Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-6-2006

Petruska v. Gannon Univ
Precedential or Non-Precedential: Precedential

Docket No. 05-1222




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Precedential

               IN THE UNITED STATES COURT
                       OF APPEALS
                  FOR THE THIRD CIRCUIT


                     Case No: 05-1222


                 LYNETTE M. PETRUSKA,

                             Appellant

                              v.

 GANNON UNIVERSITY; THE BOARD OF TRUSTEES
                        OF
  GANNON UNIVERSITY; WILLIAM I. ALFORD, II;
    ROBERT H. ALLSHOUSE; JOSEPH F. ALLISON;
 MICHAEL P. ALLISON, REV.; JAMES A. BALDAUF;
    L. SCOTT BARNARD; GEORGE J. BEHRINGER;
 ARNOLD E. BERGQUIST; LAWRENCE E. BRANDT,
  REV. MSGR.; ROBERT L. BRUGGER, REV. MSGR.;
DONALD M. CARLSON; DANIEL C. CARNEVAL, D.O.;
   STEPHANIE DOMITROVICH, HON.; THOMAS L.
                      DOOLIN;
    JAMES J. DURATZ; ANTOINE M. GARIBALDI;
                      THOMAS
 C. GUELCHER; WILLIAM M. HILBERT, SR.; BRIAN
   J. JACKMAN; JAMES W. KEIM, JR.; MARY RITA
    KUHN, SR., SSJ; THOMAS J. LOFTUS; ANNE C.
   MCCALLION; JOSEPH T. MESSINA; MICHAEL J.
    NUTTALL; JOHN E. PAGANIE; DENISE ILLIG
                        ROBISON;
 JAMES J. RUTKOWSKI, JR.; JAMES A. SCHAFFNER;
    HELEN M. SCHILLING, M.D., D.D.S.; JOHN M.
   SCHULTZ, VERY REV.; ROBERT J. SMITH, REV.
    MSGR.; LAWRENCE T. SPEICE, REV. MSGR.;
WILLIAM C. SPRINGER; JAMES G. TOOHEY; DONALD
W. TRAUTMAN, BISHOP; ANASTASIA VALIMONT, SR.
      SSJ; RICARDA VINCENT, SR. SSJ; MELVIN
                    WITHERSPOON;
ALL OTHER KNOWN AND UNKNOWN MEMBERS OF
                      THE BOARD
  OF TRUSTEES OF GANNON UNIVERSITY DURING
                           THE
 TENURE OF DONALD W. TRAUTMAN, as members of
                            the
     Board of Trustees of Gannon University; DAVID
     RUBINO, MSGR., in their individual and official
     capacities; NICHOLAS ROUCH, REV., in their
             individual and official capacities


      On Appeal from the United States District Court
          For the Western District of Pennsylvania
                (D.C. Civ. Action No. 04-80)
     District Judge: The Honorable Sean J. McLaughlin


                  Argued August 16, 2006 *



       *
         This case was originally argued on October 20, 2005,
before Judges Smith, Becker, and Nygaard. On May 23, 2006,
an opinion by a majority of the original panel was filed,
affirming in part, reversing in part, and remanding the case for
further proceedings. Judge Smith filed a dissenting opinion on
      BEFORE: SMITH, COWEN, and GREENBERG

                  (Filed: September 6, 2006 )


C. John Pleban [Argued]
Pleban & Associates
2010 South Big Bend Boulevard
St. Louis, Missouri 63117
Counsel for Appellant

Evan C. Rudert [Argued]
Elderkin, Martin, Kelly & Messina
150 East 8th Street
Erie, Pennsylvania 16501

Arthur D. Martinucci [Argued]
Frank L. Kroto, Jr.
Quinn, Buseck, Leemhuis, Toohey & Kroto
2222 West Grandview Boulevard
Erie, Pennsylvania 16506-4508
Counsel for Appellees


the same day. Judge Becker, who authored the majority opinion,
died on May 19, 2006, after the case had been circulated to the
full court, but before the opinions were filed. Appellants
petitioned for rehearing en banc or, in the alternative, rehearing
by a reconstituted panel. Because of this chain of events, the
Court granted the Appellants’ request for rehearing by a
reconstituted panel. Judge Nygaard subsequently recused
himself from the reconstituted panel. Judges Cowen and
Greenberg were selected at random to replace Judges Becker
and Nygaard.

                                3
Phillip J. Murren
Ball, Murren & Connell
2303 Market Street
Camp Hill, Pennsylvania 17011
Counsel for Amicus-Appellee

Stephen W. Fitschen
The National Legal Foundation
2224 Virginia Beach Boulevard, Suite 204
Virginia Beach, Virginia 23454
Counsel for Amicus-Appellee

                  OPINION OF THE COURT

SMITH, Circuit Judge:

       Former University Chaplain Lynette Petruska appeals an
order from the United States District Court for the Western
District of Pennsylvania dismissing her federal employment
discrimination and state law claims against Gannon University
(“Gannon” or “the University”), the private Catholic diocesan
college that employed her from July 16, 1997 until October 15,
2002. The District Court dismissed Petruska’s complaint for
lack of jurisdiction pursuant to Federal Rule of Civil Procedure
12(b)(1), holding that the “ministerial exception”–a doctrine
rooted in the First Amendment–barred her claims.

        This Court has not previously ruled on the viability or the
scope of the ministerial exception. Today, we join seven of our
sister circuits in adopting the exception and hold that it applies
to any claim, the resolution of which would limit a religious
institution’s right to choose who will perform particular spiritual
functions.


                                4
       Petruska’s Title VII discrimination and retaliation claims,
as well as her state civil conspiracy and negligent retention and
supervision claims, are barred by the ministerial exception
insofar as they implicate a church’s right to select its ministers
under the Free Exercise Clause. Because resolution of
Petruska’s fraudulent misrepresentation and breach of contract
claims do not limit Gannon’s free exercise rights, and because
an evaluation of these claims would not violate the
Establishment Clause, they are not precluded by the exception.
Nevertheless, Petruska has failed to plead fraud with
particularity as required by Federal Rule of Civil Procedure 9(b).
Accordingly, we will affirm the District Court’s order
dismissing Petruska’s Title VII discrimination and retaliation
claims, as well as her state civil conspiracy, negligent retention
and supervision, and fraudulent misrepresentation claims. For
the reasons set forth below, we will remand her breach of
contract claim for further consideration by the District Court.

I.     Factual and Procedural Background

       For purposes of a motion to dismiss, we must accept as
true–as did the District Court–the plaintiff’s factual allegations.
See Mortensen v. First Fed. Sav. & Loan, 

, 891 (3d
Cir. 1977) (explaining the standard of review for Rule 12(b)(1)
and Rule 12(b)(6) motions).1 Accordingly, the facts set forth


       1
       As discussed infra, Gannon’s motion to dismiss was
framed in the alternative. Although we conclude that it is most
properly construed as a Rule 12(b)(6) motion, we note that the
standard is the same when considering a facial attack under Rule
12(b)(1) or a motion to dismiss for failure to state a claim under
Rule 12(b)(6). 

.

                                5
below are drawn from Petruska’s First Amended Complaint.

        Gannon University is a private Catholic diocesan
college located in Erie, Pennsylvania. Gannon hired Petruska
as the University’s Director of Social Concerns on July 16,
1997. At that time, Reverend Nicholas Rouch was the
University Chaplain. When Rouch left to study in Rome for a
period of three years, he was promised that he could resume
his position as chaplain when he returned. In his absence, the
University appointed an interim chaplain, who held the
position until June of 1999. When the interim chaplain
resigned, then-President Monsignor David Rubino promoted
Petruska to permanent University Chaplain on July 1, 1999,
with the advice and consent of Bishop Trautman, the Chair of
Gannon’s Board of Trustees (the “Board”). Petruska was the
first female in Gannon’s history to serve in that position. As
such, and cognizant of the promise made to Rouch, Petruska
specifically sought assurances from Rubino that she would
not simply be replaced when Rouch returned or another
qualified male became available. Rubino assured her that
future decisions regarding her tenure as chaplain would be
based solely on her performance, not her gender.

       Several months after her appointment, in March of
2000, Rubino was forced to take a leave of absence when
allegations surfaced that he was having a sexual affair with a
female subordinate. Thereafter, another female employee
accused Rubino of sexual harassment, and Petruska was
instrumental in bringing this claim to the attention of Bishop
Trautman and then-Provost Dr. Thomas Ostrowski. Rubino
formally resigned in May of 2000, and Ostrowski was
appointed Acting President. Following Rubino’s resignation,


                              6
and at Bishop Trautman’s behest, Gannon began a campaign
to cover-up Rubino’s misconduct. Petruska strenuously–and
vocally–objected to the University’s response.2

       In July of 2000, Ostrowski met with Bishop Trautman, as
well as Rouch, who had by then returned from Rome. Bishop
Trautman notified Ostrowski that he had created a new
position–Vice-President for Mission and Ministry–and that he
had appointed Rouch to fill it. The position was created without
input from any other University officials and did not include a
job description. At that meeting, the Bishop informed
Ostrowski that he was to remove Petruska as University
Chaplain. When Ostrowski refused, Bishop Trautman instructed



       2
           Petruska’s activism with respect to gender and
harassment-related issues was not limited to her role in the
Rubino affair. In 1998, while she was still the Director of Social
Concerns, Petruska served on the University’s Sexual
Harassment Committee. At the time of her appointment to that
Committee, the University was in the process of revising its
sexual harassment policy, and several of Gannon’s lawyers had
advocated limiting the time period in which grievances could be
filed. Petruska opposed this proposal, and her view ultimately
prevailed.
        Moreover, after she became chaplain and subsequent to
Rubino’s resignation, Petruska was appointed as Chair of
Gannon’s Institutional Integrity Committee. In this position, she
was integrally involved in preparing a report for Gannon’s
Middle States accreditation, which criticized the University’s
policies and procedures related to discrimination and
harassment. Despite a request from Gannon’s President, the
Committee refused to modify portions of its report which were
critical of the University.

                                7
him to restructure the Chaplain’s Division by placing it under
the leadership of Rouch. Ostrowski also refused to take part in
the proposed restructuring.

       On July 28, 2000, Ostrowski told Petruska about his
meeting with Rouch and Bishop Trautman. He explained the
proposed restructuring and asked Petruska how she would
respond if the Chaplain’s Office were placed under Rouch’s
leadership. Petruska indicated that she would challenge this
decision, and Ostrowski conceded that the proposed action was
being taken on the basis of her gender. Although Ostrowski
stated that he would try to prevent the restructuring and
Petruska’s removal, he later explained that he could delay, but
not prevent, these events.

       On October 2, 2000, Petruska signed a revised contract,
which was equivalent to those of the other vice-presidents at
Gannon. Her contract was thereby extended until June 30, 2003.
 From March to May of 2001, Ostrowski repeatedly suggested
that Petruska consider accepting another position at Gannon,
because Bishop Trautman and Reverend Rouch would never let
her remain as University Chaplain. Ostrowski was removed
from consideration in the presidential search on April 19, 2001.

       On May 21, 2001, Dr. Antoine Garibaldi was appointed
President of Gannon and he began his tenure on July 1, 2001.
After Garibaldi became President, some of Petruska’s
responsibilities were reassigned and she was instructed to limit
her comments at University events.

      On August 21, 2002, Garibaldi notified Petruska that he
had decided to restructure and informed her that she would be


                               8
removed from the President’s Staff and that the Chaplain’s
Division would report to Rouch. Garibaldi did not present the
restructuring proposal to the University’s President’s Council as
required by Gannon’s Governance Manual. Petruska informed
Garibaldi that she knew that this action was being taken against
her because of her gender and told him that she would be open
to a “buy out” of her contract. Although Garibaldi indicated that
he would be willing to discuss the restructuring, he later
declined to discuss the matter with Petruska. After meeting with
Garibaldi, Petruska orally requested information about filing a
discrimination grievance with the University Review Council,
but was notified in a letter dated August 28, 2002 that the
University Review Council was not a proper forum because her
complaint was directed against the President and Chair of the
Board.

        On September 30, 2002, Rouch called Petruska and
indicated that he wanted to discuss the restructuring. She
declined to meet with him until she resolved her concerns about
the University’s discriminatory conduct with Garibaldi. That
same day, Petruska sent an e-mail to Garibaldi, stating that she
intended to speak publicly about the questionable motives
underlying the restructuring, but noted that she was willing to
meet with him to discuss how all parties could “move forward”
if Ricarda Vincent, the president of her community, was
permitted to attend. Garibaldi did not respond. Petruska later
learned that, during a telephone conversation between Bishop
Trautman and Vincent, the Bishop “yelled” at Vincent. The
next day, October 1, Vincent told Petruska that she could not
take any action against Gannon, nor was she to make any
comment about Gannon’s discriminatory conduct. Faculty,
staff, and students were informed of Petruska’s “demotion”


                               9
from the head of the Chaplain’s Division.

        On October 7, 2002, Rouch once again contacted
Petruska regarding the restructuring. In response, she sent an e-
mail to Garibaldi, noting that she had not yet received an answer
to her request for a meeting. The next day, Garibaldi responded
to Petruska’s e-mail, indicating that the University would take
“appropriate action” if she did not report to Rouch. Believing
that she was about to be fired, she tendered her resignation with
two-weeks notice on October 14, 2002. The following day,
Rouch and Bob Cline, Gannon’s Human Resources Director,
entered Petruska’s office and told her that her resignation was
accepted effective immediately.

       Based on these events, Petruska filed a complaint with
the Equal Employment Opportunity Commission (“EEOC”) on
August 20, 2003. Upon exhausting her administrative remedies,
she received a ninety-day “right-to-sue” letter. She filed this
action in the United States District Court for the Western
District of Pennsylvania against Gannon University, members of
the Board of Trustees (including Trautman, Garibaldi, and
Vincent), Rubino, and Rouch. Petruska asserted six claims: (1)
gender discrimination in violation of Title VII against all
Defendants; (2) retaliatory discrimination in violation of Title
VII against all Defendants; (3) fraudulent misrepresentation
against Gannon, Rubino, and Trautman; (4) civil conspiracy
against Trautman, Garibaldi, and Rouch; (5) breach of contract
against Gannon and Garibaldi; and (6) negligent supervision and
retention against Gannon and its Board. Gannon moved to
dismiss Petruska’s claims pursuant to Federal Rule of Civil
Procedure 12(b)(1) for lack of jurisdiction, or in the alternative,
pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure


                                10
to state a claim on which relief can be granted. The District
Court granted the motion, concluding that the ministerial
exception barred adjudication of Petruska’s claims.

II.    Gannon’s Motion to Dismiss

        The District Court granted the motion to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(1) for lack of
jurisdiction. Although we agree that the ministerial exception
applies in this case, we conclude that the exception does not act
as a jurisdictional bar, but rather, is best viewed as a challenge
to the sufficiency of Petruska’s claim under Rule 12(b)(6). See,
e.g., Elvig v. Calvin Presbyterian Church, 

, 955
(9th Cir. 2004); Bryce v. Episcopal Church in the Diocese of
Colorado, 

, 654 (10th Cir. 2002).

      At issue in a Rule 12(b)(1) motion is the court’s “very
power to hear the case.” 3 

. A Rule


       3
        As the District Court correctly noted, there are two types
of Rule 12(b)(1) motions: those that attack the complaint on its
face and those that attack subject matter jurisdiction as a matter
of fact. When considering a facial attack, “the Court must
consider the allegations of the complaint as true,” and in that
respect such a Rule 12(b)(1) motion is similar to a Rule 12(b)(6)
motion. 

. However, as the court
explained in Mortensen:

       The factual attack . . . differs greatly for here the
       trial court may proceed as it never could under
       12(b)(6) or Fed. R. Civ. P. 56. Because at issue in
       a factual 12(b)(1) motion is the trial court’s
       jurisdiction . . . there is substantial authority that

                                11
12(b)(6) motion, by contrast, tests the legal sufficiency of
plaintiff’s claim. In other words, for purposes of resolving a
Rule 12(b)(6) motion, the question is whether the plaintiff
would be able to prevail even if she were able to prove all of her
allegations. 

case, the question does not concern the court’s
power to hear the case–it is beyond cavil that a federal district
court has the authority to review claims arising under federal
law–but rather whether the First Amendment bars Petruska’s
claims. See 

(“Federal question
jurisdiction is statutorily established, giving district courts
‘original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.’”). In that
respect, as the Tenth Circuit noted in Bryce, assertion of the
ministerial exception–or, in that case, the “church autonomy
doctrine”–is akin to a government official’s defense of qualified
immunity, which is often raised in a Rule 12(b)(6) motion.

. The exception may serve as a barrier to


       the trial court is free to weigh the evidence and
       satisfy itself as to the existence of its power to
       hear the case.        In short, no presumptive
       truthfulness attaches to plaintiff’s allegations, and
       the existence of disputed material facts will not
       preclude the trial court from evaluating for itself
       the merits of jurisdictional claims. Moreover, the
       plaintiff will have the burden of proof that
       jurisdiction does in fact exist.

case, the District Court treated the motion as a facial
attack, but construed Petruska’s references to matters outside the
pleadings as an informal request to amend her complaint.

                                12
the success of a plaintiff’s claims, but it does not affect the
court’s authority to consider them. We therefore review
Petruska’s complaint to determine whether she has stated a
claim upon which relief can be granted pursuant to Federal Rule
of Civil Procedure 12(b)(6). So construing the motion to
dismiss, we have jurisdiction under 28 U.S.C. § 1291. Jordan
v. Fox Rothschild O’Brien & Frankel, Inc., 

, 1251
(3d Cir. 1994). Our review is plenary. 

Ministerial Exception to Title VII

        Title VII of the Civil Rights Act of 1964 prohibits
discrimination in employment on the basis of race, sex, national
origin, or religion and forbids retaliation based on an employee’s
opposition to practices made unlawful under the statute. 42
U.S.C. § 2000e-2; 42 U.S.C. § 2000e-3. The statute exempts
religious entities and educational organizations from its non-
discrimination mandate to the extent that an employment
decision is based on an individual’s religious preferences. See
42 U.S.C. § 2000e-1(a) (providing an exception for “religious
corporation, association, educational institution, or society with
respect to employment of individuals of a particular religion to
perform work connected with the carrying on . . . of its
activities”); see also 42 U.S.C. § 2000e-2(e) (permitting
religious educational institutions “to hire and employ employees
of a particular religion”). By its terms, however, Title VII “does
not confer upon religious organizations the right to make those
same decisions on the basis of race, sex, or national origin.”
Rayburn v. Gen’l Conf. of Seventh Day Adventists, 

, 1166 (4th Cir. 1985).

       The questions presented in this case are whether applying


                               13
Title VII to Gannon’s decision to restructure would infringe
upon its free exercise rights and whether adjudication of
Petruska’s Title VII claims would result in unconstitutional
entanglement under the Establishment Clause. Every one of our
sister circuits to consider the issue has concluded that
application of Title VII to a minister-church relationship would
violate–or would risk violating 4 –the First Amendment and,


       4
           Whereas some courts have derived the ministerial
exception from the doctrine of constitutional avoidance, see,
e.g., McClure v. Salvation Army, 

, 560-61 (5th Cir.
1972), others have determined that, under its plain language,
Title VII applies to ministerial employment decisions, but they
have nevertheless concluded that such an application is
unconstitutional, see, e.g., Rayburn, 

, 1165-67
(4th Cir. 1985). As a general rule, if there is a permissible
construction of the statute which will not result in a “significant
risk” of constitutional infringement, we are to adopt that
construction without reaching the constitutional question.
Geary v. Visitation of the Blessed Virgin Mary Parish Sch., 

, 327 (3d Cir. 1993). We conclude, as did the Fourth
Circuit, that such an approach is not possible in this case.

       Both the plain text of Title VII and its legislative history
foreclose the possibility of imposing a limiting construction
upon the statute. See 

. As the
Rayburn Court explained:

       While the language of § 702 [42 U.S.C. § 2000e-
       1] makes clear that religious institutions may base
       relevant hiring decisions upon religious
       preferences, Title VII does not confer upon
       religious organizations a license to make those
       same decisions on the basis of race, sex or

                                14
accordingly, has recognized some version of the ministerial
exception.5 To the extent that a claim involves the church’s


       national origin. The statutory exemption applies
       to one particular reason for employment
       decision–that based upon religious preference. It
       was open to Congress to exempt from Title VII
       the religious employer, not simply one basis of
       employment, and Congress plainly did not.

Title VII’s legislative history “reinforces the
plain meaning of the statutory text.” 

Although
Congress has several times revisited the scope of the exemption
for religious employers, it has never extended to such
institutions the authority to discriminate on the basis of sex. See

Accordingly, we agree with the Fourth Circuit that
Congress intended Title VII to apply to cases involving sexual
discrimination and retaliation by religious institutions. We must
therefore reach the constitutional question–i.e., whether
application of Title VII to a ministerial employment relationship
violates the First Amendment.
       5
          See, e.g., EEOC v. Roman Catholic Diocese of Raleigh,

(4th Cir. 2000); Rayburn v. Gen’l Conf. of Seventh
Day Adventists, 

(4th Cir. 1985); Combs v.
Central Texas Annual Conf. of the United Methodist Church,

(5th Cir. 1999); McClure v. Salvation Army, 

(5th Cir. 1972); Alicea-Hernandez v. Catholic Bishop
of Chicago, 

(7th Cir. 2003); Young v. Northern
Illinois Conf. of United Methodist Church, 

(7th Cir.
1994); Scharon v. St. Luke’s Episcopal Presbyterian Hosp., 

(8th Cir. 1991); Elvig v. Calvin Presbyterian Church,

(9th Cir. 2004); Bollard v. Soc’y of Jesus, 

(9th Cir. 1999); Gellington v. Chistian Methodist
Episcopal Church, 

(11th Cir. 2000); EEOC v.

                                15
selection of clergy–in other words, its choice as to who will
perform particular spiritual functions 6 –most of these circuits


Catholic Univ. of Amer., 

(D.C. Cir. 1996); see also
Starkman v. Evans, 

(5th Cir. 1999) (applying
ministerial exception to Americans with Disabilities Act claim);
Werft v. Desert Southwest Annual Conf. of the United Methodist
Church, 

(9th Cir. 2004) (same).

       The First Circuit also addressed the application of the
First Amendment to a minister’s claims in Natal v. Christian
Missionary Alliance, 

(1st Cir. 1989). Although
the case involved state law claims rather than any federal
employment discrimination law, the Court made clear that
inquiry into allegations related to a minister’s employment
would be barred by the First Amendment. Specifically, it
explained:

       Because of the difficulties inherent in separating
       the message from the messenger–a religious
       organization’s fate is inextricably bound up with
       those whom it entrusts with the responsibilities of
       preaching its word and ministering to its
       adherents–Natal’s case necessarily falls within the
       scope of the Court’s monition. By its nature, the
       inquiry which Natal would have us undertake into
       the circumstances of his discharge plunges an
       inquisitor into a maelstrom of Church policy,
       administration, and governance. It is an inquiry
       barred by the Free Exercise Clause.

       6
         In evaluating whether a particular employee is subject
to the ministerial exception, other circuits have concluded that

                               16
have held that the exception bars any inquiry into a religious
organization’s underlying motivation for the contested
employment decision.7


the focus should be on the “function of the position.” 

. As a general rule, an employee will be
considered a minister if her primary duties include “teaching,
spreading the faith, church governance, supervision of a
religious order, or supervision of participation in religious ritual
and worship.” 

see, e.g., 

(applying ministerial exception to Hispanic
Communications Director who functioned as a “press secretary”
for the church); 

(holding that
Choir Director at Methodist church was minister for purposes of
First Amendment analysis); Catholic 

(applying exception to professor of canon law at Catholic
University). Although we do not view this list as exclusive, we
agree that a focus on the function of an employee’s position is
the proper one.
       7
          See 

(“[T]he free exercise
clause of the First Amendment protects the act of a decision
rather than a motivation behind it. In these sensitive areas, the
state may no more require a minimum basis in doctrinal
reasoning than it may supervise doctrinal content.”); 

(“We cannot conceive how the federal judiciary
could determine whether an employment decision concerning a
minister was based on legitimate grounds without inserting
ourselves into a realm where the Constitution forbids us to
tread.”); 

(quoting 

); 

(“Personnel decisions by
church-affiliated institutions affecting clergy are per se religious
matters and cannot be reviewed by civil courts for to review
such decisions would require the courts to determine the
meaning of religious doctrine and canonical law and to impose

                                17
        Although we have not previously confronted a factually
appropriate case in which to determine whether the ministerial
exception is constitutionally warranted, we have acknowledged
and cited with approval its application by other courts of
appeals. See Little v. Wuerl, 

, 947 (3d Cir. 1991)
(citing McClure v. Salvation Army, 

(5th Cir. 1972);
Rayburn, 

) (“Relying on this basic principle,
courts have consistently found that Title VII does not apply to
the relationship between ministers and the religious
organizations that employ them, even where the discrimination
is alleged on the basis of race or sex.”); Geary v. Visitation of


a secular court’s view of whether in the context of the particular
case religious doctrine and canonical law support the decision
the church authorities have made. This is precisely the kind of
judicial second-guessing of decision-making by religious
organizations that the Free Exercise Clause forbids.”) (citations
omitted); 

(indicating that a “Jesuit
order’s choice of representative” is ordinarily “a decision to
which we would simply defer without further inquiry”); 

(finding that court need not determine whether
reasons for employment decision were “independently
ecclesiastical in nature” to apply ministerial exception).

        The Eleventh Circuit has recognized the ministerial
exception, see Gellington, 

, but has not directly
addressed whether the exception applies without regard to
motive. We note, however, that the Gellington Court seemed to
tacitly approve of a conclusion by the Fifth Circuit that “the
constitutional protection of religious freedom afforded to
churches in employment actions involving clergy exists even
when such actions are not based on issues of church doctrine or
ecclesiastical law.” 

(citing 

).

                               18
the Blessed Virgin Mary, 

, 329 (3d Cir. 1993) (citing

) (“Indeed, when the employee who
challenges an employment decision is a member of the clergy,
some courts have refused to allow even this limited inquiry.”).
Because we conclude that a federal court’s resolution of a
minister’s Title VII discrimination or retaliation claim would
infringe upon First Amendment protections, we now join those
courts in adopting the exception.8


       8
          Although our sister circuits seem to agree that the
ministerial exception is grounded in the First Amendment, their
rationales for adopting the exception–as opposed to undertaking
some other remedial action–is often less clear. As concerns
remedy, the Supreme Court’s recent decision in Ayotte v.
Planned Parenthood of Northern New England, 

(2006), indicates that a narrow exception to prevent the
unconstitutional enforcement of Title VII is the proper remedy.

        In Ayotte, the Supreme Court considered the appropriate
judicial response where the enforcement of a statute would
render an unconstitutional result. It held that “invalidating [a]
statute entirely is not always necessary or justified” where courts
are “able to render narrower declaratory and injunctive relief.”

The Court explained:

       Generally speaking, when confronting a
       constitutional flaw in a statute, we try to limit the
       solution to the problem. We prefer, for example
       to enjoin only the unconstitutional applications of
       a statute while leaving the other applications in
       force, see United States v. Raines, 

,
       20-22 (1960), or to sever its problematic portions
       while leaving the remainder in tact, United States
       v. Booker, 

, 227-29 (2005).

                                19


        The Ayotte Court set forth several guiding principles to
“inform our approach to remedies.” 

that the
courts should not engage in “quintessentially legislative work,”
and accordingly, cautioned that we should not endeavor to draw
lines where doing so would be “inherently complex.” 

The Court also instructed us to consider the intent of the
legislature: In other words, we must ask whether the legislature
would “have preferred what is left of its statute or no statute at
all[.]” 

selecting a remedy, we must “try not to
nullify more of a legislature’s work than is necessary. . . .” 

         In this case, we conclude that application of the
ministerial exception is not “inherently complex”: It requires
federal courts to determine only whether the resolution of the
plaintiff’s claim would limit a church’s right to choose who will
perform particular spiritual functions. Further, we agree with
the implied findings of our sister circuits that Congress would
prefer a tailored exception to Title VII than a complete
invalidation of the statute. Finally, our remedy is limited: It
does not apply to all employment decisions by religious
institutions, nor does it apply to all claims by ministers. It
applies only to claims involving a religious institution’s choice
as to who will perform spiritual functions. We also note that
this is the “finely drawn” remedy requested by Gannon. See 

(noting that the parties recognized the possibility of a
“modest remedy”).        Accordingly, we conclude that the
ministerial exception is the proper response to the constitutional
defect in Title VII.


                               20
       A.      The Free Exercise Clause of the First
               Amendment

       The First Amendment of the United States Constitution
provides that “Congress shall make no law respecting an
establishment of religion or prohibiting the free exercise
thereof.” U.S. Const. amend. I. The Religion Clauses extend to
both legislative and judicial action, see Kreshik v. Saint Nicholas
Cathedral of the Russian Orthodox Church of North Amer., 

, 191 (1960), and apply equally to state and federal
laws, see Elk Grove Unified Sch. Dist. v. Newdow, 

,
8 (2004) (citing Cantwell v. Connecticut, 

, 303
(1940)).

       The Free Exercise Clause protects not only the
individual’s “right to believe and profess whatever religious
doctrine one desires,” Employment Division, Dep’t of Human
Resources of Oregon v. Smith, 

, 877 (1990), but
also a religious institution’s right to decide matters of faith,
doctrine, and church governance. Kedroff v. St. Nicholas
Cathedral, 

, 116 (1952); see also Serbian Orthodox
Diocese v. Milivojevich, 

, 713 (1976) (“[C]ivil
courts are bound to accept the decisions of the highest
judicatories of a religious organization of hierarchical policy on
matters of discipline, faith, internal organization, or
ecclesiastical rule, custom, or law.”) (emphasis added). In
ministerial exception cases, those rights are interrelated.

      First, like an individual, a church in its collective capacity
must be free to express religious beliefs, profess matters of faith,
and communicate its religious message. Unlike an individual
who can speak on her own behalf, however, the church as an


                                21
institution must retain the corollary right to select its voice. A
minister is not merely an employee of the church; she is the
embodiment of its message. A minister serves as the church’s
public representative, its ambassador, and its voice to the
faithful. Accordingly, the process of selecting a minister is per
se a religious exercise. As the Fifth Circuit explained: “The
relationship between an organized church and its ministers is its
lifeblood. The minister is the chief instrument by which the
church seeks to fulfill its purpose.” 

-
59. “Matters touching this relationship must necessarily be
recognized as of prime ecclesiastical concern.” 

Consequently, any restriction on the church’s right to choose
who will carry its spiritual message necessarily infringes upon
its free exercise right to profess its beliefs. This right is squarely
at issue in Petruska’s First Amended Complaint.

       The second right protected by the Free Exercise
Clause–the church’s right to decide matters of governance and
internal organization–is also implicated by Gannon’s decision to
restructure. The Vice President for Mission and Ministry and
the University Chaplain at Gannon both serve spiritual
functions–in other words, the primary duties of those employees
include “teaching, spreading the faith, church governance,
supervision of a religious order, or supervision of participation




       9
            In addition to their role within the religious
organization, ministers also have a direct relationship with a
church’s members: Ministers marry their children and bury their
parents; they act as their spiritual counselors and serve as their
moral advisors. To these members, the selection of a minister
is undoubtedly a question of religious concern.

                                 22
in religious ritual and worship.” 10 See 

. Accordingly, Gannon’s decisions regarding who to install
in those positions and the manner in which their duties would be
divided were decisions about who would perform those
constitutionally protected spiritual functions. Those choices are
protected from governmental interference by the Free Exercise
Clause.

        The ministerial exception, as we conceive of it, operates
to bar any claim, the resolution of which would limit a religious


       10
          Petruska argues that she was not a “chaplain” as that
term is understood in the Roman Catholic Church, nor did she
have any written job requirements which specifically defined her
position at the University. Nevertheless, Petruska’s own
complaint establishes that her primary duties involved
ministerial functions. Among other things, Petruska alleges that
she served as co-chair for the Catholic Identity Task Force, held
prayer services, and was traditionally involved in planning
liturgies. Moreover, as the District Court correctly noted, her
own “performance objectives” included “develop[ing] strategies
to increase participation in sacramental life of [the] Gannon
community.” It is clear from the face of Petruska’s complaint
that the functions she performed as University Chaplain were
ministerial in nature.

       With respect to the Vice President of Mission and
Ministry position, Petruska alleges that Rouch was installed in
that role and served in a supervisory capacity over the
Chaplain’s Division. To the extent that the Vice President of
Mission and Ministry supervises spiritual functionaries, at least
some of the functions he performs are, by definition, spiritual
ones.


                               23
institution’s right to select who will perform particular spiritual
functions. Accordingly, in this case, the relevant question with
respect to each of Petruska’s claims is whether application of the
state or federal law will limit Gannon’s right to choose who
performs particular spiritual functions on its behalf. Petruska
asserts six claims in her First Amended Complaint: two
violations of Title VII–discrimination and retaliation (Counts I
and II, respectively); fraudulent misrepresentation (Count III);
civil conspiracy (Count IV); breach of contract (Count V); and
negligent supervision and retention (Count VI). We conclude
that resolution of Counts I, II, IV, and VI would impose
unconstitutional limits on Gannon’s First Amendment right to
the free exercise of religion. Consequently, we hold that they
are barred by the ministerial exception.

              1.      Petruska’s Title VII Claims

       Petruska alleges that Gannon demoted and constructively
discharged her from her position as University Chaplain based
on her gender and retaliated against her on the basis of her
opposition to sexual harassment at the University. Her
discrimination and retaliation claims are premised upon
Gannon’s decision to restructure, a decision which Petruska
argues was merely pretext for gender discrimination. It is clear
from the face of Petruska’s complaint, however, that Gannon’s
choice to restructure constituted a decision about who would
perform spiritual functions and about how those functions would
be divided.       Accordingly, application of Title VII’s
discrimination and retaliation provisions to Gannon’s decision




                                24
to restructure would violate the Free Exercise Clause.11 For that
reason, Petruska’s Title VII claims (Counts I and II) should be
dismissed.

       Petruska argues that Gannon waived its right to raise the
ministerial exception as a defense by (1) failing to raise it before



       11
           We acknowledge that it may not always be clear
whether a minister’s Title VII claim involves a church’s
decision regarding who will perform spiritual functions. For
example, in Elvig v. Calvin Presbyterian Church, 

,
955 (9th Cir. 2004), the Ninth Circuit considered a Presbyterian
minister’s claims that she was sexually harassed and subject to
retaliation by her supervising pastor. The Elvig Court
recognized that a church’s decisions in selecting its clergy are
protected by the First Amendment and held that to the extent
that a plaintiff’s claims implicated ministerial employment
decisions, the claims were foreclosed. Nevertheless, over a
vigorous dissent, the Court concluded that, in that case, the
sexual harassment, hostile work environment, and retaliation
claims (verbal abuse and intimidation) did not implicate
protected employment decisions. It therefore reversed the
district court’s order dismissing those claims.

       In Petruska’s case, the retaliatory conduct at issue is the
employment decision itself, which Elvig recognizes as a
decision protected by the Free Exercise Clause. Because
Petruska does not raise a sexual harassment or hostile work
environment claim, and because the retaliatory conduct she
alleges constitutes a protected choice, we need not decide today
whether the types of claims at issue in Elvig would fall within
the ministerial exception to Title VII.



                                25
the EEOC; (2) accepting state and federal funds with conditions
limiting discrimination; and (3) repeatedly and publicly
representing itself as an equal opportunity employer. We find
these arguments unpersuasive.

        First, as the District Court correctly noted, although a
plaintiff has an obligation to exhaust her administrative
remedies as a prerequisite to suit, we are aware of no authority
that requires a defendant to proffer every possible defense or
legal argument before the EEOC, much less to raise all
constitutional challenges. Cf., e.g., McGinty v. New York, 

, 93-94 (2d Cir. 2001) (concluding that failure to raise
Eleventh Amendment immunity as a defense did not result in
waiver in subsequent federal court action under the ADEA);
Marie v. Allied Home Mortgage Corp., 

, 15 (1st Cir.
2005) (holding that appellee did not waive right to raise
arbitration defense in district court by failing to raise it before
EEOC); Brennan v. King, 

, 263 (1st Cir. 1998)
(same). Moreover, as a general rule, an administrative agency
is not competent to determine constitutional issues. See, e.g,
Weinberger v. Salfi, 

, 765 (1975) (“Exhaustion is
generally required as a matter of preventing premature
interference with agency process, so that the agency may
function efficiently and so that it may have the opportunity to
correct its own errors, to afford the parties and the courts the
benefit of its experience and expertise, and to compile a record
which is adequate for judicial review . . . . Plainly these
purposes have been served once the Secretary has satisfied
himself that the only issue is the constitutionality, a matter
which is beyond his jurisdiction to determine . . . .”); but cf.
Bethlehem Steel Corp. v. Occupational Safety and Health
Review Commission, 

, 876 (3d Cir. 1976)


                                26
(concluding that in context of OSHA enforcement cases, “there
are compelling reasons for insisting that fourth amendment
claims for suppression of evidence . . . be tendered first to the
Commission.”).

        In this case, we can see no reason that the general rule
regarding agencies’ lack of competence to resolve constitutional
claims should not apply. The EEOC has no special expertise to
resolve First Amendment claims, nor is Gannon’s assertion of
the ministerial exception related to the EEOC’s jurisdiction or
administrative procedures. We therefore cannot conclude that
Gannon’s failure to raise the ministerial exception before the
EEOC resulted in a waiver of its right to raise it in federal
court.12

        Second, Gannon did not “waive” its First Amendment
rights by representing itself as an “equal opportunity employer”
or by accepting federal and state funds. A waiver is “an
intentional relinquishment or abandonment of a known right or


       12
           Petruska cites no persuasive authority to support her
contention that Gannon is precluded from raising the ministerial
exception for the first time in federal district court. The only
case to which she points in support of this argument is the Ninth
Circuit’s decision in Marshall v. Able Contractors, Inc., 

, 1057 (9th Cir. 1978). That case is inapposite. At
issue in Marshall was a district court’s order compelling the
plaintiff to submit to OSHA inspections. The Ninth Circuit held
that an agency should make a determination as to its own
jurisdiction before a federal court considers it. In this respect,
Marshall stands only for the proposition that an agency is
entitled to consider its own jurisdiction and procedural
requirements in the first instance.

                               27
privilege.” Johnson v. Zerbst, 

, 464 (1938).
“‘[C]ourts indulge every reasonable presumption against waiver’
of fundamental constitutional rights.” 

Here neither Gannon’s invocation of “equal employer” language
nor its acceptance of funds constitutes a waiver of its First
Amendment rights. By invoking the “equal opportunity”
language, Gannon acknowledged only that it would comply with
Title VII to the extent the statute applies to its employment
decisions. It does not apply in this context. We thus agree that
Gannon did not waive its right to raise the ministerial exception
and we conclude that the District Court properly applied the
exception to Petruska’s Title VII claims.

              2.      Petruska’s State Tort Law Claims

       Petruska’s First Amended Complaint also contains three
state tort claims: civil conspiracy (Count IV), negligent
supervision and retention (Count VI), and fraudulent
misrepresentation (Count III). The civil conspiracy13 and
negligent supervision 14 claims turn on Petruska’s ability to prove


       13
          Civil conspiracy requires proof that two or more
persons combined to do an unlawful act or to do an otherwise
lawful act by unlawful means. See, e.g., Thompson Coal Co. v.
Pike Coal, 

, 211 (Pa. 1979). In this case, the alleged
underlying unlawful act is the violation of Title VII.
       14
        Under Pennsylvania law, an employer may be liable for
negligent supervision “where the employer fails to exercise
ordinary care to prevent an intentional harm to a third party
which (1) is committed on the employer’s premises by an
employee acting outside the scope of his employment and (2) is
reasonably foreseeable.” Mullen v. Topper’s Salon & Health

                                28
that Gannon’s restructuring constituted an unlawful or tortious
act. Because the First Amendment protects Gannon’s right to
restructure–regardless of its reason for doing so–we cannot
consider whether the act was unlawful or tortious and, therefore,
these claims must be dismissed.

        By contrast, Petruska’s fraudulent misrepresentation
claim requires no such conclusion. To establish a claim for
fraudulent misrepresentation, a plaintiff must prove: “(1) a
misrepresentation, (2) a fraudulent utterance thereof, (3) an
intention by the maker that the recipient will thereby be induced
to act, (4) justifiable reliance by the recipient upon the
misrepresentation and (5) damage to the recipient as the
proximate result.” Martin v. Lancaster Battery Co., 

,
19, 

, 448 (Pa. 1992). Unlike Petruska’s civil
conspiracy or negligent supervision claims, which require proof
of the unlawful act or intentional harm, the resolution of
Petruska’s fraudulent misrepresentation claim does not turn on
the lawfulness of the decision to restructure, but rather upon the
truth or falsity of the assurances that she would be evaluated on
her merits when she was initially appointed as University
Chaplain in July of 1999.

       Because the state’s prohibition against fraud does not



Spa, Inc., 

, 556 (E.D. Pa. 2000) (citations
omitted). Although Petruska’s First Amended Complaint is
replete with references to the current priest sexual abuse
scandals and allegations that Bishop Trautman covered up
harassment and abuse directed towards other individuals, the
only intentional harm to which she claims she was personally
subjected is the underlying discrimination and retaliation.

                               29
infringe upon Gannon’s freedom to select its ministers,
resolution of Petruska’s fraudulent misrepresentation claim
would not violate the Free Exercise Clause. Nevertheless, we
conclude that Petruska has failed to plead fraud with
particularity as required by Federal Rule of Civil Procedure 9(b),
and accordingly, affirm the District Court’s dismissal of that
claim.15 See Chistidis v. First Pennsylvania Mortg. Trust, 

, 99 (3d Cir. 1983) (indicating that the pleading
requirements of Rule 9(b) “appl[y] not only to fraud actions
under federal statutes, but to fraud claims based on state law.”).

               3.     Petruska’s State Law Contract Claim

        In Count V of her First Amended Complaint, Petruska
alleges that pursuant to her contract with Gannon, she was
entitled to serve on the President’s Staff and lead the Chaplain’s
Division. She claims that by changing her responsibilities,
Gannon breached its contract.

       On its face, application of state contract law does not
involve government-imposed limits on Gannon’s right to select
its ministers: Unlike the duties under Title VII and state tort law,
contractual obligations are entirely voluntary. As the court
noted in Minker v. Baltimore Annual Conference of United

       15
          In affirming the dismissal of Petruska’s fraudulent
misrepresentation claim on this basis, we anticipate that the
District Court will afford her the opportunity to file an amended
complaint. Borelli v. City of Reading, 

(3d Cir.
1976). Should she file an amended complaint which complies
with the particularity requirement of Rule 9(b), the District
Court is instructed to evaluate her claim consistent with the
analysis set forth in section III.B. of this Opinion.

                                30
Methodist Church, 

, 1360 (D.C. Cir. 1990), “[a]
church is always free to burden its activities voluntarily through
contract, and such contracts are fully enforceable in civil court.”
See also, e.g., 

(“Like any other
organization, [churches] may be held liable . . . upon their valid
contracts.”). Enforcement of a promise, willingly made and
supported by consideration, in no way constitutes a state-
imposed limit upon a church’s free exercise rights.
Accordingly, application of state law to Petruska’s contract
claim would not violate the Free Exercise Clause.

       B.     The Establishment Clause

        Above and beyond its Free Exercise argument, Gannon
contends that resolution of Petruska’s claims would violate the
Establishment Clause. Because we conclude that Petruska failed
to plead fraud with specificity and that her Title VII, civil
conspiracy, and negligent retention and supervision claims are
barred by the Free Exercise Clause, we need not address those
claims further. Petruska’s claim for breach of contract,
however, remains subject to review under the Establishment
Clause. Based upon our analysis in Geary v. Visitation of the
Blessed Virgin Mary Parish School, 

(3d Cir. 1993),
we cannot conclude that review of this claim would, at the
outset, unconstitutionally entangle the court in religion, and we
therefore remand it to the District Court.

       In Lemon v. Kurtzman, 

, 612-13 (1971), the
Supreme Court set forth a three-prong test to determine the
validity of a statute under the Establishment Clause: “First, the
statute must have a secular legislative purpose; second, its
principal or primary effect must be one that neither advances nor


                                31
inhibits religion; . . . and finally, the statute must not foster ‘an
excessive government entanglement with religion.’” Only the
entanglement prong is at issue in evaluating Petruska’s contract
claim.

        Entanglement may be substantive–where the government
is placed in the position of deciding between competing
religious views–or procedural–where the state and church are
pitted against one another in a protracted legal battle. See, e.g.,
Catholic 

. Therefore, courts typically
consider the character of the claim, the nature of the remedy,
and the presence or absence of a “direct conflict between the .
. . secular prohibition and the proffered religious doctrine.”

.

        In Geary, the question presented was whether judicial
review of a Catholic school teacher’s Age Discrimination in
Employment Act (ADEA) claims would excessively entangle
the courts where the school’s stated reason for the adverse
employment decision was based on the plaintiff’s marriage to a
divorced man in violation of church doctrine. 

that resolution of Geary’s ADEA claims would not offend the
Establishment Clause because the inquiry was limited to
whether the school discriminated against Geary on the basis of
her age and canceled her insurance in retaliation for her suit. 

not challenge the validity of the religious doctrine;
she merely claimed that the religious doctrine did not motivate
the suit. 

We therefore held that “when the pretext
inquiry neither traverses questions of the validity of religious
beliefs nor forces a court to choose between parties’ competing
religious visions, that inquiry does not present a significant risk
of entanglement.” 

                                 32
       The Court of Appeals for the District of Columbia Circuit
took a similar approach to a minister’s breach of contract claim
in 

. Minker involved a Methodist
minister’s claim that he was orally promised a more suitable
pastorship, but was denied such a position based on his age. 

The Minker court affirmed the dismissal of the
minister’s ADEA and state law discrimination claim as well as
a contract claim based on the Methodist Church’s Book of
Discipline, but reversed the dismissal with respect to the oral
contract claim. 

The court acknowledged that
inquiry into the church’s reasons for failing to meet its
contractual obligation could constitute excessive entanglement
under the Establishment Clause, but nevertheless concluded that
Minker’s claim could “be adduced by a fairly direct inquiry”
into whether there was an offer, acceptance, consideration, and
breach. 

The court further noted that if resolution of
the contract claim required inquiry into the church’s
ecclesiastical policy, the district court could grant summary
judgment on entanglement grounds.

       Although the ministerial exception does not apply to lay
employees, we are presented with no principled reason to
distinguish between clergymen and laity for purposes of
determining whether resolution of a contract dispute will unduly
entangle us under the Establishment Clause. Therefore, the
question is whether Petruska’s breach of contract claim can be
decided without wading into doctrinal waters. Much like the
claims in Geary and the oral contract claim in Minker,
Petruska’s breach of contract claim “do[es] not inevitably or
even necessarily lead to government inquiry into [Gannon’s]
religious mission or doctrines.” 

.
Resolution of this claim does not turn on an ecclesiastical


                               33
inquiry–or, at least not at the outset. If Gannon’s response to
Petruska’s allegations raise issues which would result in
excessive entanglement, the claims may be dismissed on that
basis on summary judgment. Such a conclusion, however, is not
inevitably drawn from the face of Petruska’s complaint. We
will therefore remand this claim for further consideration by the
District Court.

IV.    Conclusion

       The First Amendment protects a church’s right to decide
matters of faith and to declare its doctrine free from state
interference. A church’s ability to select who will perform
particular spiritual functions is a necessary corollary to this
right. The function of Petruska’s position as University
Chaplain was ministerial in nature, and therefore, her Title VII,
civil conspiracy, and negligent retention and supervision
claims–each of which directly turns on the propriety of
Gannon’s personnel decisions–must be dismissed. Likewise,
Petruska’s fraud claim was not plead with sufficient particularity
to withstand a motion to dismiss. Accordingly, we will affirm
the District Court’s order with respect to these claims. For the
reasons set forth above, however, we will be remand Petruska’s
contract claim for further consideration by the District Court.




                             34