DeMarco v. Holy Cross High School
| Decision Date | 17 July 1992 |
| Docket Number | No. CV-91-2551 (ADS).,CV-91-2551 (ADS). |
| Citation | 797 F. Supp. 1142 |
| Parties | Guy DeMARCO, Plaintiff, v. HOLY CROSS HIGH SCHOOL, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Jerome J. Liebman, Rockville Centre, N.Y., for plaintiff.
Faruolo, Caputi, Weintraub & Neary, Huntington, N.Y., for defendant (Brian P. Neary, of counsel).
This is an employment discrimination case, brought pursuant to the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. ("ADEA"). The plaintiff Guy DeMarco ("DeMarco"), alleges that the defendant, Holy Cross High School ("Holy Cross") discharged him from employment in violation of ADEA. The defendant Holy Cross now moves for summary judgment on the ground that it is not subject to ADEA. In the alternative, the defendant argues that if ADEA is found to be applicable to the instant action, such application would violate the Free Exercise Clause and the Establishment Clause of the First Amendment to the United States Constitution. The defendant also contends that the plaintiff failed to exhaust administrative remedies pursuant to 29 U.S.C. § 633(b).
In essence, the summary judgment motion of the defendant Holy Cross is an exemption request. Holy Cross argues that if it is subject to ADEA, ultimately the law's operation will impermissibly involve the religious philosophy of Holy Cross.
The question presented by the summary judgment motion of Holy Cross, that is, whether ADEA applies to a parochial educational institution, appears to be a matter of first impression in the Second Circuit.
Holy Cross is a Catholic high school with a student body of approximately 1,000 students. It was founded by the Brothers of Holy Cross in 1955, and they have operated the school since its inception.
By contract dated August 24, 1985, DeMarco became employed as a math teacher with the defendant. He was also called upon, in the course of his employment, to teach mechanical drawing. DeMarco is forty-nine years of age.
The yearly contract between the parties was renewed each year from 1985. DeMarco would be eligible for tenure after five years employment with the school. Prior to his completing his five year tenure eligibility, by letter dated April 12, 1990, DeMarco was notified by the Executive Committee of Holy Cross that he would not be offered a contract for the upcoming school year. Thereafter, DeMarco lodged an age discrimination claim with the Equal Employment Opportunity Commission. By decision dated April 22, 1991, it was determined that the plaintiff's age discrimination claim lacked merit. On June 12, 1991, DeMarco commenced this action.
Holy Cross is a religious educational institution. As set forth in the section of the faculty handbook entitled the "Mission Statement," the "ultimate aim of the school is to educate the students that he or she will grow into that maturity which is necessary to make decisions in the light of the Christian vision of redemption" (Damato Aff. ¶ 10). Based on the faculty handbook, it is clear that in addition to their secular responsibilities, teachers at Holy Cross are expected to participate in religious activities as well.
The philosophical statement in the faculty handbook provides in pertinent part as follows:
(Damato Aff. ¶ 11).
The relevant objectives set forth in the faculty handbook are as follows:
The faculty handbook contains other provisions as to the teacher's role as a spiritual leader and instructor. For example, teachers are required to attend Mass with their students when classes are cancelled for Mass. Furthermore, the faculty handbook provides that teachers are to "begin each class with a prayer" (Damato Aff. ¶ 13; Faculty Handbook at p. 13).
The plaintiff, DeMarco, was allegedly denied tenure and discharged from his employment with Holy Cross, for his periodic failure to begin each class with a prayer and for his failure to attend Mass with his students, in addition to other allegedly nondiscriminatory reasons. However, DeMarco contends that he was unlawfully discharged on the basis of his age.
Although Holy Cross denies that it engaged in any such discrimination, it contends that as a religious educational institution it is exempt from the application of ADEA.
Summary judgment shall be granted in favor of a party if it is demonstrated that there are no genuine issues of material fact for trial, and that the movant is entitled to judgment as a matter of law (see Fed.R.Civ.P. 56c; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 1986). The Court must, however, resolve all ambiguities and draw all reasonable inferences in the light most favorable to the party opposing the motion (see Liscio v. Warren, 901 F.2d 274, 276 2d Cir.1990; Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 2d Cir.1986, cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 1987). Once a party moves for summary judgment, in order to avoid the granting of the motion, the non-movant must come forward with specific facts showing that a genuine issue for trial exists (see National Union Fire Ins. Co. v. Turtur, 892 F.2d 199, 203 2d Cir.1989). However, mere conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment (see Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 2d Cir.1990). If there is evidence in the record as to any material fact from which an inference could be drawn in favor of the non-movant, summary judgment is unavailable (see Rattner v. Netburn, 930 F.2d 204, 209 2d Cir.1991). Finally, the Court is charged with the function of "issue finding", not "issue resolution" (Eye Assocs., P.C. v. Incomrx Sys. Ltd. Partnership, 912 F.2d 23, 27 2d Cir.1990).
An "employer" is defined as "a person engaged in an industry affecting commerce who has twenty or more employees" (29 U.S.C. § 630b). The statute and its legislative history are silent as to whether religious institutions are within the definition of "employer" (see H.R.Rep. No. 805, 90th Cong., 1st Sess. reprinted in 1967 U.S.Code & Cong.Admin.News. pp. 2213 et seq.; S.Rep. No. 723, 90th Cong., 1st Sess. 1967).
The Free Exercise and Establishment Clauses of the First Amendment, which have been made applicable to the States by incorporation through the Fourteenth Amendment, provide that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." (United States Const. Amend. I). "These clauses have been interpreted as providing full protection for religious beliefs but only limited protection for overt acts prompted by those beliefs" (Intercommunity Center For Justice and Peace v. Immigration and Naturalization Service, 910 F.2d 42, 44 2d Cir.1990).
Justice Scalia has characterized the essence of the free exercise of religion as "first and foremost, the right to believe and profess whatever religious doctrine one desires" (Employment Div., Dept. of Human Resources v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 1599, 108 L.Ed.2d 876 1990).
However, the United States Supreme Court "has never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the government is free to regulate" (Smith, supra, 110 S.Ct. at p. 1600).
For example, in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), the Court applied free exercise principles in developing a balancing test which requires the government to establish a compelling interest in any action that substantially burdens a religious practice (Sherbert, supra, at pp. 402-403, 83 S.Ct. at pp. 1792-1793; see also Smith, supra, at p. 1602). In Sherbert, the Court, as it has on a number of subsequent occasions, invalidated a state unemployment compensation law that conditioned the availability of benefits upon the individual's acceptance of work in contravention of his religions beliefs (see Smith, supra, at p. 1602).
The Establishment Clause prohibits government sponsorship of religion. In the view of the Supreme Court, this clause has come to mean that the "government may not promote or affiliate itself with any religious doctrine or organization, may not discriminate among persons on the basis of their religious beliefs and practices, may not delegate a governmental power to a religious institution, and may not involve itself too deeply in such an institution's affairs" (County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 109 S.Ct. 3086, 3099, 106 L.Ed.2d 472 1989). So while the Free Exercise Clause protects citizens from the...
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