Detroit. Plaintiff is a sixty-one-year-old white male. In 1945, he graduated from Palestrina Institute of Ecclesiastical Music, a school operated by the archdiocese to train organists. Plaintiff worked for several Catholic parishes in the Detroit area as an organist.

In 1968, the then-pastor of Gesu, Father Swarcz, offered plaintiff a position as Gesu's musical director. Plaintiff stated that he was given oral assurance of lifetime employment as long as he did his job properly. Although plaintiff testified that a contract was signed when he first began employment with Gesu, the earliest contract on record covers the period from July 1, 1974, to 1977. It outlined plaintiff's responsibilities as musical director. The contract provided, in part:

"The Music Director will be, in conjunction with the Parish Worship Committee, completely responsible for all liturgical music in the parish, and all music connected with paraliturgical services, such as bible vigils, vespers, penance services, etc."

In addition, in collaboration with the worship committee, plaintiff was to select, prepare, and teach suitable and appropriate music to the congregation, prepare music fitting to the theme of each Sunday and holy day liturgy, provide music for the daily masses, select music for and direct the parish choir, aid in the musical participation of Gesu students in their liturgies, assist with and participate in liturgies or musical events on a vicariate level and provide music for weddings and funerals. He was required to be present fifteen minutes in advance of any liturgy or parish activity in which he was to participate. Plaintiff's salary was $11,375, plus separate remuneration for providing organ music at weddings.

When the 1974-77 contract expired, plaintiff and Gesu entered into another three-year contract in which plaintiff was again employed as Gesu's musical director. His salary was increased to $12,853.75. His duties were identical to those under the 1974-77 contract. In addition, plaintiff assumed the duties of teaching the school children at Gesu to participate in daily mass and conducting a children's choir. Plaintiff stated that he handled all of the musical functions for the parish liturgies.

Father James Serrick became associate pastor of Gesu in 1977. In 1980, he became its pastor. Unlike Gesu's former pastors, Father Serrick was a vocal critic of plaintiff. In 1978, Father Serrick outlined his criticisms of plaintiff in a four-page letter to plaintiff. In that letter, Father Serrick criticized plaintiff's playing ability ("less than mediocre"), his failure to arrive at church fifteen minutes before church services, his failure to attend worship committee meetings at which, according to Father Serrick, plaintiff should be a "key person," his "imposing" (rather than "invitational") playing style, and his failure to effectively lead the congregation during church services. Father Serrick suggested that plaintiff attend workshops on organ techniques or take lessons. Father Serrick was also critical of plaintiff's performance in leading the parish choir:

"Then there is the matter of the 'performing' or the 'ministerial' choir. I fully realize that a choir has to be challenged musically. But I think our choir needs help and insight so that the members see themselves as having a significant liturgical (rather than performing) role. They need greater leadership in the area of establishing a prayerful atmosphere so that, more and more, they inspire and lead the prayer of the congregation when appropriate."

In 1980, plaintiff signed a one-year contract as Gesu's music director, beginning July 1, 1980. The contract specified certain areas which needed improvement. Plaintiff was expected to exercise "pastoral-liturgical leadership" of the choir. He was required to take music lessons and attend workshops to improve his playing ability. He was to develop a program to prepare the children to sing at the Saturday afternoon and early Sunday services. The remaining responsibilities were essentially unchanged from the earlier contracts.

Father Serrick's dissatisfaction with plaintiff continued and, on January 28, 1981, Father Serrick informed plaintiff that his contract would not be renewed. Plaintiff alleged that, at a meeting between Father Serrick and the choir, Father Serrick stated that Gesu needed a younger and black organist. Plaintiff testified that Father Serrick personally told plaintiff that he was too old for the job and that Gesu was becoming a black parish and it was time it had a black organist.

Father Serrick notified the parish council and choir of his decision by letter on January 29, 1981. The council and choir opposed Father Serrick's decision. Thus, plaintiff's contract was renewed for a one-year period which began on September 27, 1981.

The 1981-82 contract represented a significant change in plaintiff's job duties. Plaintiff was given the new title of pastoral musician. The contract incorporated a job description for that position. Plaintiff was relieved of his responsibilities to teach music to children in the Gesu school and to direct the children's choir. He was in charge of the liturgical music of the parish and its performance. In addition, plaintiff was to develop a cantor program at Gesu in accordance with the guidelines of the archdiocesan program for cantors. Plaintiff's salary was reduced to $10,000 with certain fringe benefits. Both parties had the unrestricted right to terminate the agreement at will upon sixty days notice in writing. The contract contained an integration clause wherein it was agreed that this contract superseded any and all prior employment agreements and understandings between the parties.

Gesu simultaneously hired a younger white man to teach music to Gesu students, direct the children's choir and play music for the daily mass. When that teacher resigned in February, 1982, plaintiff requested that he be permitted to resume these responsibilities for an increase in salary. Instead, in May, 1982, Gesu hired Carl Clendenning, a twenty-eight-year-old black male, for the position of worship coordinator and to work with the school children.

In August, 1982, plaintiff filed a discrimination charge against Gesu with the Michigan Department of Civil Rights. While this was pending, Gesu and plaintiff negotiated a contract for the period from December 1, 1982, to November 30, 1983, similar to the 1981-82 contract.

In February, 1983, the Michigan Department of Civil Rights proposed a settlement of plaintiff's discrimination charge. Gesu would renegotiate plaintiff's 1982-83 contract and plaintiff would drop the charges against Gesu. Plaintiff withdrew the charge but the contract was not renegotiated.

In a letter dated September 30, 1983, plaintiff was informed that his employment would not be continued beyond the expiration of the 1982-83 contract. Gesu appointed Clendenning as its pastoral musician after plaintiff's departure. Clendenning was ultimately given the position of music director.

On appeal, plaintiff argues that the trial court erred in granting summary disposition because a factual dispute existed as to whether plaintiff should be classified as a secular (layman) or nonsecular (religious) employee. Thus, the trial court improperly engaged in fact-finding. We disagree.

The standard for deciding a motion under MCR 2.116(C)(10) is well established. The court must first review all the evidence presented, including any depositions, affidavits, admissions, and pleadings, and then ascertain whether there is any dispute as to a material fact. Omega Construction Co., Inc. v. Altman, 147 Mich.App. 649, 652, 382 N.W.2d 839 (1985). The test is whether the record which might be developed, giving the benefit of any reasonable doubt to the nonmoving party, would leave open an issue upon which reasonable minds might differ. Rizzo v. Kretschmer, 389 Mich. 363, 371-373, 207 N.W.2d 316 (1973). The court should be liberal in finding a question of material fact and must carefully avoid making findings of fact under the guise of determining that no issues of material fact exist. Partrich v. Muscat, 84 Mich.App. 724, 730-731, 270 N.W.2d 506 (1978). If in granting summary disposition the court makes findings of fact, the appellate court must reverse, but the lower court decision will be affirmed where no factual development could justify recovery by the nonmoving party. Jubenville v. West End Cartage Co., 163 Mich.App. 199, 203, 413 N.W.2d 705 (1987), lv. den. 429 Mich. 881 (1987).

The First Amendment of the United States Constitution provides, in part, that Congress shall make no law prohibiting the free exercise of religion. U.S. Const., Am. I. The prohibitions contained in the First Amendment apply to the states through the Fourteenth...