The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
Plaintiff Todd David Barton commenced this action pro se against Defendants pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (Title VII). In his Complaint, Plaintiff alleged claims of: (1) gender discrimination; (2) hostile work environment; (3) sexual harassment; (4) violation of due process; (5) failure to protect against or investigate Title VII allegations; and (6) retaliatory firing. Plaintiff seeks damages in the sum of Ten Million Dollars, reinstatement of his pastoral license, retirement on medical disability and in good standing, and a published apology in the local newspaper.
On March 15, 2010, the Court issued a Decision and Order that dismissed all of Plaintiff's claims against all Defendants except his gender discrimination and retaliatory firing claims against Defendant Troy Annual Conference of the United Methodist ("TAC"). See Barton v. MikelHayes, No. 09-CV-0063 (N.D.N.Y. March 15, 2010)[Dkt. # 65] reported at 2010 WL 980708 (N.D.N.Y. March 15, 2010). TAC now moves to dismiss the remaining claims for lack of subject matter jurisdiction pursuant to FED. R. CIV. P. 12(b)(1). Defendant's motion argues that (1) there is religious reason why Plaintiff's pastoral appointment was revoked by Defendant, and that, therefore, (2) the Court lacks subject matter jurisdiction to hear Plaintiff's Title VII claims under the "ministerial exception," a constitutional doctrine that prohibits a Court from engaging in excessive entanglement with religion.
Plaintiff failed to oppose Defendant's motion seventeen calendar days prior to the motion's return date, September 13, 2010, as required by the Local Rules of the Northern District. However, Plaintiff did submit an untimely opposition on September 14, 2010, without supporting affidavits, in which he argues that the ministerial exception does not prohibit the Court from hearing this case because (1) Defendant failed to offer a religious reason for its action before this stage in the litigation, and therefore, the religious reason is merely "rhetorical posturing," and (2) whether Defendant applied the Book of Discipline provision that Plaintiff allegedly violated equally to all similarly situated pastors is not a question that is religious in nature. (Dkt. # 85). Although Plaintiff did not timely respond and offered no justification for his delay thereby providing a justification for the Court to ignore his response,*fn1 the Court will grant Plaintiff some leeway due to his pro se status and will consider his arguments in addressing this motion.
A case is to be dismissed for lack of subject matter jurisdiction pursuant to FED. R. CIV. P. 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it. Makarova v. United States, 201 F. 3d 110, 113 (2d Cir. 2000). A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists. See Luckett v. Bure, 290 F.3d 493, 497 (2d Cir. 2002); see also Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996). When a defendant moves to dismiss claims pursuant to Fed. R. Civ. P. 12(b)(1), "the movant is deemed to be challenging the factual basis for the court's subject matter jurisdiction." Cedars-Sinai Medical Ctr. v. Watkins, 11 F.3d 1573, 1583 (Fed. Cir. 1993). For the purposes of such a motion, "the allegations in the complaint are not controlling... and only uncontroverted factual allegations are accepted as true." Id.
Both the movant and pleader may use affidavits and other pleading materials to support or oppose a motion to dismiss for lack of subject matter jurisdiction. See Makarova, 201 F.3d at 113; Filetech S.A. v. France Telecom, S.A., 157 F.3d 922, 932 (2d Cir. 1998); John Street Leasehold, LLC v. Capital Mgt. Res., L.P., 2001 WL 310629, at *2 (S.D.N.Y. March 29, 2001). Further, "jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it." Gunst v. Seaga, 2007 WL 1032265, at *2 (S.D.N.Y. March 30, 2007) (quoting Shipping Financial Services Corp. v. Drakos, 140 F.3d 129 (2d Cir. 1998)). "Thus, the standard used to evaluate a Rule 12(b)(1) motion is similar to that used for summary judgment under Fed. R. Civ. P. 56." Lopresti v. Merson, 2001 WL 1132051, at *5 (S.D.N.Y. Sept. 21, 2001).
This Court assumes a certain familiarity with the underlying facts of the case. See, Barton v. MikelHayes, 2010 WL 980708 (N.D.N.Y. March 15, 2010). However, some additional facts must be mentioned as these facts are particularly relevant to the analysis of whether the ministerial exception applies in this case.
The United Methodist Church is divided into several jurisdictional "Conferences" based upon geographic locations. [Fenimore Aff. ¶ 3]. Defendant Troy Annual Conference of the United Methodist Church (TAC) is one such Conference. [Fenimore Aff. ¶ 3]. The United Methodist Church follows both divine law, established by the teachings of the Bible and Jesus Christ, and man-made law, contained in the Book of Discipline ("BOD"). [Fenimore Aff. ¶ 4]. The BOD is the book of law of the United Methodist Church, providing the rules and regulations under which each United Methodist Church shall operate. [Defendant Ex. A: BOD (Episcopal Greetings)].
The BOD empowers the Bishop to revoke the appointment of a local pastor for any of the violations enumerated under BOD Section 2702. [Fenimore Aff. ¶ 23-24, 34]. One such violation includes 2702(1)(g), "relationships and/or behavior that undermines the ministry of another pastor." [Defendant Ex. A: BOD (Chargeable Offenses and the Statute of Limitations)]. According to a binding decision of the United Methodist Church Judicial Council, the highest judicial body in the Church, the BOD "does not impose upon the bishop any criteria, constraint, or guideline for the discontinuance of a local pastor's appointment." [Fenimore Aff. ¶ 26; UMC Judicial Council Decision 982].
In a letter dated October 23, 2007, James Fenimore, Albany District Superintendent of the TAC, informed Plaintiff that Bishop Hassinger had withdrawn Plaintiff's pastoral license based on Plaintiff's unpastoral-like conduct, "as outlined in the Book of Discipline ¶ 320." [Defendant Ex. N]. According to Fenimore's sworn testimony, Bishop Hassinger made the decision to withdraw Plaintiff's license because Plaintiff violated BOD Section 2702(1)(g) when he demonstrated patterns of behavior that undermined the ministry of Lead Pastor MikelHayes, including openly criticizing MikelHayes' theology with congregants of the Church. [Fenimore Aff. ¶ 34]. According to Fenimore's sworn testimony, this decision was therefore both within the Bishop's authority and "based upon religious grounds." Id.
On May 8, 2008, the Albany District Committee on Ordained Ministry notified Plaintiff that his Certified Candidacy for Ordained Ministry had been discontinued pursuant to BOD ¶ 313.1. [Defendant Exhibit P]. The Committee also cited "undermining the ministry of a pastor" as ...