Murphy v. Derwinski, s. 91-1393

• Decision Date: 01 April 1993
• Docket Number: Nos. 91-1393,91-1402,s. 91-1393
• Citation: 990 F.2d 540
• Parties: 61 Fair Empl.Prac.Cas. (BNA) 764, 61 Empl. Prac. Dec. P 42,231, 61 USLW 2619 Mary Wilson MURPHY, Plaintiff-Appellee, v. Edward J. DERWINSKI, Secretary of Veterans Affairs, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 540

990 F.2d 540

61 Fair Empl.Prac.Cas. (BNA) 764,

61 Empl. Prac. Dec. P 42,231, 61 USLW 2619

Mary Wilson MURPHY, Plaintiff-Appellee, v. Edward J. DERWINSKI, Secretary of Veterans Affairs Defendant-Appellant.

Nos. 91-1393, 91-1402.

United States Court of Appeals Tenth Circuit.

April 1, 1993.

Stuart M. Gerson, Asst. Atty. Gen., Washington, DC, Michael J. Norton, U.S. Atty., Denver, CO, Robert S. Greenspan, John C. Hoyle, Washington, DC, for defendant-appellant.

Daniel F. Lynch, of Waltz, D'Antuono, Correll & Anderson, Denver, CO, for plaintiff-appellee.

Before LOGAN, Circuit Judge, LAY, Senior Circuit Judge, ¹ and BARRETT, Senior Circuit Judge.

LAY, Senior Circuit Judge.

The Secretary of Veterans Affairs appeals the district court's ² grant of a summary judgment in favor of a plaintiff claiming discrimination under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. The plaintiff, Mary Murphy, applied to become a Roman Catholic chaplain at hospitals operated by the United States Veterans Administration (VA). The VA rejected Murphy's application on the ground that its guidelines require that she be an ordained member of the clergy. The district court granted summary judgment in favor of Murphy, determining that the VA's hiring interests could be equally served by relying on the agency's requirement that applicants have ecclesiastical endorsement from their churches, 776 F.Supp. 1466. We affirm.

I.

In 1988, Murphy applied for employment as a Roman Catholic chaplain in the VA Medical Center in Denver, Colorado, where she had worked as a volunteer. ³ At that time, the VA Medical Center employed six staff chaplains--three Protestants, two Roman Catholics and one Jew. All were men. ⁴

On September 15, 1988, the VA formally rejected Murphy's application. ⁵ Herbert B. Cleveland, director of the chaplain service, wrote Murphy that her "qualifications do not meet the Veterans Administration's requirements for a chaplain. Chaplains in the Veterans Administration must be ordained and an ecclesiastical endorsement must be included with the Standard Form 171, Application for Federal Employment." ⁶

Murphy then brought an EEO complaint over the VA's refusal to consider her application. The EEO investigator proposed that the VA had not discriminated against Murphy, but an Administrative Law Judge (ALJ), after a hearing, determined that the ordination requirement is discriminatory. ⁷ The Deputy Secretary of Veterans Affairs disagreed, concluding that Murphy had not established that there are reasonable, nondiscriminatory alternatives for selecting a chaplain. Murphy then sued in the United States District Court for the District of Colorado. Treating the parties' briefs as cross motions for summary judgment, the trial judge concluded that the ordination requirement violates Title VII. He emphasized that the VA has a separate requirement that applicants receive ecclesiastical endorsement from their churches. The trial judge stated:

[B]y removing the ordination requirement and requiring only ecclesiastical endorsement, the VA can ensure that its patients receive the religious services that the Catholic church deems sufficient. The VA must rely on the church to determine the appropriate requirements for endorsement; once the church endorses a candidate and assures the VA that an applicant is in good standing, the VA need go no further. In this fashion, the VA can hire chaplains without discriminating against women on the basis of sex and accommodate the religious needs of its patients.

II.

The VA contests Murphy's standing to sue. ⁸ Article Three of the United States Constitution requires plaintiffs to have a personal injury that is "fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). The VA asserts that the relief Murphy seeks--abolishing the ordination requirement--will not redress her injury since she still might not be considered for a VA chaplain position. We disagree.

As the Supreme Court has said, the concept of standing is "concededly not susceptible of precise definition." Id. "In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." Id. at 750-51, 104 S.Ct. at 3324. To avoid advisory opinions, the "relief from the injury must be 'likely' to follow from a favorable decision." Id. at 751, 104 S.Ct. at 3324.

Although abolishing the ordination requirement may not result in Murphy becoming employed as a VA chaplain, the essence of her sought-after relief is the removal of an allegedly illegal, gender-based barrier that precludes the VA from considering her application. In Regents of University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), the Supreme Court determined that Alan Bakke, a white applicant to medical school, had standing to challenge the University of California at Davis Medical School's practice of setting aside slots for minority applicants. Id. at 280 n. 14, 98 S.Ct. at 2743 n. 14. The Court approved the trial judge's determination that the University injured Bakke by preventing him from competing for the set-aside slots. Id. It concluded "[t]he question of Bakke's admission vel non is merely one of relief." Id. Thus, the Court held that it did not matter, for purposes of standing, whether Bakke's admission hinged solely on removal of the school's minority recruitment program. ⁹ Similarly, Murphy seeks merely to remove a sex-based barrier precluding consideration of her application. Whether she ultimately obtains the position is irrelevant for standing purposes because her alleged injury stems from the VA's use of gender-based criteria to reject her application--not its failure to hire her. ¹⁰ Such an injury goes to the heart of Title VII. As the Supreme Court explained in Griggs v. Duke Power Co., 401 U.S. 424, 430-31, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971):

In short, the Act does not command that any person be hired simply because he was formerly the subject of discrimination, or because he is a member of minority group.... What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.

III.

We now turn to the merits. We review a district court's decisions on summary judgment de novo. Hydro Conduit Corp. v. American-First Title & Trust Co., 808 F.2d 712, 714 (10th Cir.1986). We thus apply the same standard as the trial court: whether the record, when viewed in the light most favorable to the non-moving party, shows no genuine issue of material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).

Murphy claims that the VA requirement has a disparate impact on women. Her claim does not require a finding of intentional discrimination because "the necessary premise of the disparate impact approach is that some employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to intentional discrimination." Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 987, 108 S.Ct. 2777, 2785, 101 L.Ed.2d 827 (1988). The thrust of the inquiry is whether the employer's practice creates "artificial, arbitrary, and unnecessary barriers to employment." Griggs, 401 U.S. at 430-31, 91 S.Ct. at 853; see, e.g., Albemarle Paper Co. v. Moody, 422 U.S. 405, 417, 95 S.Ct. 2362, 2371, 45 L.Ed.2d 280 (1975).

Under the disparate impact theory, a plaintiff must first make out a prima facie case of discrimination by showing that "a specific identifiable employment practice or policy caused a significant disparate impact on a protected group." Ortega v. Safeway Stores, Inc., 943 F.2d 1230, 1242 (10th Cir.1991). The burden then shifts to the defendant to rebut with evidence of a "business justification" for its action. Id. at 1243. If the defendant meets this burden of production, then it falls to the plaintiff to show that the justification is a pretext for discrimination. Id. at 1244. We explained in Ortega that

plaintiffs may still prevail if they can "persuade the factfinder that 'other tests or selection devices, without a similarly undesirable [discriminatory] effect, would also serve the employer's legitimate [hiring] interest[s].' " Further, those alternative practices "must be equally effective ... in achieving [the employer's] legitimate employment goals." This may be a difficult burden for plaintiffs to meet, however: "the judiciary should proceed with care before mandating that an employer must adopt a plaintiff's alternative selection or hiring practice in response to a Title VII suit."

Id. (quoting Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 660-61, 109 S.Ct. 2115, 2126-27, 104 L.Ed.2d 733 (1989)). ¹¹

The trial court determined that the plaintiff made out a prima facie case of discrimination and that the defendant articulated a legitimate business justification for its practice. The parties have not disputed these conclusions. The focus on appeal is whether the VA's business justification for requiring an ordained clergy person constitutes a pretext for gender discrimination. This in turn depends on whether the ecclesiastical endorsement alone will ensure religious assistance to patients in the VA hospital system without having a similar disparate impact on women. Wards Cove, 490 U.S. at 660-61, 109 S.Ct. at 2126-27.

The VA argues that it will be unable to provide equally effective religious services to patients if all chaplains cannot perform the full range of religious functions established by their faiths. It notes that hospital chaplains may be on duty alone or may be called in the middle of the night. In the Roman...