Madsen v. Erwin

Decision Date21 August 1985
Citation395 Mass. 715,481 N.E.2d 1160
Parties, 120 L.R.R.M. (BNA) 2408, 38 Fair Empl.Prac.Cas. (BNA) 1466 Christine MADSEN v. Robert ERWIN et al. trustees, et al. 1
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Theodore E. Dinsmoor, Boston (Douglas F. Seavert, Timothy Q. Feeley, Boston, with him) for defendants.

Katherine Triantafillou, Boston, for plaintiff.

Robert J. Ebersole, for Gay & Lesbian Advocates & Defenders, amicus curiae, submitted a brief.

Marjorie Heins, Boston, for Civil Liberties Union of Massachusetts, amicus curiae, submitted a brief.

Roberta Achtenberg and Donna J. Hitchens, San Francisco, Cal., of California, Abby R. Rubenfeld, Jyl Lynn Felman & Marsha Levick, of New York, for Lesbian Rights Project & others, amici curiae, submitted a brief.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, NOLAN and O'CONNOR, JJ.

NOLAN, Justice.

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, 11I, G.L. c. 214, § 1B (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, § 11I, 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, Madsen 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, § 11I, the complaint does not allege threats, intimidation, coercion, or supporting constitutional or statutory violations; (4) the plaintiff's claim under G.L. c. 214, § 1B, 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, "[w]hen a motion for summary judgment is made and supported ... an adverse party may not rest upon the mere allegations or 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, 340 N.E.2d 877 (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 and M.K. Kane, Federal Practice and Procedure § 2738, at 467 (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. Silvernail, 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 alia, authenticated copies of the plaintiff's application for employment to the "First Church of Christ, Scientist in Boston, Massachusetts"; of portions of the Employee Handbook, 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 counteraffidavits 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...

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