DeMarco v. Holy Cross High School

Citation4 F.3d 166
Decision Date01 September 1993
Docket NumberD,No. 1052,1052
Parties62 Fair Empl.Prac.Cas. 1153, 62 Empl. Prac. Dec. P 42,535, 62 USLW 2158, 85 Ed. Law Rep. 674 Guy DeMARCO, Plaintiff-Appellant, v. HOLY CROSS HIGH SCHOOL, Defendant-Appellee. ocket 92-7914.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Jerome J. Liebman, Rockville Centre, NY, for plaintiff-appellant.

Brian P. Neary, Huntington, NY (Faruolo, Caputi, Weintraub & Neary), for defendant-appellee.

Karen M. Moran, Washington, DC (U.S. E.E.O.C., Samuel A. Marcosson, Donald R Before: WALKER and McLAUGHLIN, Circuit Judges, and GRIESA, Chief District Judge. *

Livingston, Gwendolyn Young Reaves, Vincent J. Blackwood, of counsel), filed a brief amicus curiae on behalf of E.E.O.C.

WALKER, Circuit Judge:

This appeal raises the question of whether the Age Discrimination in Employment Act of 1967 (the "ADEA"), 29 U.S.C. Secs. 621-34, applies to an action brought by a lay teacher against his parochial school employer.

BACKGROUND

Beginning in September of 1985, plaintiff-appellant Guy DeMarco was employed as a math teacher by defendant-appellee Holy Cross High School, a Catholic parochial school which has in excess of twenty employees. Although a layperson, DeMarco had certain religious duties, including leading his students in prayers and taking them to Mass. DeMarco was employed under annual contracts renewable each year for five years, after which time he was to become eligible for tenure. In April of 1990, near the end of his fifth year of employment, Holy Cross informed DeMarco that he would not be offered a contract for the upcoming year. At the end of that school year, DeMarco left the employment of Holy Cross. He then filed a charge of age discrimination with the Equal Employment Opportunity Commission (the "EEOC").

On April 22, 1991, the EEOC issued a determination that Holy Cross had not violated the ADEA. On July 12, 1991, DeMarco initiated the instant action in the United States District Court for the Eastern District of New York (Spatt, J.). On October 24, 1991, Holy Cross moved for summary judgment, arguing that DeMarco was dismissed for reasons unrelated to his age, including failure to begin his classes with prayer and failure to attend Mass with his students. Holy Cross also argued that the district court should not reach the merits of DeMarco's age discrimination claims because, as a religious institution, it was statutorily exempt from the ADEA's anti-discrimination provisions. The district court agreed with Holy Cross's statutory argument and dismissed the complaint, holding that the ADEA should not be construed to apply to parochial schools, at least with respect to employees with some religious duties, such as teachers required to lead students in prayer. DeMarco v. Holy Cross High Sch., 797 F.Supp. 1142, 1151-52 (E.D.N.Y.1992).

DISCUSSION

The ADEA makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age...." 29 U.S.C. Sec. 623(a)(1). The ADEA defines an "employer" as "a person engaged in an industry affecting commerce who has twenty or more employees...." Id. at Sec. 630(b). Neither the ADEA nor its legislative history explicitly states whether religious institutions are "employers" within the meaning of Sec. 630(b). See H.R.Rep. No. 805, 90th Cong., 1st Sess., reprinted in 1967 U.S.C.C.A.N. 2213; S.Rep. No. 723, 90th Cong., 1st Sess. (1967).

The Establishment Clause provides that "Congress shall make no law respecting an establishment of religion[ ]...." U.S. Const. amend. I. The Supreme Court has developed a three-part test for analyzing the constitutionality of legislation under the Establishment Clause: "[f]irst, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; [and] finally, the statute must not foster 'an excessive government entanglement with religion.' " Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971) (citation omitted).

Holy Cross contends, as it did successfully in the district court, that application of the Our analysis of the ADEA in this case is guided by principles of statutory construction enunciated by the Supreme Court in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979). In Catholic Bishop, the Supreme Court examined whether the National Labor Relations Act (the "NLRA") authorized the National Labor Relations Board (the "NLRB") to regulate labor relations between lay faculty and their parochial school employers. The Catholic Bishop Court applied a test which looks initially to whether application of the statute at issue would raise serious First Amendment concerns. See id. at 501, 99 S.Ct. at 1319. If there is a serious risk of constitutional violation, a court must then determine whether Congress expressed an affirmative intention to apply the statute at issue to religious institutions. See id. If it does not find such an expression of intent, a court presumes Congress did not intend the statute to apply to the case at issue. See id. at 504-06, 99 S.Ct. at 1320-21.

ADEA to DeMarco's claims would create a substantial risk of violation of the excessive entanglement prohibition of the Establishment Clause, and thus that we should construe the Sec. 630(b) definition of "employer" to exclude religious institutions in cases brought by lay employees with religious duties like DeMarco.

The Catholic Bishop Court concluded that NLRB supervision of teacher-parochial school labor relations risked excessive entanglement of government with religion in violation of the Establishment Clause. See id. at 504, 99 S.Ct. at 1321. The Court focused upon the likelihood that resolution by the NLRB of improper labor practice complaints would "necessarily involve inquiry into the good faith of the position asserted by the clergy-administrators and its relationship to the school's religious mission." See id. at 502; see generally L.H. Tribe, American Constitutional Law Sec. 14-11, at 1227-28 (2d ed. 1988) (discussing case law concerning administrative entanglement between government and religious institutions). In the absence of an affirmative expression of Congressional intent to apply the NLRA to religious schools, the Court found that the statute did not apply. See 440 U.S. at 506-07, 99 S.Ct. at 1321-22.

In the present case, Judge Spatt held that the governing standard of statutory construction compelled a conclusion like that reached in Catholic Bishop, namely, that the ADEA did not apply to DeMarco's claims. See DeMarco, 797 F.Supp. at 1151-53. The district court was convinced both that application of the ADEA to the instant case would give rise to an untoward risk of excessive government entanglement with religion and that Congress did not express an affirmative intent to apply the ADEA to religious institutions. See id. We disagree with both aspects of this analysis.

The majority of courts considering the issue have determined that application of the ADEA to religious institutions generally, and to lay teachers specifically, does not pose a serious risk of excessive entanglement. See, e.g., Ritter v. Mount St. Mary's College, 814 F.2d 986, 988 n. 1 (4th Cir.) (discussing unpublished decision permitting suit by lay professor against religious university), cert. denied, 484 U.S. 913, 108 S.Ct. 260, 98 L.Ed.2d 217 (1987) (overruled on other grounds by Lytle v. Household Mfg., Inc., 494 U.S. 545, 110 S.Ct. 1331, 108 L.Ed.2d 504 (1990)); Soriano v. Xavier Univ. Corp., 687 F.Supp. 1188, 1189 (S.D.Ohio 1988) (permitting suit by lay employee of religious university); Grotke v. Canisius High Sch. of Buffalo, No. CIV-90-1057S, 1992 WL 535400, 1992 U.S.Dist. LEXIS 12299 (W.D.N.Y. Apr. 11, 1992) (permitting suit by lay teacher against parochial school); see also Lukaszewski v. Nazareth Hosp., 764 F.Supp. 57, 60 (E.D.Pa.1991) (permitting suit by lay employee of religious hospital; but distinguishing cases involving educational institutions by noting that religious doctrine is more important factor in function of parochial schools than in function of religious hospitals).

These courts have recognized an important distinction between the ongoing government supervision of all aspects of employment required under labor relations statutes like the NLRA and the limited inquiry required in anti-discrimination disputes. While the NLRB is "continuously involved in the enforcement of collective bargaining agreements The district court was convinced that application of the test articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), as required in most ADEA actions, Kirschner v. Office of the Comptroller of the City of New York, 973 F.2d 88, 91-92 (2d Cir.1992), would give rise to Establishment Clause concerns. DeMarco, 797 F.Supp. at 1150, 1151-52. We disagree.

                and resolution of labor disputes," id.;   see also Catholic Bishop, 440 U.S. at 503, 99 S.Ct. at 1320 (noting that nearly everything that goes on in a school is a term and condition of employment, potentially subject to NLRB review), ADEA actions do not require extensive or continuous administrative or judicial intrusion into the functions of religious institutions.  The sole question at issue in an ADEA case is whether the plaintiff was unjustifiably treated differently because of his age.  See, e.g., Lukaszewski, 764 F.Supp. at 60 ("In age discrimination cases, the EEOC's authority extends only to the investigation and attempted conciliation or resolution of individual or group complaints;  it is limited in time and scope.");  Soriano, 687 F.Supp. at 1189 (noting "narrow focus of the ADEA").  The Supreme Court has stated that "routine
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