Little v. Wuerl
| Decision Date | 03 April 1991 |
| Docket Number | No. 90-3379,90-3379 |
| Citation | 929 F.2d 944 |
| Parties | 55 Fair Empl.Prac.Cas. 786, 56 Empl. Prac. Dec. P 40,671, 59 USLW 2608, 66 Ed. Law Rep. 966 Susan Long LITTLE, Appellant, v. Donald P. WUERL, Bishop of Pittsburgh, as Trustee of St. Mary Magdalene School, and as Titular Head of the Catholic Diocese of Pittsburgh St. Mary Magdalene Parish. |
| Court | U.S. Court of Appeals — Third Circuit |
Jay N. Silberblatt (argued), Sikov and Love, P.A., Pittsburgh, Pa., for appellant.
Philip J. Murren (argued), Maura K. Quinlan, Ball, Skelly, Murren & Connell, Harrisburg, Pa., Linda S. Drago, Diocese of Pittsburgh Legal Office, Pittsburgh, Pa., for appellee.
Before STAPLETON, HUTCHINSON and GARTH, Circuit Judges.
Susan Long Little, a Protestant teacher, claims that St. Mary Magdalene Parish ("the Parish"), operator of a Roman Catholic school, violated Title VII's prohibition against religious discrimination when it failed to renew her contract because of her remarriage. We find this claim to be without merit and will affirm the district court's judgment. 739 F.Supp. 1003.
Congress has exempted religious institutions from much of Title VII's prohibition against employment discrimination on the basis of religion. Specifically, that prohibition does not apply to religious organizations "with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such [an organization] of its activities." 42 U.S.C. Sec. 2000e-1. This exemption clearly makes Title VII inapplicable to Catholic schools when they discriminate by hiring and retaining Catholics in preference to non-Catholics. This case raises the more difficult question of whether Title VII applies to a Catholic school that discriminates against a non-Catholic because her conduct does not conform to Catholic mores. Because applying Title VII in these circumstances would raise substantial constitutional questions and because Congress did not affirmatively indicate that Title VII should apply in situations of this kind, we interpret the exemption broadly and conclude that Title VII does not apply.
This is a federal question case arising under the Constitution and the Civil Rights Act of 1964, and we have appellate jurisdiction over the district court's judgment pursuant to 28 U.S.C. Sec. 1291. Our review of grants of summary judgment is plenary. Hankins v. Temple University, 829 F.2d 437, 440 (3d Cir.1987).
Little served as an elementary school teacher from 1977 to 1986, and was granted a leave of absence for the 1986-87 school year. The Parish hired her with full awareness that she was a Protestant. While Little was not given responsibility for teaching religion, she attended Catholic ceremonies with her pupils and participated in the school's programs for teachers that were intended to strengthen their ability to impart "Catholic" values to students. As a tenured teacher, Little reasonably expected that her annual employment contract would be renewed each year in the absence of just cause. There is no dispute that Little performed well as a teacher.
The annual employment contracts between Little and the Parish, the same form contract used by all schools and teachers in the Diocese, contained a Cardinal's Clause. That clause reads:
Teacher recognizes the religious nature of the Catholic School and agrees that Employer has the right to dismiss a teacher for serious public immorality, public scandal, or public rejection of the official teachings, doctrine or laws of the Roman Catholic Church, thereby terminating any and all rights that the Teacher may have hereunder, subject, however, to the personal due process rights promulgated by the Roman Catholic Church.
Contract at p 6, Appendix at 172a. The employment contract also defined cause for termination to include "failure to perform in accordance with the terms and conditions of this contract as stated herein and in the Handbook of Personnel Policies and Practices ..."
Little acknowledges that she received the Handbook. The specific reference to the Handbook in Little's contract is significant because the Handbook includes the following gloss on the Cardinal's clause:
9.5 Just Cause Termination
One example of termination for just cause is a violation of what is understood to be the Cardinal's Clause. The Cardinal's Clause requires the dismissal of the teacher for serious public immorality, public scandal or public rejection of the official teachings, doctrine or laws of the Catholic Church. Examples of the violation of this clause would be the entry by a teacher into a marriage which is not recognized by the Catholic Church, or the support of activities which espouse beliefs contrary to Church teaching, e.g. advocacy of a practice such as abortion.
Appendix at 195 (emphasis added). 1
The parties agree that the Parish took very seriously its mission to be a Catholic presence in a secular world. This is underscored by the fact that the Diocese of Pittsburgh changed its policy in 1984 to favor hiring only Catholics and to require that any school hiring a non-Catholic get special permission. The policy change did not apply to teachers such as Little, who were already employed, and Little makes no claim that it influenced the Parish's decision not to renew her contract.
Little was married when she was hired, having been married in a Protestant religious ceremony. However, she was divorced in 1979 and was remarried by a Justice of the Peace in August 1986, the beginning of her leave of absence. Little's second husband, while not a practicing member of any religion, was baptized in the Catholic Church. Absent public repudiation of the affiliation or formal membership in another church, the Catholic Church considers all baptized Catholics to remain Catholic. Catholic canon law "recognizes" marriages performed by other Christian denominations if the parties are free to marry in the eyes of the Catholic Church (i.e. have not been married before). Catholic canon law also allows non-Catholics to seek annulments of their prior marriages from the Catholic Church on the same terms as Catholics.
When she tried to renew her contract for the 1987-88 year, Little was informed that she would not be rehired. The parties have stipulated that Little was not rehired "because she had remarried ... without pursuing the 'proper canonical process available from the Roman Catholic Church to obtain validation of her second marriage.' " Stipulation p 13, Appendix at 53a. Little does not challenge the sincerity of the Parish's asserted religious doctrine. The Parish's pastor testified:
I consider Susan Little's action in publicly rejecting the doctrine and laws of the Church by marrying a Catholic without proper validation to be a serious contradiction of the Church's teachings and laws on the indissolubility of Christian marriage and the sacramental nature of the marriage bond.
Appendix at 110. The Parish credibly asserts that it also would not have rehired a Catholic who had entered into a canonically invalid marriage. Appendix at 41a, 110a.
Little received a right-to-sue letter from the EEOC on March 8, 1989 and filed this action on May 18, 1989. After substantial discovery, the parties stipulated to most of the facts and filed cross motions for summary judgment. The district court granted the Parish's summary judgment motion, finding that the religious organization exemption to Title VII covered the Parish's decision.
The Supreme Court has stressed that constitutional issues should be avoided whenever possible [T]he question we consider first is whether Congress intended the [National Labor Relations] Board to have jurisdiction over teachers in church-operated schools. In a number of cases the Court has heeded the essence of Mr. Chief Justice Marshall's admonition in Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64, 118, 2 L.Ed. 208 (1804), by holding that an Act of Congress ought not be construed to violate the Constitution if any other possible construction remains available....
In keeping with the Court's prudential policy it is incumbent on us to determine whether the Board's exercise of its jurisdiction here would give rise to serious constitutional questions. If so, we must first identify "the affirmative intention of Congress clearly expressed" before concluding that the Act grants jurisdiction.
NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500-01, 99 S.Ct. 1313, 1319, 59 L.Ed.2d 533 (1979). In Catholic Bishop, the Court was able to avoid the constitutional issue because Congress had expressed no clear intention that the National Labor Relations Board was to have jurisdiction over religious schools. Following a similar analysis, the Court of Appeals for the Fifth Circuit reached the constitutionality of applying Title VII to ministers only after finding that Congress specifically intended Title VII to forbid race and sex discrimination by religious groups. McClure v. Salvation Army, 460 F.2d 553 (5th Cir.), cert. denied, 409 U.S. 896, 93 S.Ct. 132, 34 L.Ed.2d 153 (1972).
Following the teachings of Catholic Bishop, we first consider whether applying Title VII to the Parish's decision in this case would raise substantial constitutional questions. If it would, we next determine whether Congress clearly expressed an intent that Title VII be applied to this kind of decision.
Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-2 ("Title VII"), prohibits employers from discriminating on the basis of religion. 2 Application of this prohibition to the Parish's decision would be constitutionally suspect because it would arguably violate both the free exercise clause and the establishment clause of the first amendment. 3
The Parish's free exercise rights are the more obviously endangered:
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