Kennedy v. St. Joseph's Ministries, Inc.

657 F.3d 189, 2011 WL 4068458

• Court: Court of Appeals for the Fourth Circuit
• Decided: September 14, 2011
• Docket: 10-1792
• Status: Published

Opinions

Reversed and remanded by published opinion. Judge SHEDD wrote the majority opinion, in which Judge WYNN joined. Judge KING wrote a dissenting opinion.

OPINION

SHEDD, Circuit Judge:

Lori Kennedy filed a complaint under Title VII against her former employer, Villa St. Catherine, Inc. (St. Catherine),¹ alleging that it engaged in religious discrimination and retaliation against her. After the district court² denied St. Catherine’s motion for summary judgment, St. Catherine filed this interlocutory appeal, contending that the plain language of 42 U.S.C. § 2000e-l(a), the religious organization exemption, bars Kennedy’s claims. In answering the question that is properly before us, we agree with St. Catherine and, accordingly, reverse the district court’s decision.

I.

St. Catherine is a tax-exempt religious organization which operates a nursing-care facility in Emmitsburg, Maryland.³ It conducts itself under the direction of the Daughters of Charity, a religious order within the Roman Catholic Church, and maintains its facility in accordance with Catholic principles by engaging in numerous religious exercises. For instance, prayers are read over the intercom several times a day, the facility holds Catholic Mass on Wednesdays, and communion is available daily. In addition, a crucifix is displayed on the wall of every resident’s room. Statues of the Virgin Mary, Jesus, and St. Catherine’s patron saint (St. Catherine Laboure) adorn the facility’s landscape. St. Catherine provides new employees with a handout entitled “St. Catherine’s Nursing Center Mission, Vision, and Values,” which explains that “St. Catherine’s Nursing Center is a family of faith rooted in the loving ministry of Jesus as healer, and in the Catholic tradition of service.” (J.A. at 24, 31). Likewise, the employee handbook affirms St. Catherine’s Catholic identity.

Against this backdrop, St. Catherine employed Kennedy from 1994 to 2007 as a geriatric nursing assistant. Kennedy is a member of the Church of the Brethren and, “as a matter of religious principle,” wears “modest garb that includes long dresses/skirts and a cover for her hair.” (J.A. at 8-9). At some point during Kennedy’s employment, the Assistant Director of Nursing Services informed Kennedy that her attire was inappropriate for a Catholic facility and that it made residents and their family members feel uncomfortable. Kennedy informed the Assistant Director that her attire was a function of her religious beliefs and that she would not change it. Thereafter, Kennedy’s employment was terminated on May 17, 2007.

In response, Kennedy filed this action, alleging claims under Title VII for religious harassment, retaliatory discharge, and discriminatory discharge on the basis of religion. St. Catherine immediately moved for summary judgment,⁴ arguing that as a “religious organization” it is exempt from Title VII’s reach as to claims of religious discrimination. The district court agreed with St. Catherine that Kennedy’s claim for discriminatory discharge was barred but concluded that her religious harassment and retaliation claims are cognizable under Title VII. St. Catherine requested that the district court certify the order for interlocutory appeal under 28 U.S.C. § 1292(b), noting the potential broad-reaching effect of the ruling. The district court granted the request, and a panel of this court subsequently granted St. Catherine’s petition for permission to appeal.⁵

II.

On appeal, St. Catherine argues that the plain language of § 2000e-l(a), the religious organization exemption, makes clear that Title VII does not apply to claims for religious harassment and retaliation against religious organizations.⁶ We review such questions of statutory interpretation de novo. United States v. Ide, 624 F.3d 666, 668 (4th Cir.2010). “Our first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.” Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). If the statute is unambiguous, “our inquiry into Congress’ intent is at an end, for if the language is plain and the statutory scheme is coherent and consistent, we need not inquire further.” William v. Gonzales, 499 F.3d 329, 333 (4th Cir.2007) (internal quotation marks omitted). “[I]n looking to the plain meaning, we must consider the context in which the statutory words are used because ‘[w]e do not ... construe statutory phrases in isolation; we read statutes as a whole.’ ” Ayes v. United States Dep’t of Veterans Affairs, 473 F.3d 104, 108 (4th Cir.2006) (quoting United States v. Morton, 467 U.S. 822, 828, 104 S.Ct. 2769, 81 L.Ed.2d 680 (1984)).

With this legal framework in place, we turn to-the issue before us.

A.

Title VII makes it “an unlawful employment practice for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of,” inter alia, an individual’s “religion.” 42 U.S.C. § 2000e-2(a)(1). Title VII also includes a retaliation provision that makes it unlawful for an employer “to discriminate against any individual ... because he has opposed any practice made an unlawful employment practice by” Title VII. 42 U.S.C. § 2000e-3(a). Title VII is not without bounds however, and has long included an exemption for religious organizations in certain circumstances. Specifically, § 2000e-l(a) provides that:

This subehapter [of Title VII] 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.

42 U.S.C. § 2000e-l(a).⁷

Section 2000e-l(a) does not exempt religious organizations from Title VII’s provisions barring discrimination on the basis of race, gender, or national origin. Importantly, as originally enacted, the exemption applied only to personnel decisions related to carrying out an organization’s religious activities. See Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 334 n. 9, 107 S.Ct. 2862, 97 L.Ed.2d 273 (1987). The revised provision, adopted in 1972, broadens the exemption to include any activities of religious organizations, regardless of whether those activities are religious or secular in nature. Thus, “[t]he decision to employ individuals ‘of a particular religion’ under § 2000e-l(a) and § 2000e-2(e)(2) has been interpreted to include the decision to terminate an employee whose conduct or religious beliefs are inconsistent with those of its employer.” Hall v. Baptist Mem’l Health Care Corp., 215 F.3d 618, 624 (6th Cir.2000).

As St. Catherine notes, the exemption for religious organizations provides that the “subchapter,” that is, § 2000e, “shall not apply” with respect to the “employment” of individuals “of a particular religion.” The district court determined that the term “employment” was synonymous with what it termed “employment decisions” like hiring and firing. (J.A. at 70). On appeal, Kennedy presses this reading of the statute, conceding that § 2000e-l(a) bars her discriminatory discharge claim but contending that the exemption does not reach harassment or retaliation claims.

This narrow reading of “employment” is simply incompatible with the actual language of § 2000e-l(a). First, “as in all statutory construction, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” Bilski v. Kappos, — U.S. -, 130 S.Ct. 3218, 3226, 177 L.Ed.2d 792 (2010) (internal quotation marks and alterations omitted). Today, as at the time § 2000e-l(a) was originally enacted, “employment” means “the relationship between master and servant” and “the state of being employed”. Black’s Law Dictionary 9th ed.; see also Merriam-Webster’s Collegiate Dictionary (11th Ed. 2004) (defining “employment” as “activity in which one engages or is employed” or “the act of employing: the state of being employed”); Associated Gen. Contractors of America, Houston Chapter, 143 N.L.R.B. 409, 412, enforced, 349 F.2d 449 (5th Cir.1965) (“‘[E]mployment’ connotes the initial act of employing as well as the consequent state of being employed.”). As the Second Circuit has explained:

In instances where Congress uses terms — such as ... employment — “that have accumulated settled meaning under ... the common law,” courts generally infer, unless the statute indicates otherwise, that “Congress means to incorporate the established meaning of these terms,” e.g., “the conventional master-servant relationship as understood by common-law agency doctrine.”

Barfield v. New York City Health & Hosps. Corp., 537 F.3d 132, 141 (2d Cir. 2008) (quoting Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992)). This definition, which covers the breadth of the relationship between the employer and employee, clearly indicates that § 2000e-l(a) should not be limited to hiring and firing decisions.

The use of the term “employment” elsewhere in Title VII buttresses this conclusion. Congress used the term “employment” in the operative section of Title VII, labeling as unlawful the failure or refusal “to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment ” on discriminatory grounds. 42 U.S.C. § 2000e-2(a)(l) (emphasis added). Again, the term “employment” in this section encompasses more than hiring or firing; if the term were so limited, the second clause would be superfluous. See Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702, 707, n. 13, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978) (internal quotation marks omitted) (noting that the clause “terms, conditions, or privileges of employment” evinces Congress’ intent “to strike at the entire spectrum of disparate treatment of men and women” in employment). Moreover, there is a “presumption that a given term is used to mean the same thing throughout a statute.” Brown v. Gardner, 513 U.S. 115, 118, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994). “Employment,” as used throughout Title VII, simply covers a much broader understanding than mere hiring and firing. Indeed, if Congress had intended to limit § 2000e-1(a) to hiring and firing it could have copied the first clause from § 2000e-2(a)(l), exempting religious organizations from Title VII with respect to the decision “to hire or to discharge” an individual of a particular religion. It did not, and instead chose the broader term “employment.”

Kennedy’s harassment and retaliation claims both arise from her “state” of “being employed.” In addition, the “subchapter” referred to in § 2000e-l(a) includes both § 2000e-2(a)(l), which covers harassment and discriminatory discharge claims, and § 2000e-3(a), which covers retaliation claims. See 42 U.S.C. § 2000e-3(a) (retaliation); Meritor Sav. Bank v. Vinson, 477 U.S. 57, 64, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (holding harassment is discrimination on the basis of the “terms, conditions, or privileges of employment” under § 2000e-2(a)(l)). Thus, Kennedy’s three claims — discharge, harassment, and retaliation — all arise from the “subchapter” covered by the religious organization exemption, and they all arise from her “employment” by St. Catherine. See Saeemodarae v. Mercy Health Serv., 456 F.Supp.2d 1021, 1041 (N.D.Iowa 2006) (holding retaliation claim fell within the exemption because the retaliation provision is within the same “subchapter”); Lown v. Salvation Army, Inc., 393 F.Supp.2d 223, 254 (S.D.N.Y.2005) (same).

This conclusion conforms with the purpose behind the exemption as well:

Congress intended the explicit exemptions to Title VII to enable religious organizations to create and maintain communities composed solely of individuals faithful to their doctrinal practices, whether or not every individual plays a direct role in the organization’s “religious activities.”

Little v. Wuerl, 929 F.2d 944, 951 (3d Cir.1991). Thus, in Little, a Catholic school was permitted to decline to renew a teacher’s contract when she remarried: “permission to employ persons ‘of a particular religion’ includes permission to employ only persons whose beliefs and conduct are consistent with the employer’s religious precepts.” Id.

In sum, if Congress had wished to limit the religious organization exemption to hiring and discharge decisions, it could clearly have done so. Instead, it painted with a broader brush, exempting religious organizations from the entire “subchapter” of Title VII with respect to the “employment” of persons of a “particular religion.” This exemption “reflect[s] a decision by Congress that the government interest in eliminating religious discrimination by religious organizations is outweighed by the rights of those organizations to be free from government intervention.” Id.

Further, a contrary interpretation of “employment” would lead to nonsensical results. Kennedy admits that St. Catherine could fire her for her religion without any recourse.⁸ But, by first asking if she would consider changing her clothing before terminating her — i.e., by giving her the opportunity to keep her job — St. Catherine would suddenly open itself up to the strictures of Title VII. Such an approach cannot be squared with Congress’ desire in the first instance to permit a cooperative, accommodative approach to workplace discrimination. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974) (noting “[cjooperation and voluntary compliance were selected as the preferred means for achieving” the “equality of employment opportunities by eliminating [discrimination]”). Instead, Kennedy’s view of the statute would counsel religious organizations to immediately discharge an employee over any religious issue rather than consider some attempt at compromise to permit the employee to remain employed.⁹

III.

In his dissent, Judge King insists that we should not decide this appeal. The district court; a panel of this court (comprised of Judge Agee, Judge Motz, and Judge King); two members of this panel; and (as noted above) both parties, agree that we have jurisdiction over this interlocutory appeal. However, Judge King now declares we should not hear it. Noting that he was on the panel that granted permission to appeal, Judge King states that after full briefing and oral argument he has decided that action was “improvident.” (Dissent Op. at 197-98). In his view, because it is “far from clear” that Kennedy has stated a viable Title VII claim, (Dissent Op. at 197-98), we should dismiss the appeal and “wait for the district court to determine whether Kennedy has stated and can prove” her claims, (Dissent Op. at 200). To our knowledge, there is nothing in the record before us now that was unavailable at the time certification was granted, and the parties do not address — much less oppose — the propriety of the certification in their briefs.

We disagree with Judge King for several reasons. First, the requirements of § 1292(b) are clearly satisfied in this case. That provision provides that certification by a district court is appropriate if the district court’s order “involves a controlling question of law as to which there is substantial ground for difference of opinion” and “immediate appeal ... may materially advance the ultimate termination of the litigation.” Both requirements are met in this case. We are faced with a pure question of law and our resolution of it terminates the case. It was thus properly within our discretion to permit the appeal. Nothing has changed since we granted permission to appeal which causes § 1292(b) to be inapplicable.

Second, there is no doctrine counseling courts to avoid ruling on legal issues involving undisputed facts that are before them. To the contrary, that is the crux of Article III power and exercising such authority does not create an advisory opinion. Courts have a “virtually unflagging obligation ... to exercise the jurisdiction given them.” Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). Thus, even the Supreme Court has answered legal questions posed in § 1292(b) orders before the factual development of the record has occurred. See, e.g., Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 179, 102 S.Ct. 2374, 72 L.Ed.2d 765 (1982) (noting that Sumitomo moved to dismiss Title VII case on ground that statute did not apply to its actions “[wjithout admitting the alleged discriminatory practice,” and that the circuit court accepted an interlocutory appeal under § 1292(b) denying the motion to dismiss).

Third, we are fully cognizant of the doctrine of constitutional avoidance. See Snyder v. Phelps, 580 F.3d 206, 227 (4th Cir.2009) (Shedd, J., concurring), affirmed on other grounds - U.S.-, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011). In fact, as noted supra note 5, we are actually applying that doctrine in this case to avoid reaching St. Catherine’s First Amendment argument. However, Judge King’s reliance on some form of statutory avoidance simply has no place in this case. Indeed, if the district court in this case had, for instance, granted St. Catherine’s motion to dismiss for failure to state a claim without addressing Title VII’s religious exemption, we nonetheless would be free on appeal to affirm on the statutory basis without considering the merits. See, e.g., Pitt County v. Hotels.com, L.P., 553 F.3d 308, 311 (4th Cir.2009) (noting “we are not limited to evaluation of the grounds offered by the district court to support its decision, but we may affirm on any grounds apparent from the record.”) (internal quotation marks and alterations omitted). Judge King’s proposed course would lead to an anomalous result — we could address the statutory issue even if the district court declined to do so, but we should not address it when — as here — it is the only issue properly before us.

Finally, Judge King’s approach would also waste judicial resources by mandating that we remand a case which he believes lacks any substantial merit for further proceedings and (possibly) costly discovery. This waste of judicial resources would not be limited to this case because Judge King’s approach would counsel district courts to refrain from dismissing cases on statutory legal grounds when it is possible that the party will lose on the merits at some indeterminate point in the future. As we have noted before, “[rjepetitive hearings, followed by additional appeals, waste judicial resources and place additional burdens on ... district and appellate judges” while also siphoning those resources from more worthwhile cases. Doe v. Chao, 511 F.3d 461, 465-66 (4th Cir. 2007) (internal quotation marks omitted).

IV.

Because the plain language of § 2000e-1(a) exempts religious organizations like St. Catherine from Kennedy’s claims of religious discrimination, the district court erred in denying St. Catherine’s motion for summary judgment. We therefore reverse the district court’s order and remand with instructions to enter judgment in favor of St. Catherine.

REVERSED AND REMANDED

1 . St. Catherine recently became St. Joseph's Ministries, Inc. We refer to the entity as "St. Catherine,” its title at the time the relevant events in this action occurred.

2 . The parties agreed to proceed before a magistrate judge. For the purposes of this opinion, we treat the magistrate judge as the "district court.”

3 .Because we are reviewing the district court's denial of summary judgment to St. Catherine, we view the factual evidence in the light most favorable to Kennedy. Walker v. Prince George's County, 575 F.3d 426, 427 (4th Cir.2009).

4 . St. Catherine filed a motion for summary judgment, rather than a motion to dismiss, because it appended several documents indicating its religious character. While there has been no discovery on the merits of Kennedy’s claims, there are no facts in dispute regarding the issue before us — indeed, Kennedy concedes that St. Catherine is a religious organization under Title VII.

5 . Although Kennedy opposed St. Catherine’s request that the district court certify the order, she did not oppose St. Catherine’s petition for permission to appeal before this court.

6 .St. Catherine also argues that the canon of constitutional avoidance should be applied to § 2000e-l(a). Because we believe the plain language supports St. Catherine's reading of the statute, we do not resort to this canon, although we note that the district court itself found First Amendment implications: "if this case marches forward to its ultimate resolution through trial, which in all likelihood would encompass testimony about religious beliefs, that would be the type of entanglement Congress intended to avoid by enacting the exemption.” (J.A. at 75).

7 . In addition to this statutory exemption, we have also recognized a “ministerial exception,” to federal antidiscrimination laws compelled by the First Amendment. Rayburn v. Gen. Conference of Seventh-Day Adventists, 772 F.2d 1164, 1166-67 (4th Cir.1985). This exception, which exempts ministerial employees more broadly from anti-discrimination laws, is not at issue in this case.

8 . To the extent this reading of the exemption purports to impinge on the employee’s free exercise rights, "it was the Church ... and not the Government, who put [the employee] to the choice of changing his religious practices or losing his job.” Amos, 483 U.S. at 337 n. 15, 107 S.Ct. 2862.

9 . In reaching an opposite conclusion, the district court relied, in part, on the EEOC Compliance Manual, which provides that “the exemption only applies to hiring and discharge, and does not apply to terms, conditions, or privileges of employment, such as wages or benefits.” EEOC Compliance Manual § 2 (available at http://www.eeoc.gov/policy/docs/ threshold.html# 2-III-B-4-b) (last visited May 25, 2011).

Because we believe the exemption's language is unambiguous, we need not defer to the manual. Moreover, this interpretation, which is viewed under Skidmore deference, contains no attendant rationale, lacks the power to persuade, and does not warrant deference. See United States Dep’t of Labor v. N.C. Growers Ass’n, 377 F.3d 345, 354 (4th Cir.2004) (declining to grant Skidmore deference to Labor Department interpretation that lacked "thoroughness” and failed to provide an "explanation” to support its rationale). The provision is a far cry from the cases cited by Kennedy, in which the Supreme Court referenced the Compliance Manual. See e.g., Clackamas Gastroenterology Assoc., P.C. v. Wells, 538 U.S. 440, 448-49, 123 S.Ct. 1673, 155 L.Ed.2d 615 (2003) (discussing Compliance Manual provision that reviewed sixteen factors for consideration drawn from an earlier Supreme Court case).