Weissman v. Congregation Shaare Emeth

• Decision Date: 28 October 1994
• Docket Number: No. 94-1464,94-1464
• Citation: 38 F.3d 1038
• Parties: 66 Fair Empl.Prac.Cas. (BNA) 113, 65 Empl. Prac. Dec. P 43,409, 63 USLW 2320 Sidney WEISSMAN, Appellant, v. CONGREGATION SHAARE EMETH; Joy Liss, in her capacity as President, Congregation Shaare Emeth, Appellees. Equal Employment Opportunity Commission, Amicus Curiae.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1038

38 F.3d 1038

66 Fair Empl.Prac.Cas. (BNA) 113,

65 Empl. Prac. Dec. P 43,409, 63 USLW 2320

Sidney WEISSMAN, Appellant, v. CONGREGATION SHAARE EMETH; Joy Liss, in her capacity as President, Congregation Shaare Emeth, Appellees Equal Employment Opportunity Commission, Amicus Curiae.

No. 94-1464.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 12, 1994.

Decided Oct. 28, 1994.

John D. Lynn, St. Louis, MO, argued, for appellant.

Joseph H. Mueller, St. Louis, MO, argued (Robyn G. Fox, on the brief), for appellee.

John F. Suhre, Washington, DC, argued, for amicus curiae.

Before McMILLIAN, Circuit Judge, BRIGHT, Senior Circuit Judge, and LOKEN, Circuit Judge.

McMILLIAN, Circuit Judge.

Sidney Weissman appeals from a final order entered in the United States District Court for the Eastern District of Missouri ¹ granting partial summary judgment in favor of Congregation Shaare Emeth, and its president, holding that the Age Discrimination in Employment Act (ADEA) did not apply to pervasively religious institutions. Weissman v. Congregation Shaare Emeth, 823 F.Supp. 1483 (E.D.Mo.1993) (memorandum and order). For reversal, Weissman argues the district court erred in granting partial summary judgment because his claim of age discrimination can be adjudicated without creating a serious risk of excessive government entanglement with religion. For the reasons discussed below, we reverse the judgment of the district court and remand the case to the district court for further proceedings consistent with this opinion.

I. BACKGROUND

Weissman was employed as the temple administrator for the Defendant Congregation Shaare Emeth ("Temple"), a Reform Jewish Temple, and was terminated in December 1990. At the time, Weissman was 63 years old. He was replaced by a 37-year-old person. Weissman was employed by the Temple from January 13, 1986, to December 21, 1990. The Temple is one of the largest in the country with approximately 2,000 families in the congregation. As temple administrator, Weissman was responsible for logistical support of activities including supervision of administrative, clerical, building maintenance, and custodial personnel. He also managed property and equipment and maintained financial records. He was not a member of the clergy and played no role in decisions relating to spiritual matters. As temple administrator, Weissman reported to Harvey Schneider, the president of the congregation. The job description also requires that the temple administrator have a positive attitude toward Jewish life and a Jewish background enabling the administrator to understand the work of the Temple, its purpose and highest ideals and goals. The temple administrator is to provide the initial point of contact with prospective members, and he is required to promote a positive image of the Temple among its members and to the general community by being accessible and knowledgeable.

The decision to terminate Weissman was made by the Temple's executive committee, which consisted entirely of lay persons. According to Harvey Schneider, the president of the congregation at the time of the termination, he told Weissman that "things were not working out." In his deposition, Schneider cited the following specific reasons for Weissman's termination: the failure to properly supervise custodial personnel, the purchase of a facsimile machine which was too expensive, the release of a membership list to a congregation member, the failure to resolve a dispute between the chief custodian and a secretary, and his lack of sufficient familiarity with the computer system. In response to Weissman's interrogatories, the Temple also cited a general dissatisfaction with Weissman's performance and his failure to remedy deficiencies after he had been advised of them. Weissman denied fault in any of these matters.

Weissman alleged he was terminated because of his age in violation of the ADEA. He also alleged sex discrimination in violation of Title VII, 42 U.S.C. Sec. 2000e. Defendants filed a motion for partial summary judgment on the age discrimination claim on the ground that the ADEA does not apply to religious institutions such as the Temple. Alternatively, defendants argued that even if the ADEA applied generally to religious institutions, it would violate the First Amendment to apply the ADEA to defendants on the facts of the present case. The district court held that because the application of the ADEA to the Temple presented a significant risk of infringement upon the First Amendment, the ADEA did not apply to such religious institutions and granted partial summary judgment in favor of defendants. Id. at 1486. Weissman filed a motion for reconsideration, citing the recent circuit opinions discussed below, which the district court denied. 839 F.Supp. 680 (1993). Weissman voluntarily dismissed the Title VII claim in order to bring this appeal. The Equal Employment Opportunity Commission (EEOC) filed a brief as amicus curiae in support of Weissman.

II. DISCUSSION

We review a grant of summary judgment de novo. The question before the district court, and this court on appeal, is whether the record, when viewed in the light most favorable to the non-moving party, shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986); Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir.1992); St. Paul Fire & Marine Insurance Co. v. FDIC, 968 F.2d 695, 699 (8th Cir.1992).

In this appeal, Weissman's precise claim is that the district court erred in concluding that the Temple was not an "employer" as defined by 29 U.S.C. Sec. 630(b) for purposes of the Age Discrimination In Employment Act (ADEA). ² Under a literal reading of the statutory definition, the Temple is an "employer" covered by the ADEA. However, the ADEA is silent on the question whether religious institutions are employers. Furthermore, the legislative history lacks any indication that religious institutions were not meant to be covered by the statute. The present controversy therefore arises because of the Constitution's special protection for religious freedom.

In its motion for partial summary judgment, the Temple argued that "[a]pplication of the ADEA to employment decisions regarding [the Temple] would raise serious constitutional issues." The Temple then drew an analogy between the present case and the Supreme Court's opinion in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979) (Catholic Bishop). In Catholic Bishop, the Court held that school teachers employed by parochial schools were not covered under the National Labor Relations Act (NLRA). In the present case, the district court applied the two-part Catholic Bishop prudential test. The district court framed the issue in the following manner: "The motion presents the legal question whether a religious institution such as [the Temple] is an 'employer' as that term is used in the ADEA." Weissman, 823 F.Supp. at 1484. The district court noted that a majority of the courts which had considered this question had held that the ADEA did not extend to religious institutions. Id. (citing cases). However, two of three cases that held the ADEA did not apply to religious institutions have since been reversed. See Geary v. Visitation of the Blessed Virgin Mary Parish School, 7 F.3d 324 (3d Cir.1993) (Geary); DeMarco v. Holy Cross High School, 4 F.3d 166 (2d Cir.1993) (DeMarco). A third case, Cochran v. St. Louis Preparatory Seminary, 717 F.Supp. 1413 (E.D.Mo.1989) (Cochran), was not appealed to this court. The district court was correct to apply the Catholic Bishop test to the question of the ADEA's scope, but in resolving the first part of that test, i.e. whether application of the ADEA in the present case would present a significant risk of infringement upon the First Amendment, the district court did not properly distinguish between the application of a comprehensive regulatory statute like the NLRA and the comparatively minimal intrusions of the ADEA. A careful examination of the ADEA's limited goals reveals the ADEA will rarely weave a web large enough to cause the significant risk of entanglement which the looming presence of the NLRA threatens.

A. The Catholic Bishop model for statutory construction.

In Catholic Bishop, the Court was faced with the question whether the National Labor Relations Board (NLRB) could exercise jurisdiction over teachers in church-operated schools. The Court began its analysis with the long-established principle that "an Act of Congress ought not be construed to violate the Constitution if any other possible construction remains available." 440 U.S. at 500, 99 S.Ct. at 1318. With this in mind, the Court narrowly focused on whether the exercise of the NLRB's jurisdiction "present[ed] a significant risk that the First Amendment will be infringed." Id. at 502, 99 S.Ct. at 1319. As it addressed this question, the Court importantly noted that resolution of unfair labor practice charges "in many instances would necessarily involve inquiry into the good faith of the position asserted by the clergy-administrators and its relationship to the school's religious mission." Id. The Court also worried about the introduction of mandatory collective bargaining over terms and conditions of employment and the potential for significant encroachment of the NLRB upon the school's former position of autonomous management. These factors led the Court to conclude that serious First Amendment questions would follow from application of the NLRA to teachers in church-operated schools.

The Court next considered whether the NLRA must be read to confer jurisdiction on the NLRB over...