Palmer v. Liberty Univ.
| Docket Number | 21-2390,21-2434 |
| Decision Date | 05 July 2023 |
| Parties | EVA PALMER, Plaintiff-Appellant, v. LIBERTY UNIVERSITY, INC., Defendant-Appellee. EVA PALMER, Plaintiff-Appellee, v. LIBERTY UNIVERSITY, INC., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Richard F. Hawkins, III, THE HAWKINS LAW FIRM, PC, Richmond Virginia, for Appellant/Cross-Appellee.
King Fitchett Tower, WOODS ROGERS VANDEVENTER BLACK PLC, Roanoke, Virginia, for Appellee/Cross-Appellant.
ON BRIEF:
Leah M. Stiegler, WOODS ROGERS PLC, Richmond, Virginia; Horatio G. Mihet, Roger K. Gannam, Orlando, Florida, Mathew D. Staver, Washington, D.C., Daniel J. Schmid, LIBERTY COUNSEL, Lynchburg, Virginia, for Appellee/Cross-Appellant.
Eric C. Rassbach, The Hugh and Hazel Darling Foundation Religious Liberty Clinic, PEPPERDINE CARUSO SCHOOL OF LAW, Malibu, California; Noel J. Francisco, Megan Lacy Owen, J. Benjamin Aguinaga, JONES DAY, Washington, D.C., for Amici Pepperdine University, Brigham Young University, The Catholic University of America, and Houston Baptist University. Richard B. Katskee, Bradley Girard, Gabriela Hybel, AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, Washington, D.C., for Amicus Americans United for Separation of Church and State.
Before KING and RICHARDSON, Circuit Judges, and MOTZ, Senior Circuit Judge.
In these consolidated appeals from the Western District of Virginia, plaintiff Eva Palmer challenges the district court's award of summary judgment to defendant Liberty University, Inc. ("Liberty") on Palmer's claim of age discrimination, pursued under provisions of the Age Discrimination in Employment Act (the "ADEA"). See Palmer v. Liberty Univ., Inc., No. 6:20-cv-00031 (W.D. Va. Dec. 10, 2021), ECF No. 37 (the "Statutory Ruling"). On the other hand, Liberty, by cross-appeal, challenges an earlier award of summary judgment that was made to Palmer, in which the court ruled that Palmer was not a "minister" for purposes of the First Amendment's so-called "ministerial exception." See Palmer v. Liberty Univ., Inc., No. 6:20-cv-00031 (W.D. Va. Dec. 1, 2021), ECF No. 35 (the "Constitutional Ruling").
As explained herein, we agree with the district court that Palmer failed to produce sufficient evidence of age-based discrimination to overcome Liberty's summary judgment motion on that issue. Accordingly, we are satisfied to affirm the Statutory Ruling in favor of Liberty. Moreover, in light of that disposition - and pursuant to the constitutional avoidance doctrine - we refrain from resolving whether Palmer was a minister for purposes of the First Amendment's ministerial exception. As a result, we are obliged to dismiss Liberty's cross-appeal and vacate the Constitutional Ruling.
Founded in 1971, Liberty is a Christian higher education institution located in Lynchburg, Virginia.[1] With approximately 13,000 students enrolled at the main campus - and an additional 90,000 students attending online - the educational courses at Liberty "are taught from a biblical worldview and [are] designed in line with [the University's] mission to develop Christ-centered men and women." See J.A. 41.[2] To that end, the faculty members are considered by Liberty to be "messengers of Liberty's Christian worldview," with the expectation that they incorporate Christian principles into teaching. Id. at 166.
For her part, Palmer - a self-professed follower of Christ - was an art professor at Liberty for more than 30 years, from 1986 to 2018. Palmer began teaching at Liberty as a part-time art instructor in 1986, and was soon thereafter promoted to a full-time position. In 1992, Palmer was elevated to the rank of "Assistant Professor," which she maintained until her promotion to "Associate Professor" in 2006. Finally, as discussed herein, Palmer was promoted to "Full Professor" in October 2016. During her career at Liberty, Palmer taught "studio art courses" - i.e., traditional "ink and pen" art, such as painting, pottery, and ceramics - in the Studio &Digital Arts Department (the "Department"), a part of Liberty's School of Visual and Performing Arts ("SVPA"). While employed by Liberty, Palmer did not teach classes in the "digital arts," an area focusing on topics such as graphic design, production technology, digital illustration, and digital imaging.
In addition to the above-referenced criteria for promotion, Liberty faculty members receive annual performance evaluations based on what is called a "Faculty Portfolio" (the "Portfolio"). See J.A. 917. The Portfolio consists of nine specified criteria, but only the first of those - entitled "Operational elements of instruction/administration" - is pertinent here. That criterion asks the following question: "When teaching, do you record grades in Blackboard, return assignments and answer email in a timely fashion, use technology in a manner appropriate to the discipline, and meet all instruction-related deadlines?" Id. at 1331 (emphasis added).
The Portfolio requires a faculty member to initially conduct a self-evaluation of his or her own performance. Those self-evaluations are then reviewed by the faculty member's department chair, who provides additional comments and recommendations. At the final step in the evaluation process, the department chair's submissions are reviewed by the appropriate dean and, if necessary, supplemented with further recommendations. According to University policy and procedures, faculty members are expected to implement recommendations they receive in the Portfolio. Here, Palmer reported directly to a Liberty official named Smith, who served as Chair of the Department. Chair Smith reported directly to a Dean named Hayes, who had been for a time an Associate Dean of the SVPA, but in 2018 was elevated to the role of SVPA Dean. And as SVPA Dean, Hayes reported directly to Dr. Hicks, the Provost of Liberty.
Starting in 2013, Palmer - then an Associate Professor - applied for promotion to the academic rank of Full Professor. Initially, Palmer's promotion efforts were unsuccessful, primarily due to her low rate of producing scholarly works and publications. Around that time, in an effort to facilitate her promotion, Palmer worked with her supervisors - Department Chair Smith and Dean Hayes - to develop a so-called "Professional Development Plan" (the "Promotion Plan"). Broadly speaking, the Promotion Plan spelled out the expectations that Palmer had to satisfy to become a Full Professor. The Promotion Plan primarily emphasized that Palmer needed to substantially increase her scholarly output. Meanwhile, in another section entitled "Regarding Technology," the Promotion Plan related that Palmer should also work toward developing a digital art skillset and improve her technology skills. Recognizing that she needed to develop those types of digital art skills, Palmer likewise established personal "goals for improvement" related to technology. See J.A. 1134.
From 2014 to 2016, Palmer worked toward meeting the goals set forth in the Promotion Plan. Perhaps most important, Liberty administrators recognized that Palmer had substantially increased her scholarly work and presented her work at peer-reviewed conferences. As a result, Palmer was promoted to Full Professor in October 2016 - at the age of 77. At that time, Dean Hayes - who supported Palmer's promotion efforts - related in correspondence that Palmer had "satisfactorily completed a three-year plan to increase . . . the quantity and quality of her creative output, exhibit her work, present at peer-reviewed conferences, publish as appropriate, improve her teaching, and meaningfully participate in . . . university functions." See J.A. 979.
Around that same time period, Palmer also received annual Portfolio evaluations. Those evaluations - which contained recommendations from Department Chair Hayes and Dean Smith - recurrently emphasized the need for Palmer to improve her technology and digital art skills in order to teach digital art courses and to incorporate technology into her existing courses. See J.A. 938-39 (); id. at 940 (); id. at 941 (...
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