SHEDD, Circuit Judge:
Lori Kennedy filed a complaint under Title VII against her former employer, Villa St. Catherine, Inc. (St. Catherine),
St. Catherine is a tax-exempt religious organization which operates a nursing-care facility in Emmitsburg, Maryland.
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
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,
On appeal, St. Catherine argues that the plain language of § 2000e-1(a), the religious organization exemption, makes clear that Title VII does not apply to claims for religious harassment and retaliation against religious organizations.
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-1(a) provides that:
42 U.S.C. § 2000e-1(a).
Section 2000e-1(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 Importantly, as originally enacted, the exemption applied only to personnel decisions related to carrying out an organization's religious activities.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-1(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-1(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-1(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
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-1(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)(1) (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)(1), 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-1(a) includes both § 2000e-2(a)(1), 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)(1)). 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"
This conclusion conforms with the purpose behind the exemption as well:
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.
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 "[w]ithout 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,
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, "[r]epetitive 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).
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
KING, Circuit Judge, dissenting:
I must respectfully dissent from the majority's decision because it unnecessarily settles a novel and complex statutory issue, thereby contravening the fundamental principle of judicial restraint. In one fell swoop, the majority interprets the 42 U.S.C. § 2000e-1(a) exemption to shield religious organizations from every Title VII claim alleging either religious harassment or retaliation for opposing such harassment. Rather than solve the difficult problem of whether the exemption stretches that far, I would decertify and dismiss this 28 U.S.C. § 1292(b) interlocutory appeal, leaving the district court to answer the much simpler questions of whether Kennedy has adequately pleaded or can forecast sufficient evidence to prove a Title VII violation. If not, St. Catherine would be entitled to dismissal or summary judgment, and the issue of the exemption's reach would be moot.
It is generally understood that § 1292(b) of Title 28 "should be used sparingly." Myles v. Laffitte, 881 F.2d 125, 127 (4th Cir.1989); see also Coopers & Lybrand v. Livesay, 437 U.S. 463, 475, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978) (recognizing that use of § 1292(b) is reserved for "exceptional circumstances [that] justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment" (internal quotation marks omitted)). That jurisdictional provision authorizes a district court, in rendering an otherwise unappealable order in a civil action, to state in writing that (1) "such order involves a controlling question of law as to which there is substantial ground for difference of opinion" and (2) "an immediate appeal from the order may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b). If application is made to the appropriate court of appeals within ten days after the certification, the appellate court "may thereupon, in its discretion, permit an appeal to be taken from such order." Id. Of course, the court of appeals may later dismiss the § 1292(b) appeal if it becomes apparent that review was improvidently granted. See, e.g., Wilson v. Ferrell, 738 F.2d 637, 638 (4th Cir.1984) ("Upon further consideration of the facts, issues, and course of proceedings to date in this action, we are of opinion that permission to appeal under 28 U.S.C. § 1292(b) was improvidently granted.").
Kennedy alleged three claims against St. Catherine under Title VII—religious harassment, retaliatory discharge for opposing such harassment, and discriminatory discharge premised on her religion. St. Catherine filed an answer to the complaint and, before the parties had completed any discovery, moved for summary judgment asserting that the 42 U.S.C. § 2000e-1(a) exemption for religious organizations precludes all of Kennedy's claims regardless of their merits. In response, Kennedy conceded that her discriminatory discharge claim was barred by the exemption but opposed the motion as to her harassment and retaliation claims. The district court denied summary judgment as to those two claims, concluding that the exemption did not apply. See Kennedy v. Villa St. Catherine's, Inc., 709 F.Supp.2d 404 (D.Md.2010). Nevertheless, the court granted St. Catherine's request for certification of a § 1292(b) interlocutory appeal. See Kennedy v. Villa St. Catherine's, Inc., No. 1:09-cv-03021 (D.Md. June 16, 2010) (the "Certification Order").
In concluding that a § 1292(b) appeal was appropriate, the district court identified the controlling question of law to be whether § 2000e-1(a) "exempts a religious institution from liability when the religious discrimination it purportedly commits takes the form of religious harassment." Certification Order 2. The court also concluded that "substantial grounds for difference may be found by virtue of the strong public policy purpose served by" § 2000e-1(a). Id. at 4. And, over Kennedy's objection that "the case might settle or summary judgment might be entered on other grounds," the court surmised that immediate "appeal may lead to a possible terminus for the case." Id. at 4-5.
Within ten days of the Certification Order's entry, St. Catherine filed in this Court a petition for permission to appeal,
Notwithstanding the possible applicability of the 42 U.S.C. § 2000e-1(a) exemption, it is far from clear that Kennedy's religious harassment and retaliation claims can survive a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss or a Rule 56 motion for summary judgment. As of yet, the parties have not conducted discovery, but the viability of Kennedy's claims can be gauged from the operative First Amended Complaint of December 9, 2009 (the "Complaint").
According to the Complaint, Kennedy was employed as a geriatric nursing assistant at St. Catherine's Nursing Center in Emmitsburg, Maryland, from 1994 through May 2007. See Complaint ¶¶ 3, 6-7. During that time, she wore "modest garb that include[d] long dresses/skirts and a cover for her hair" in reverence to her personal religious beliefs as a member of the Church of the Brethren. Id. at ¶¶ 8-9. Kennedy alleges that the Center's Director of Nursing Services (while acting in that capacity and in a prior role as Assistant Director of Nursing Services) "subjected [Kennedy] to a course of conduct which included unwelcome, inappropriate and offensive comments regarding [her] religious garb." Id. at ¶ 11. Notably, the Complaint specifies only that the alleged harassment "included comments that [Kennedy's] garb was inappropriate in a Catholic institution," that it "made the residents' family members uncomfortable" and "made [Kennedy] stand out," and that she "should remove her hair covering" and "should conform to a more traditional mode of dress." Id. at ¶ 12. Those comments were uttered "in the presence of [the] Center's Administrator/CEO[,] who did nothing to halt [them]." Id. at ¶ 13. Meanwhile, Kennedy protested "that the comments about [her] garb were unwelcome and offensive to her[,] and that her garb was a function of her religion and did not interfere with her professional responsibilities." Id. at ¶ 17. Ultimately, St. Catherine "terminated [Kennedy's] employment on May 17, 2007." Id. at ¶ 18.
For success on her religious harassment claim, Kennedy must plead and be able to prove a hostile work environment, i.e., "that the harassment was (1) unwelcome, (2) because of religion, (3) sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere, and (4) imputable to [St. Catherine]." EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 313 (4th Cir.2008). The "severe or pervasive" element may be particularly troublesome for Kennedy, because it requires a showing that the environment was both subjectively and objectively hostile or abusive. Id. at 315. To satisfy that objective component, "the harassing `conduct must be [so] extreme [as] to amount to a change in the terms and conditions of employment.'" Id. (alterations in original) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)). Proof of "an employment atmosphere that is `permeated with discriminatory intimidation, ridicule, and insult'" will satisfy Kennedy's burden, id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17,
It is highly questionable whether the Complaint sufficiently alleges the "severe or pervasive" element of Kennedy's religious harassment claim. Although Federal Rule of Civil Procedure 8 "does not require `detailed factual allegations,'" it does demand that a complaint "contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged— but it has not `show[n]'—`that the pleader is entitled to relief.'" Id. at 1950 (alteration in original) (quoting Fed.R.Civ.P. 8(a)(2)). Here, the Complaint's allegations raise the possibility that the comments about Kennedy's religious garb created an atmosphere so abusive that they altered the conditions of her employment, but additional facts (as opposed to conclusory statements) would likely be necessary to show, objectively, that those comments were sufficiently severe or pervasive. Cf. Bonds v. Leavitt, 629 F.3d 369, 385 (4th Cir.2011) (affirming dismissal of race and gender harassment claim because the plaintiffs allegations "fall well short of alleging an abusive working environment").
It is also unclear whether the alleged facts are adequate to sustain Kennedy's claim of retaliation for opposing religious harassment. To prevail on her retaliation claim, Kennedy must show that (1) she "engaged in a protected activity," (2) St. Catherine "acted adversely against [her]," and (3) her "protected activity was causally connected to [St. Catherine's] adverse action." Beall v. Abbott Labs., 130 F.3d 614, 619 (4th Cir.1997). Kennedy asserts that she undertook a "protected activity" when she opposed the harassing comments made about her religious garb. See 42 U.S.C. § 2000e-3(a) (prohibiting discrimination against an employee "because he has opposed any practice made an unlawful employment practice by this title"). As discussed above, Kennedy's religious harassment claim is of dubious merit. Kennedy might seek solace in the accepted proposition that § 2000e-3(a) "protects activity in opposition not only to employment actions actually unlawful under Title VII but also employment actions an employee reasonably believes to be unlawful." EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 406 (4th Cir.2005). Importantly, however, "[b]ecause the analysis for determining whether an employee reasonably believes a practice is unlawful is an objective one, the issue may be resolved as a matter of law." Jordan v. Alt. Res. Corp., 458 F.3d 332, 339 (4th Cir.2006). And it is not certain here that the Complaint provides enough facts to credit the reasonableness of Kennedy's belief that the comments she protested rose to the level of unlawful harassment. Further questions remain for the summary judgment stage as to whether Kennedy's discharge was "causally connected" to her protests against the comments; for example, St. Catherine may have possessed some other, non-retaliatory reason to terminate Kennedy's employment.
Rather than wait for the district court to determine whether Kennedy has stated and can prove religious harassment and retaliation claims, the majority deems all such Title VII claims against religious organizations to be barred by the § 2000e-1(a) exemption. There is no principled reason to decide the exemption issue today, however, because "the statutory exemptions from religious discrimination claims under Title VII cannot be waived by either party." See Hall v. Baptist Mem'l Health Care Corp., 215 F.3d 618, 625 (6th Cir.2000). Furthermore, "the cardinal principal of judicial restraint"— "that if it is not necessary to decide more, it is necessary not to decide more"—counsels against reaching the exemption issue before Kennedy's claims are measured against the Rules 12(b)(6) and 56 standards. See Goodman v. Praxair, Inc., 494 F.3d 458, 476 (4th Cir.2007) (en banc) (Williams, C.J., concurring in part) (internal quotation marks omitted).
In recognition of the principle that "[m]oot questions require no answer," Mo., Kan. & Tex. Ry. Co. v. Ferris, 179 U.S. 602, 606, 21 S.Ct. 231, 45 L.Ed. 337 (1900), courts have judiciously declined to entertain § 1292(b) appeals where the question certified may be mooted by further proceedings in the district court. See, e.g., Sandler v. E. Airlines, Inc., 649 F.2d 19, 20 (1st Cir.1981) (dismissing § 1292(b) appeal without addressing merits of question certified on scope of Title VII because, inter alia, it was unclear whether complaint stated cause of action); United States v. Rent-A-Homes Sys. of Ill., Inc., 602 F.2d 795, 797 (7th Cir.1979) (explaining that court had previously disallowed § 1292(b) appeal of district court order precluding monetary damages because, if "plaintiff fail[ed] to prove its case below," damages issue would "never be reached" (internal quotation marks omitted)). Here, too, we will not have to address the question certified, on the scope of the § 2000e-1(a) exemption, if St. Catherine can otherwise prevail on a motion to dismiss or a motion for summary judgment.
Significantly, "[t]he potential for mootness takes on even greater weight ... when the question we may never have to address presents sophisticated and unprecedented questions." Cf. Gen. Acquisition, Inc. v. GenCorp, Inc., 23 F.3d 1022, 1030-31 (6th Cir.1994) (concluding that interlocutory appeal was not properly certified under Federal Rule of Civil Procedure 54(b) given "significant possibility" that "novel and complex questions of state law presented on appeal" would subsequently "be rendered moot"). For, "[i]n keeping with notions of judicial restraint, federal courts should not reach out to resolve complex and controversial questions unnecessarily." Id. (internal quotation marks omitted). The question presented in this § 1292(b) appeal is one of first impression in this Circuit with profound implications—one that probably need not be reached. As such, the majority issues what is effectively an advisory opinion construing a remedial statute to broadly preclude claims for relief.
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).