Brandenburg v. Greek Orthodox Archdiocese of N. Am.

ELIZABETH BRANDENBURG, et al., Plaintiffs, v. GREEK ORTHODOX ARCHDIOCESE OF NORTH AMERICA, et al., Defendants.

No. 20-CV-3809 (JMF)

United States District Court, S.D. New York

February 23, 2023

OPINION AND ORDER

JESSE M. FURMAN, United States District Judge:

Plaintiffs Elizabeth Brandenburg and Maria Kallis, who worked as “sanctified nuns” at a monastery run by the Greek Orthodox Archdiocese of North America (the “Archdiocese”), bring this suit against the Archdiocese and several of its clergy members, including Father Gerasimos Makris (“Father Makris”) Archbishop Demetrios Trakatellis (“Archbishop Demetrios”), Bishop Allen Paropoulos (“Bishop Andonios”), and Mother Charlene Asquith (“Mother Eisodia”). Alleging that Father Makris subjected them to inappropriate sexual conduct for years, they bring claims pursuant to the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 290 et seq., for hostile work environment discrimination constructive discharge, and retaliation. In addition, they bring defamation claims against Mother Eisodia. Defendants now move, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgment with respect to all of Plaintiffs' claims. The motion implicates an issue that has divided the lower courts: whether, and under what circumstances, a clergy member can bring a claim for hostile work environment discrimination or retaliation against a religious employer. For the reasons that follow, the Court concludes that Plaintiffs' hostile work environment and retaliation claims can proceed (at least in part), albeit subject to strict limitations on what a finder of fact could consider at trial, and that Plaintiffs' other claims fail for reasons unrelated to the First Amendment. Accordingly, and as discussed below Defendants' motion is granted in part and denied in part.

BACKGROUND

The following facts, taken from the admissible materials submitted in connection with the pending motion, are either undisputed or viewed in the light most favorable to Plaintiffs. See Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir. 2011).

Brandenburg and Kallis became students at Hellenic College Holy Cross Greek Orthodox School of Theology in Brookline Massachusetts, in 2003 and 2004, respectively. See ECF No. 85 (“Pls.' Rule 56.1 Stat.”), ¶ 1. During their time there, Father Makris was the school's Director of Student Life. Id. ¶ 3. Not long after Kallis and Brandenburg enrolled, Father Makris became their “Spiritual Father.” Id. ¶ 4. According to Bishop Andonios, a spiritual father is “someone who one goes to, for the sacrament of confession,” and “for guidance in developing one's rules for life.” ECF No. 84-5 (“Bishop Andonios Depo.”), at 62. As Brandenburg put it, a “spiritual father holds a lot of authority over one person's life and they interpret God's will for your life.” ECF No. 84-1 (“Brandenburg Depo.”), at 35. Kallis testified that “a spiritual father in the orthodox [C]hristian religion is somebody who is basically your director.” ECF No. 84-2 (“Kallis Depo.”), at 49. After a few years, Father Makris was appointed to All Saints Monastery in Calverton, New York. Brandenburg Depo. 35. In part at his urging, Plaintiffs joined All Saints Monastery as novices in 2009 and became sanctified nuns there in 2010. Id. at 32; Pls.' Rule 56.1 Stat. ¶¶ 21, 27.

Brandenbug and Kallis allege that Father Makris subjected them to unwanted sexual attention and contact throughout their relationship with him, which lasted until October 2017. Brandenburg, for instance, testified that Father Makris would “always comment on [her] looks or the looks of the other nuns or novices,” Brandenburg Depo. 157-58, and that he would tell nuns or novices “you look so beautiful, or you're so cute[,] [o]r isn't she so cute or look how beautiful she is.” Id. at 280; see also id. at 285 (Brandenburg testifying that Father Makris would look over her body, making her “feel very uncomfortable” because “there was an element that I only experienced in a romantic relationship, winking across the room and looking up and down”). Additionally, Brandenburg claimed that Father Makris would “touch my head, my arms, [and] my legs,” id. at 157, and would touch her “thigh,” would “stroke” the “back part” of her arm and her lower back, would touch her hair and kiss her head, would hug her “so tightly that I could not breathe,” and would “press himself against me so tightly that I couldn't breathe.” Id. at 280-81; see Kallis Depo. 343-46 (alleging similar conduct). On one occasion, in 2006, Father Makris brushed his penis against Brandenburg's hand; she noted that she's “never had anyone . . . inadvertently press their penis up into my hand.” Brandenburg Depo. 282-84; see Kallis Depo. 349-50 (Kallis testifying that Father Makris pressed his genitals against her in 2005 and touched her breasts in 2009). Brandenburg asserted that Father Makris's touching was not done “in a platonic way or a way that a family member” or an employer “would ever do.” Brandenburg Depo. 281.

During their depositions, Brandenbug and Kallis were asked about allegations in the Second Amended Complaint regarding misconduct by Father Makris as late as October 2017, see ECF No. 29 (“SAC”), ¶ 44(j), (n) (alleging that Father Makris told Plaintiffs “that they shared a ‘special connection,' implying a romantic or sexual desire rather than simply a spiritual and professional relationship,” through “October 2017” and that Father Makris asked Plaintiffs to “meet him alone, after hours, or after dark so they could spend time alone together . . . [and] engage in the aforementioned acts of ‘fatherly affection,' which consisted of unwanted and offensive touching, full-body hugs . . ., and kissing” through “October 2017”), and, more broadly, to specify anything relevant that occurred in 2017. Kallis responded that Father Makris “did all the touching and rubbing arms and all of this kind of stuff so often that I will not be able to recall that in detail.” Kallis Depo. 346. When pressed about what happened in 2017, Kallis stated that “the arm touching, the kissing on the head, things like that, [Father Makris] did all the way through the date that's listed in the complaint.” Id. at 348. Brandenburg testified that the contact “was so common” and was “just constant and continual.” Brandenburg Depo. 282.

For his part, Father Makris admitted that he kissed Kallis at least “five times” on her cheek and on the top of her head. See ECF No. 84-4 (“Father Makris Depo.”), at 133. Father Makris offered that the kissing “was not any religious ceremony. It is an expression of - always as a person of - as a priest, who also knew Ms. Kallis for many, many years. So there was a - a friendship. And it's also very typical to kiss people in the Orthodox church in all - it's customary.” Id. at 135. Separately, Father Makris admitted that he had been “inappropriately physical” with two other women. Id. at 154-57. According to Bishop Andonios, these inappropriate physical interactions included “stimulat[ion] to the point that [Father Makris] ejaculated.” Bishop Andonios Depo. 71.

Brandenbug and Kallis saw Father Makris for the last time on October 20, 2017. Brandenburg Depo. 163-64. On October 25, 2017, they spoke by telephone with Bishop Andonios, then Chancellor of the Archdiocese, and accused Father Makris of having engaged in inappropriate conduct. See Kallis Depo. 305-07. In response, Bishop Andonios advised parishioners that Father Makris had been “suspended” in accordance with “the Sexual Misconduct Policy of the Archdiocese” pending an investigation. See ECF No. 77-12. In March 2018, Brandenbug and Kallis met with Archbishop Demetrios. See Brandenburg Depo. 184. During the meeting, they discussed Father Makris's conduct and also complained that “priests in Long Island will not allow us to come anymore to their church to sell [soaps and other products] at their festivals.” See ECF No. 77, ¶¶ 21, 25. According to Plaintiffs, Archbishop Demetrios asked them about “[their] fault in all of this sexual misconduct” and downplayed the behavior as not a “very serious offense by [Father] Makris.” Brandenburg Depo. 149. Brandenburg testified that she and Kallis “did not feel safe,” received “hate mail” from parishioners, and had “people coming to the convent who were very upset with us for reporting Father Makris.” Id. at 150. Kallis testified that she left a meeting with Archbishop Demetrious feeling “victim blamed” and “threatened with being sent to Greece to learn how to become real nuns” because of the investigation. Kallis Depo. 163. Brandenburg also testified that Bishop Andonios and other church officials told her that they would send her and Kallis to Greece in retaliation for Kallis's report of sexual harassment. Brandenburg Depo. 166, 184. When asked if she thought they were going to be abducted, Kallis answered “yes,” explaining that she and Brandenburg “went straight to the bank with our birth certificates and passports and opened a safety deposit box to hide them. That's how much they scared us.” Kallis Depo. 164.

Ultimately Bishop Andonios and Archbishop Demetrios allowed Father Makris to return to his position. Bishop Andonios Depo. 137. In August 2018, Archbishop Demetrios called Brandenbug and Kallis to inform them. Brandenburg Depo. 149. In the meantime, between Father Makris's alleged harassment and Archbishop Demetrios's “cruel and unkind and unhelpful” comments, including “victim blam[ing],” Brandenburg and Kallis had decided to leave the Monastery. Kallis Depo. 152-53. On November 14, 2018, they resigned their positions and left, taking with them, among other things, $100,000 from a Monastery bank account and a Nissan Pathfinder that had been registered to and...