Ritter v. Mount St. Mary's College

• Decision Date: 08 August 1980
• Docket Number: Civ. A. No. N-80-632.
• Citation: 495 F. Supp. 724
• Parties: Madeline RITTER v. MOUNT ST. MARY'S COLLEGE.
• Court: U.S. District Court — District of Maryland

495 F. Supp. 724

Madeline RITTER v. MOUNT ST. MARY'S COLLEGE.

Civ. A. No. N-80-632.

United States District Court, D. Maryland.

August 8, 1980.

James M. Kramon, Baltimore, Md., Dona S. Kahn and JoAnne Dellaverson, Philadelphia, Pa., for plaintiff.

Henry R. Lord and Neil J. Dilloff, Baltimore, Md., for defendant.

NORTHROP, Chief Judge.

Plaintiff, Madeline Ritter, a fifty-seven year-old Catholic, brought this action against the defendant, Mount Saint Mary's College (hereinafter the College), alleging sex and age discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; the Equal Pay Act of 1963, 29 U.S.C. § 206(d); and the Age Discrimination in Employment Act (hereinafter the ADEA), 29 U.S.C. §§ 621-634. The matter is presently before the Court on defendant's motion to dismiss the complaint under Rule 12(b)(1), (b)(2), and (b)(6) of the Federal Rules of Civil Procedure. A hearing on the motion was conducted before this Court on August 5, 1980. Because affidavits and other materials outside the complaint have been presented, the Court will treat the defendant's motion as a motion for summary judgment. Fed.R.Civ.P. 12(b).

Plaintiff was a lay faculty member at the College, which is the oldest private, independent Catholic institution of higher learning in the United States. The College's objectives are to provide a liberal arts education and a Catholic experience for its students. All undergraduate students are required to take at least fifteen semester credit hours in philosophy, ethics, and theology prior to graduation. Students are encouraged to attend regular church services. Approximately 90% of the student body and 80% of the faculty are Catholic. In 1978, out of a total faculty of 76, there were 21 full-time priests and one nun on the faculty. Since its inception in 1808, the College has had a policy of recruiting and retaining qualified priests on its faculty. In an affidavit, the Chairman of the Board of Trustees of the College, the Rev. Msgr. Andrew J. McGowan, gave the following reasons for this policy:

The reasons for the policy of recruiting and retaining qualified priests on the College faculty are many: priests provide a spiritual dimension to the College consistent with its history, tradition and mission; priests provide spiritual services and perform other clerical functions for which they receive no extra compensation; the College pays substantially less salary to priests and, accordingly, financial considerations militate in favor of employing priests over lay faculty; and priests are necessary to teach the required theology courses offered by the College.

Affidavit of Rev. Msgr. Andrew J. McGowan in Support of Motion to Dismiss at 2.

Plaintiff was considered for tenure in late 1978 along with four other faculty members, of which one was a priest — Father Vincent P. Malloy. On December 20, 1978, plaintiff was advised by the President of the College, Dr. Robert J. Wickenheiser, that she had been denied tenure. Two other lay faculty members were also denied tenure, and a tenure decision regarding the remaining lay faculty member had been postponed. Father Malloy was given tenure.¹ Plaintiff appealed her denial of tenure to the College's Board of Trustees,² which affirmed the President's decision. In late March 1979, plaintiff accepted a one-year terminal contract at the College, which expired in June 1980. After having apparently complied with the administrative prerequisites of Title VII, plaintiff filed this action in March 1980.

The College contends that 1) this Court lacks personal jurisdiction over the College; 2) this Court lacks subject matter jurisdiction over the case; and 3) the complaint fails to state a claim upon which relief may be granted. The College bases these contentions on the grounds that Title VII, the Equal Pay Act, and the ADEA do not express a clear, affirmative intention to include within their scope religious, non-profit, educational institutions such as the College. Assuming, arguendo, these statutes do express such an intention, the College submits that the Free Exercise and Establishment Clauses of the First Amendment to the United States Constitution prohibit this Court from considering the plaintiff's claims:

The College's rights under the Establishment Clause would be violated because of excessive governmental entanglement into the College's internal decisionmaking and administrative affairs with respect to its faculty, including clergymen, and the policy of the College in seeking to retain qualified priests on its faculty. The College's rights of free exercise of its religious practices will be unconstitutionally burdened, inter alia, by the Court's review of (1) the granting of tenure to a priest, Reverend Malloy, as opposed to Mrs. Ritter, (2) clergy holding tenured positions in the faculty, (3) clergy holding administrative positions, (4) the tenure policies of the College as they may be influenced by consideration of clergymen eligible for tenure, and (5) faculty salaries of lay and clerical faculty.

Motion to Dismiss at 2-3.

The starting point for this Court's analysis must be NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979), where the Supreme Court held that church-operated schools³ teaching both religious and secular subjects were not subject to the jurisdiction of the National Labor Relations Act. The Court stated that where the exercise of a federal regulatory statute over a religious institution raises serious first amendment questions, a court must first determine whether the statute provides jurisdiction over the institution. The test used to make this determination is whether there was a "clear expression of an affirmative intention of Congress" to include religious institutions within the scope of the statute. 440 U.S. at 504, 99 S.Ct. at 1320. In Catholic Bishop, the Supreme Court found "no consideration" by Congress of church-operated schools in either the Act or its legislative history. Id. The Court therefore excluded such schools from the jurisdiction of the Act.

Title VII prohibits an employer from discriminating against an employee on the basis of sex. 42 U.S.C. § 2000e-2(a)(1). Stressing the absence of any mention of religious institutions from the definition of "person" or "employer" in Title VII, 42 U.S.C. § 2000e(a) & (b), the College maintains there was no clear, affirmative intention of Congress to include religious institutions within the ambit of Title VII.

The courts which have construed the applicability of Title VII to religious institutions in light of Catholic Bishop, however, have concluded that Title VII does apply to religiously affiliated institutions. Dolter v. Wahlert High School, 483 F.Supp. 266 (N.D. Iowa 1980); EEOC v. Pacific Press Publishing Ass'n, 482 F.Supp. 1291 (N.D.Cal.1979). Section 702 of Title VII, 42 U.S.C. § 2000e-1 provides an exemption for religious organizations to discriminate on the basis of religion:

This subchapter shall not apply . . to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

Section 703 of Title VII, 42 U.S.C. § 2000e-2(e)(2) provides a similar exemption:

It shall not be an unlawful employment practice for a school, college, university, or other educational institution or institution of learning to hire and employ employees of a particular religion if such school, college, university, or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion.

Unless this Court were to regard these statutes as mere surplusage, it is thus clear that Congress exempted religiously affiliated schools only from religious discrimination.⁴ Accord McClure v. Salvation Army, 460 F.2d 553, 557-58 (5th Cir.), cert. denied, 409 U.S. 896, 93 S.Ct. 132, 34 L.Ed.2d 153 (1972) (pre-Catholic Bishop analysis). The only case to the contrary, EEOC v. Mississippi College, 451 F.Supp. 564 (S.D.Miss.), appeal docketed, No. 78-3123 (5th Cir. Sept. 27, 1978), is less than persuasive in its reasoning. This Court therefore concludes that Congress has shown a clear, affirmative intention to include religiously affiliated schools within the scope of Title VII.

Turning to the Equal Pay Act, 29 U.S.C. § 206(d)(1), this Court agrees with the defendant that under the Catholic Bishop test Congress did not demonstrate a clear, affirmative intention to include church-affiliated schools within the Act's jurisdiction. Plaintiff has not pointed to anything in the legislative history of the Act to indicate this intention. She does point to an exemption in the Fair Labor Standards Act, which governs the Equal Pay Act, contained at 29 U.S.C. § 213(a)(3). This exemption applies to "any employee employed by an establishment which is an amusement or recreational establishment, organized camp, or religious or nonprofit educational conference center" operated on a seasonal basis. Plaintiff makes the superficially appealing argument that if Congress had intended to exempt all religious organizations from the ambit of the Equal Pay Act, there would have been no need to carve out an exception for this narrow type of religious organization.

This Court believes, however, that this statutory reference fails to meet the "clear, affirmative intention" requirement of Catholic Bishop. Although this Court employed a similar "surplusage" rationale in its analysis of Title VII, the sweeping language of 42...