                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-19-2007

LeBoon v. Lancaster Jewish
Precedential or Non-Precedential: Precedential

Docket No. 05-2073




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                                     PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                       No. 05-2073


                    LINDA LEBOON,

                                      Appellant.

                             v.

     LANCASTER JEWISH COMMUNITY CENTER
                 ASSOCIATION




      On Appeal from the United States District Court
         for the Eastern District of Pennsylvania
               (D.C. Civ. No. 04-cv-00430)
          Magistrate Judge: Hon. Jacob P. Hart


              Argued on September 26, 2006


Before: RENDELL, CHAGARES and ROTH, Circuit Judges

           (Opinion Filed September 19, 2007 )


J. Michael Considine, Jr., Esquire (ARGUED)
Suite 100
12 East Barnard Street
West Chester, PA 19382

            Attorney for Appellant
Daniel J. Brennan, Esquire
Christine N. Schultz, Esquire (ARGUED)
Susanin, Widman & Brennan, P.C.
455 South Gulph Road
Suite 240, Executive Terrace
King of Prussia, PA 19406

              Attorneys for Appellee




                         OPINION




ROTH, Circuit Judge:

       In this employment discrimination case, a former
employee of the Lancaster Jewish Community Center claimed
discrimination on the basis of religion (evangelical Christianity)
and retaliation for protected EEO activity. The District Court
granted summary judgment in favor of the employer.

        We first find that we have jurisdiction to hear the appeal
although it was filed over 30 days after the docketing of the
District Court’s summary judgment opinion and order; because
the District Court did not comply with the separate-document
rule, the employee had 180 days from the date of docketing to
file her appeal. Second, we affirm the District Court because
(a) during the relevant period the Lancaster Jewish Community
Center qualified as a “religious corporation, organization, or
institution” exempted from the religious discrimination
provisions of Title VII; and (b) the employee has not produced
sufficient evidence of a causal link between her alleged EEO
activity and her termination. Finally, we hold that the District
Court did not abuse its discretion in denying the employee’s
motion to reopen discovery after she had filed a motion for
summary judgment.




                                2
I. Factual and Procedural Background

       Plaintiff-appellant Linda LeBoon, an evangelical
Christian, was employed as a bookkeeper by the Lancaster
Jewish Community Center Association (LJCC) from November,
1998, until August 30, 2002, when she was terminated.1

       The LJCC was a non-profit corporation located in
Lancaster County, Pennsylvania. Its stated mission was to
“enhance and promote Jewish life, identity, and continuity.”
During the relevant time period it was managed by a Board of
Trustees, a number of committees, and an executive director. Its
bylaws provided that the rabbis of the three area synagogues
serve ex officio as non-voting members of the Board.

       The LJCC operated a variety of programs, including a
summer camp and preschool, and published a newspaper, the
Lancaster Jewish News. It held events for various Jewish
holidays, including a Hanukkah dinner. Its funding came from
a variety of sources, including an average of 16.5% annually
from the Lancaster Jewish Federation during the time of
LeBoon’s employment. It also received aid from the United
Way for certain programs. The remaining sources of revenue
were membership dues, program fees, rents, and donations from
individuals and synagogues. Membership was open to Jews and
Gentiles alike.

       At the beginning of 2002, the LJCC hired Natalie
Featherman as the new interim Executive Director. It is
essentially undisputed that the LJCC was in serious financial
trouble when Featherman took over – just one month later, the
LJCC held a retreat to discuss money issues.2 LeBoon admits to

    1
      At the beginning of 2004, the LJCC merged with the
Lancaster Jewish Federation; the resulting entity is the Jewish
Community Alliance of Lancaster.
    2
     LeBoon attempts to argue that the LJCC was in better
financial condition than it says it was by pointing to year end
financial numbers. The record reflects, however, that the

                               3
not trusting Featherman and also stated that her relationship with
Featherman began to deteriorate in the spring of 2002 because
of a memo Featherman wrote directed at two other LJCC
employees. LeBoon further stated that Featherman had
generally poor relations with the entire LJCC staff.

       In March, 2002, a custodian named Troy Rollman was
terminated. LeBoon testified she opposed his termination
because she believed it was motivated by a disability that
resulted in a speech impediment.       On May 30, 2002,
Featherman terminated Sandy Simms, an African-American
employee at Lancaster’s Office of Aging, who performed
receptionist duties at the LJCC. Simms had failed to arrive at
work the previous day and never alerted the LJCC that she
would be absent. LeBoon claims, with the support of a co-
worker’s affidavit, that she complained to Featherman that
Simms was fired because of her race.

       As the spring of 2002 turned to summer, the LJCC’s
financial prospects did not get any warmer. According to the
LJCC, Featherman concluded that LeBoon’s position (a full-
time bookkeeper) was unnecessary and could be performed by
another co-worker. On August 30, 2002, three months after
Simms’ discharge and six months after Rollman’s, Featherman
fired LeBoon.

       LeBoon filed suit in federal court alleging religious
discrimination, retaliation, and wrongful discharge in violation
of Pennsylvania’s public policy. As relevant for our purposes,
she claimed that she was terminated because she is a Christian
and Featherman learned that LeBoon had attended a Jews for
Jesus concert a few days before her termination,              or,
alternatively, in retaliation for LeBoon’s complaints about the
terminations of Rollman and Simms.




numbers looked better than they really were because the LJCC
received an advance on the subsequent year’s funds.

                                4
        With the consent of the parties, the District Court referred
this case to the Magistrate Judge to conduct all proceedings
pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. On
December 16, 2004, the Magistrate Judge granted the LJCC’s
motion for summary judgment and denied LeBoon’s cross
motion for summary judgment. As to LeBoon’s claim of
religious discrimination, the Magistrate Judge found that it was
precluded by Title VII’s exemption of religious corporations
from the prohibition against religious discrimination. The
Magistrate Judge also dismissed LeBoon’s retaliation claim
because she failed to establish evidence from which a
reasonable jury could infer causality. Finally, the Magistrate
Judge dismissed the state law claim for lack of federal
jurisdiction.

        On December 23, LeBoon filed a motion for
reconsideration. In its response, the LJCC conceded that the
decision had been based in part on a manifest error of fact
regarding the percentage of the LJCC’s funding that came from
the Lancaster Jewish Federation Campaign. On January 14,
2005, the Magistrate Judge entered an order vacating the order
of December 16, “so that the Court may reconsider this matter.”
After reconsidering the case in light of the correct facts, the
Magistrate Judge once again determined that the LJCC was a
religious organization exempted from the religious
discrimination provisions of Title VII and reissued an order on
February 17, 2005, granting the LJCC the same relief it provided
in its December 16, 2004, order.

         Approximately a week later, LeBoon filed a second
motion for reconsideration. The motion was a verbatim copy of
the motion for reconsideration filed after the Magistrate Judge’s
December 16, 2004, ruling. The Magistrate Judge denied this
second motion for reconsideration on March 11, 2005. LeBoon
filed her notice of appeal on April 4, 2005.




                                 5
II. Discussion

       A. Jurisdiction

        The trial court had jurisdiction pursuant to Title VII of
the Civil Rights Act of 1964 and 28 U.S.C. § 1331. The LJCC
contests our jurisdiction of the appeal, however, on the grounds
that LeBoon’s notice of appeal was untimely. We have
jurisdiction to review our own jurisdiction when it is in doubt,
see Constitution Bank v. Tubbs, 68 F.3d 685, 691 (3d Cir. 1995),
and find that we have appellate jurisdiction under 28 U.S.C. §
1291.

       The LJCC argues that we lack jurisdiction of LeBoon’s
appeal because LeBoon did not file a notice of appeal within 30
days of the Magistrate Judge’s February 17, 2005, order
granting, for a second time, the LJCC’s motion for summary
judgment. See Fed. R. App. P. 4. LeBoon responds that her
appeal is timely because her second motion for reconsideration,
filed on February 25, 2005, tolled the 30-day limit to file an
appeal; since the Magistrate Judge did not rule on that second
motion until March 11, 2005, her April 4, 2005, notice of appeal
was within the 30-day deadline. Although we question whether
a litigant can toll the time for appeal by filing a second,
essentially identical motion for reconsideration of a final order,
we need not decide the issue. The reason for this is the
Magistrate Judge’s failure to comply with the separate-order
requirement of Federal Rule of Civil Procedure 58. Under
Rules 58(b) and 79(a), LeBoon had 180 (not 30) days to appeal
from the order of February 17, 2005; thus her appeal, noticed on
April 4, was timely.

         Under Federal Rule of Appellate Procedure 4(a)(1)(A),
notices of appeal must generally be filed “within 30 days after
the . . . order appealed from is entered.” However, “if Federal
Rule of Civil Procedure 58(a)(1) requires a separate document,”
the judgment is considered entered “when the judgment or order
is entered in the civil docket under Federal Rule of Civil
Procedure 79(a) and when the earlier of these events occurs: [1]
the judgment or order is set forth on a separate document, or [2]

                                6
150 days have run from entry of the judgment or order in the
civil docket under Federal Rule of Civil Procedure 79(a).” Fed.
R. App. P. 4(a)(7)(A)(ii). Thus, if a certain order is subject to
the separate-document requirement of Federal Rule of Civil
Procedure 58 and no separate document exists, an appellant has
180 days to file a notice of appeal – 150 for the judgment to be
considered “entered,” plus the usual 30 days from the entry of
judgment.

        Federal Rule of Civil Procedure 58(a)(1) requires every
judgment and amended judgment to be set forth in a separate
document unless it is “an order disposing of a motion . . . (D) for
a new trial, or to alter or amend the judgment, under Rule 59; or
(E) for relief under Rule 60.” Fed. R. Civ. P. 58(a)(1). To
summarize the convoluted procedural history again, the
Magistrate Judge initially ruled on cross-motions for summary
judgment on December 16, 2004. On December 23, LeBoon
filed a motion for reconsideration, pointing out a factual error in
the court’s opinion; in its response, the LJCC conceded that the
decision had been based in part on a manifest error of fact.
Consequently, on January 14, 2005, the Magistrate Judge
entered an order vacating the order of December 16, “so that the
Court may reconsider this matter.” On February 17, 2005, the
Magistrate Judge issued an Opinion and Order that again denied
LeBoon’s motion for summary judgment and granted the
LJCC’s.

       Although at first blush the February 17 Order could be
understood as merely ruling on LeBoon’s Rule 59 motion for
reconsideration, it is clear that in fact its primary function was
to dispose of the cross-motions for summary judgment, which
were again pending because the earlier order ruling on them had
been vacated. Thus the February 17 Order was subject to the
separate-order rule. See Fed. R. Civ. Pro. 58 advisory
committee notes (2002 amendment) (when the disposition of a
post-judgment motion results in an amended judgment, the
separate-document rule applies to the amended judgment);
Employers Ins. of Wausau v. Titan Int’l, Inc., 400 F.3d 486, 489
(7th Cir. 2005) (when a post-judgment motion is granted, and



                                7
therefore produces an amended judgment, the amended
judgment must be set forth on a separate document).3

        Since the February 17 Order was subject to the separate-
order requirement of Rule 58, we next ask whether it complied
with Rule 58. If it did not, LeBoon’s appeal is timely, because
she filed a notice of appeal within 180 days from the docketing
of the inadequate order.

         No magic words are necessary to satisfy the separate
document rule; for instance, an “order’s denomination as an
‘order,’ rather than a ‘judgment,’ does not mean that it fails to
satisfy the separate document requirement.” Local Union No.
1992, IBEW v. Okonite Co., 358 F.3d 278, 285 (3d Cir. 2004).
Rather, an order is treated as a separate document if it satisfies
three criteria: (1) it must be self-contained and separate from
the opinion, (2) it must note the relief granted, and (3) it must
omit (or at least substantially omit) the trial court’s reasons for
disposing of the claims. Id.; In re Cendant Corp. Securities
Litig., 454 F.3d 235, 241 (3d Cir. 2006).

       The February 17 Order easily satisfies the second and
third criteria. 4 Because it is not “self-contained and separate
from the opinion,” however, it does not satisfy the first. In
Cendant, we explained that although the separate-document
requirement does not mean that the judgment must necessarily

  3
       The LJCC concedes this. LeBoon, inexplicably, contests it.
   4
       The February 17 Order reads:

          a. Plaintiff’s Motion for Summary Judgment is DENIED;
          b. Defendant’s Motion for Summary Judgment is
             GRANTED with regard to Plaintiff’s Claims under 42
             U.S.C. § 2000(e);
          c. This case is ORDERED DISMISSED for lack of
             federal jurisdiction. JUDGMENT IS ENTERED
             in this case in favor of Defendant. The Clerk of Court
             is hereby directed to close this case for statistical
             purposes.

                                  8
be distinct from another document, it means “the judgment must
be set forth in a document that is independent of the court’s
opinion or decision, regardless whether that opinion takes
written form.” Id. at 242. To be independent of the court’s
opinion, an order must be separately titled and captioned, not
paginated consecutively to the opinion or memorandum, not
stapled or otherwise attached to the opinion, and must be
docketed separately. See id. at 241; Local Union No. 1992, 358
F.3d at 284-85. The February 17 Order is set forth in a
document titled “ORDER AND OPINION.” The document
contains only one caption and one signature line and is
consecutively paginated throughout. The judgment portion of
it appears about three-quarters of the way down page 14 of the
15-page document and is separately headed “ORDER.” The
entire document was docketed as “OPINION AND ORDER.”
Thus the order does not satisfy the separate-document rule.
Consequently the judgment set forth in it should be considered
“entered” under Fed. R. App. P. 4(a)(7)(A)(ii) 150 days after
February 17, 2005 (the day it was docketed), and LeBoon had 30
days after that to file her appeal. Fed. R. App. P. 4(a)(1)(A).5

       The final question regarding the timeliness of LeBoon’s
appeal is whether she was entitled to the additional 150 days to
file an appeal or whether, as the LJCC argues, she lost the
protections of the separate-document rule by clearly signaling
that she understood the February 17 Order as a final judgment
subject to appeal. The LJCC contends that LeBoon waived the
application of the separate-document rule by filing a motion for


   5
     Although LeBoon’s appeal was filed before 150 days had
elapsed (and thus before the formal entry of judgment), we are
not prevented from entertaining it. See Fed. R. App. P. 4(a)(2)
(“Filing Before Entry of Judgment. A notice of appeal filed
after the court announces a decision or order – but before the
entry of the judgment of order – is treated as filed on the date of
and after the entry”); Fed. R. App. P. 4(a)(7)(B) (“A failure to
set forth a judgment or order on a separate document when
required by Federal Rule of Civil Procedure 58(a)(1) does not
affect the validity of an appeal from that judgment or order.”)

                                9
reconsideration of the February 17 Order, eventually appealing
the order, and by stating at oral argument, through counsel, that
she understood the February 17 Order to be the final judgment.
We disagree.

        It is clear that a litigant can waive the application of the
separate-document rule in the sense that she may file a valid
appeal without waiting for the lapse of 150 days from the
docketing of a faulty judgment, i.e., before the faulty judgment
has been formalized by the passage of the time period
contemplated by Rule of Appellate Procedure 4(a)(7)(A).
Bankers Trust Co. v. Mallis, 435 U.S. 381 (1978) (per curiam).
The LJCC’s position, however, is that when a litigant signals
that she understands that a final judgment has been filed despite
the order’s failure to comply with the separate-document rule,
she must file an appeal within 30 days of the faulty judgment or
lose her ability to appeal altogether. This is a dubious argument.
See United States v. Indrelunas, 411 U.S. 216, 221-22 (1973)
(per curiam) (although the Government had clearly signaled its
understanding that a stipulation for damages was the final
judgment,        the separate-document provision must be
“mechanically applied in order to avoid new uncertainties as to
the date on which a judgment is entered” and therefore the
Government’s appeal was timely); Gregson & Assocs.
Architects v. Gov’t of the Virgin Islands, 675 F.2d 589 (3d Cir.
1982) (per curiam) (holding appeal was timely although the
appellant admitted it had understood a faulty judgment to be
final); Fed. R. App. P. 4(a) advisory committee notes (2002
amendments) (“[i]n drafting new Rule 4(a)(7)(B) [which
provides that appeals filed before the lapse of the 150 days that
convert a faulty judgment into a final one are valid], the
Committee has been careful to avoid phrases such as ‘otherwise
timely appeal’ that might imply an endorsement” of the rule in
a minority of the circuits that appellants who waive the separate-
document requirement must file an appeal within 30 days of the
entry of the “faulty” judgment).

       Even if it were possible to waive the protections of the
separate-document rule, LeBoon did not do so here. Waiver is
“the intentional relinquishment or abandonment of a known

                                10
right.” United States v. Olano, 507 U.S. 725, 733 (1993). It is
all too obvious from LeBoon’s pleadings that she was unaware
she could avail herself of an additional 150 days because of the
formal inadequacy of the February 17 Order. At most, she could
have forfeited her right, see id.; we decline to hold, however,
that this court is deprived of jurisdiction over an appeal through
a litigant’s unknowing forfeiture of the additional time granted
her by the Rules of Civil and Appellate Procedure, and find
instead that LeBoon’s April 4 notice of appeal was timely.6

        B. Religious Organization Exemption

       The Magistrate Judge granted summary judgment to the
LJCC on Leboon’s claim of religious discrimination because it
found that the LJCC was a “religious organization” exempted
from compliance with the religious discrimination provisions of
Title VII by Section 702 of the Civil Rights Act of 1964.
Leboon argues the LJCC was not a religious organization under


    6
       Leboon’s Notice of Appeal refers only to the Order of
March 11, 2005, and not to the February 17 Order. This
technical inadequacy, however, does not in itself deprive us of
jurisdiction over the appeal from the underlying order on the
summary judgment motions. See Matute v. Procoast Nav. Ltd.,
928 F.2d 627 (3d Cir. 1991) (although appellant filed notice of
appeal from his motion for reconsideration and did not state his
intention to appeal from the underlying dismissal, the formally
deficient filing did not result in a loss of the right to appeal; it
was clear in context that appellant intended to appeal from the
underlying order and not simply from the denial of his motion
for reconsideration), overruled on other grounds by Neely v.
Club Med Mgmt. Svcs., Inc., 63 F.3d 166 (3d Cir. 1995); Town
of Norwood, Mass. v. New England Power Co., 202 F.3d 408,
415 (1st Cir. 2000) (if the post-judgment motion addressed the
same issues decided in the underlying judgment and the district
court relied on the judgment in ruling on the post-judgment
motion, the issues decided in the underlying judgment are
properly before the court of appeals, even if the notice of appeal
fails to designate the underlying judgment).

                                11
the statute at the relevant time because it lacked financial or
administrative ties with a synagogue and its nature and purposes
were primarily cultural, not religious. The LJCC responds that
although some of its activities may have been secular in nature,
its Jewish mission and orientation qualified it as a religious
organization. We hold that the LJCC was entitled to the
protection of Section 702 during the period under scrutiny
because its structure and purpose were primarily religious.

        Section 702 of the Civil Rights Act of 1964, 42 U.S.C. §
2000e-1(a), “exempts religious organizations from Title VII’s
prohibition against discrimination in employment on the basis of
religion.” Corp. of the Presiding Bishop of the Church of Jesus
Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 329 (1987).
It provides that 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-1(a).

        The statute does not define what constitutes “a religious
corporation, association, educational institution, or society”; as
the Ninth Circuit Court of Appeals has put it, “[a]ll significant
religious and secular characteristics must be weighed to
determine whether the corporation’s purpose and character are
primarily religious.” EEOC v. Townley Eng’g & Mfg. Co., 859
F.2d 610, 618 (9th Cir. 1988). Over the years, courts have
looked at the following factors: (1) whether the entity operates
for a profit, (2) whether it produces a secular product, (3)
whether the entity’s articles of incorporation or other pertinent
documents state a religious purpose, (4) whether it is owned,
affiliated with or financially supported by a formally religious
entity such as a church or synagogue, (5) whether a formally
religious entity participates in the management, for instance by
having representatives on the board of trustees, (6) whether the
entity holds itself out to the public as secular or sectarian, (7)
whether the entity regularly includes prayer or other forms of
worship in its activities, (8) whether it includes religious
instruction in its curriculum, to the extent it is an educational

                                12
institution, and (9) whether its membership is made up by
coreligionists. See Samford v. Killinger, 113 F.3d 196 (11th Cir.
1997); EEOC v. Kamehameha Schools / Bishop Estate, 990 F.2d
458 (9th Cir. 1993); Townley, 859 F.2d at 618-19 (9th Cir.
1988); EEOC v. Mississippi College, 626 F.2d 477 (5th Cir.
1980).

        It is apparent from the start that the decision whether an
organization is “religious” for purposes of the exemption cannot
be based on its conformity to some preconceived notion of what
a religious organization should do, but must be measured with
reference to the particular religion identified by the organization.
Thus not all factors will be relevant in all cases, and the weight
given each factor may vary from case to case. For instance,
although the absence of a proselytizing effort may be a factor
under certain circumstances, it will have no significance with a
non-proselytizing religion – or thus with a determination
whether a Jewish organization is religious. Cf. Kamehameha,
990 F.2d at 463 (listing as a factor leading to the conclusion that
defendant schools were not entitled to the religious exemption
that they had “explicitly disavowed any effort to convert non-
Protestant students”). With this caveat in mind we proceed to
the analysis.

       The LJCC is a non-profit organization. Its Articles of
Incorporation and its Bylaws state that its mission is “to enhance
and promote Jewish life, identity, and continuity.” During the
relevant period (defined by LeBoon herself as 1998 to 2002), the
walls of the LJCC’s lobby carried its mission statement, which
was to “develop, involve, and sustain a cohesive Jewish
community through identity, education, and cooperation for all
ages.”

        The LJCC’s corporate designee testified that the LJCC
“espouse[d] Jewish values” although “the Jewish values [it]
espouse[d] are universal.” These values include “Tikkun olam,”
meaning healing the world, “Tzadakah,” meaning doing the
right thing, and “Rachamim,” meaning tolerance of other faiths.
The LJCC attempted to teach these values in various ways; for
instance, a certain charity drive involving the collection of

                                13
pennies was described as being “designed to get children
involved in tzadakah.”

       The rabbis from the three local synagogues played an
advisory role in the LJCC’s management. Under the LJCC’s
bylaws, they served as honorary, non-voting members of the
Board of Trustees. When the LJCC held a retreat in February
2002 to discuss its financial troubles, all three rabbis attended.
Minutes of the Executive Committee and Personnel Committee
meetings show that Natalie Featherman’s contract as Executive
Director was not renewed for the reason, among others, that she
did not “have the confidence of the leaders of the synagogues
and other organizations.” The rabbis and presidents of the three
local synagogues were involved in the search for a new
executive director.

        Although the LJCC was financially independent from the
local synagogues (as the majority of its budget came from
“programming services and rentals”), both the synagogues and
local Jewish organizations gave it instrumental financial
support. The synagogues assisted with fundraising and the
Lancaster Jewish Federation campaign contributed between 15
and 17% of the LJCC’s budget annually. The extent to which
the LJCC expected to be supported by coreligionists is shown by
the fact that it named the different donor levels with Hebrew
words. In order to be considered a “Zahav” (“gold”)-level donor
to the LJCC, a person had to contribute $613 – as many dollars
as the commandments in the Hebrew Bible. See Cecil Roth, The
Standard Jewish Encyclopedia 1331 (1959) (entry for
“Mitzvah”).

        While endeavoring not to be identified with any one of
the three local synagogues, the LJCC maintained close and
active ties with them and other Jewish organizations. The LJCC
strove to serve as a “clearing house” for local Jewish people and
kept literature from all three area synagogues. Reciprocally, the
synagogues distributed the LJCC’s information.               The
synagogues, and particularly the rabbis, also provided
programming input and were involved in the LJCC’s
celebrations of Jewish holidays.         One local synagogue,

                               14
Congregation Shaarai Shomayim, built a Sukkah (a temporary
structure used during the holiday of Sukkot) in the LJCC’s
family park and was involved in a Hanukkah dinner in 1999.
The Jewish women’s organization Hadassah held its annual
Rabbi’s Forum at the LJCC at least until 2003, when it decided
to hold it at one of the local synagogues because of its
deteriorating relationship with Natalie Featherman. In early
2002 the LJCC hosted a meeting of the “Messiah Truth Project,”
an organization that aims to combat the conversion of Jews to
Christianity.

         Jewish religious belief played a significant role in the
life of the LJCC. In 1998, at Hanukkah, the LJCC’s building
was rededicated by the rabbis of the three local synagogues, and
the rabbis “ceremonially attached [a] mezuzah to the door of the
Social Hall.” A mezuzah is a scroll inscribed with certain verses
from the Torah which the Jews are commanded by the Torah to
affix on every doorway. Standard Jewish Encyclopedia 1314.
The LJCC also observed the Jewish Sabbath and, on at least one
occasion, stood by this religious duty against its financial
interest – at the end of 2001, despite its financial woes, the
Board unanimously decided not to allow a certain organization
to rent the facilities for a holiday fair because it did not wish to
host a profit-making activity on the Sabbath. Board meetings
from 1998 also describe plans for a “Melavveh Malkah,” which
is    the “concluding Sabbath meal.”             Standard Jewish
Encyclopedia 1292.

       Several of the LJCC’s activities involved observance of
the Jewish religious calendar, although these activities did not
necessarily involve holy services. During the relevant time,
Board meetings frequently began with a reading from the Torah
related to that week in the Hebrew calendar. The center held
events for Sukkot, Purim, Hanukkah, and Yom HaShoah, a
holiday in remembrance of the Holocaust, when prayers were
said for the dead.

       The LJCC kept a kosher kitchen, although non-kosher
foods could be brought into the building. In 1999, the LJCC’s
mashgiach, or person in charge of supervising compliance with

                                15
kosher laws, resigned. It is undisputed that a new mashgiach
was not hired. However, the LJCC worked with one of the
rabbis to create a kosher committee to supervise the kitchen, and
attempted to ensure that functions would be kept kosher for the
comfort of those who strictly observed the kosher mandate.

        To the extent that the LJCC also served as an educational
institution, the balance of Jewish, as opposed to other content,
in the curriculum was in flux during the period under scrutiny.
Indeed, when the new director, Natalie Featherman, was hired,
a part of her mandate was to “put[] an emphasis on the Jewish
in Jewish Community Center.” For instance, Featherman
introduced a Judaic curriculum into the preschool program,
which had been non-denominational prior to mid-2002, and
supplemented it by a parallel enrichment program with a Judaic
base.

        The LJCC’s corporate designee testified that the
preschool held “Tot-Shabbat,” a weekly celebration of the
Sabbath for toddlers, involving the distribution of challah (a
traditional bread) and the recitation of blessings. The Notes to
the Financial Statements for 2001 and 2002 state that “[i]n
keeping with the philosophy of the Jewish Community Center,
[the preschool] integrate[d] the Jewish holidays as they [arose]
throughout the year. [It] also explore[d] multicultural themes
and each child’s unique cultural background.”

        Judaic programming was available for adults through the
Holocaust Memorial Library and Center for Diversity and
Tolerance Education. The Center also held Beit Midrash (study
hall) meetings with rabbis and other Jewish educators. In 1999,
the LJCC ran a program called “Jewish U,” a Jewish education
series. The record does not clarify the content of this series. For
a time, the B’nai B’rith Youth Organization, a world-wide
organization for Jewish teens, met at the LJCC. It stopped doing
so when the group’s advisor resigned from the position.

       To summarize, the LJCC saw itself as a center for the
local Jewish community, identified itself as Jewish through the
mezuzah on its doorway, relied on coreligionists for financial

                                16
support, and offered instructional programs with a Jewish
content. The Jewish religious calendar provided the rhythm for
the LJCC’s yearly (and even weekly) activities; the three area
rabbis were involved in management decisions, including the
search for an executive director; and the Board of Trustees
began meetings with Biblical readings and remained acutely
conscious of the Jewish character of the organization. These
characteristics of the LJCC, taken together, clearly point to the
conclusion that the LJCC was primarily a religious organization.

       LeBoon argues that despite all this the LJCC is not
sufficiently religious to qualify for Section 702 protection. She
points out that it engaged in secular activities, such as lectures
and instructions with no religious content, and once even rented
space to a Hindu group for meetings , that its employees were
overwhelmingly Gentile, that it accepted United Way funds with
the promise that it would not discriminate in the funded
programs, and that it failed to ban non-kosher foods. None of
these factors is decisive.

         First, religious organizations may engage in secular
activities without forfeiting protection under Section 702. See
Hall v. Baptist Memorial Care Corp., 215 F.3d 618 (6 th Cir.
2000) (where a college has clear religious overtones, the fact
that it trains its students for health care, a secular activity, does
not deprive it of Section 702 protection); Feldstein v. Christian
Science Monitor, 555 F. Supp. 974, 977-78 (D.Mass.1983) (a
newspaper with a close relationship with the Christian Science
Church was allowed to discriminate in favor of co-religionists
although it held itself out as an objective and unbiased reporter
of world news). Of course the religious organization exemption
would not extend to an enterprise involved in a wholly secular
and for-profit activity. See Townley, 859 F.2d at 610 (declining
to extend Section 702 protection to a corporation manufacturing
industrial equipment that claimed a religious exemption on the
basis of its owners’ intent to pervade the activity with their
religious belief).

       Second, religious organizations need not adhere
absolutely to the strictest tenets of their faiths to qualify for

                                 17
Section 702 protection. See Hernandez v. Comm'r, 490 U.S.
680, 699 (1989) (“[i]t is not within the judicial ken to question
the centrality of particular beliefs or practices to a faith, or the
validity of particular litigants' interpretations of those creeds”);
Thomas v. Review Bd. of Indiana Employment Sec. Division,
450 U.S. 707, 715-16 (1981) (declining to hold that a certain
individual’s belief was not “religious” for purposes of a free
exercise claim because there existed interfaith differences of
interpretation). For example here, the LJCC’s tolerance of non-
kosher foods on its premises is balanced by its continued attempt
to maintain a kosher kitchen.

        Third, religious organizations may declare their intention
not to discriminate, as the LJCC did to the United Way and in its
employee handbook, without losing the protection of Section
702. See Hall, 215 F.3d at 625 (Section 702 exemption could
not be waived, even if the entity invoking it had “represented
itself as being an equal opportunity employer and . . . received
federal funds”).

        Fourth, the organization need not enforce an across-the-
board policy of hiring only coreligionists. Little v. Wuerl, 929
F.2d 944, 951 (3d Cir. 1991); Samford v. Killinger, 113 F.3d
196, 199-200 (11th Cir. 1997) (no need for an educational
institution to engage in a “strict policy of religious
discrimination” to be entitled to the exemption).

        We disagree with LeBoon’s contention that the LJCC’s
willingness to welcome Gentile members and even to host
Hindu services is incompatible with the view that the LJCC was
a religious organization. Indeed, these characteristics are clearly
tied to some of the Jewish principles that guided the LJCC –
tolerance toward other faiths, healing the world, and doing the
right thing.7 We will not deprive the LJCC of the protection of


   7
     Although the LJCC itself acknowledges that some of these
principles exist outside Judaism, to the extent that the LJCC
followed them as Jewish principles this does not make them any
less significant.

                                18
Section 702 because it sought to abide by its principles of
“tolerance” and “healing the world” through extending its
welcome to non-Jews.

       We also decline LeBoon’s invitation to hold that the
LJCC is a center for Jewish culture rather than religion for the
reasons explained by the Magistrate Judge, namely, because to
engage in such an analysis would risk precisely the sort of state
entanglement with religion that the Supreme Court has
repeatedly warned against. See Amos, 483 U.S. at 343
(Brennan, J., concurring) (noting that the determination whether
a particular activity of a religious organization is religious or
secular “results in considerable ongoing government
entanglement in religious affairs”); Lemon v. Kurtzman, 403
U.S. 602, 613 (1971); Leboon v. Lancaster Jewish Cmty. Ctr.
Ass’n, 04-cv-430, 2005 WL 387642 at *3 n.3(E.D. Pa. Feb. 17,
2005).

        Finally, we are not persuaded by the Ninth Circuit Court
of Appeals’ suggestion, on the basis of legislative history, that
Section 702 should be understood to cover little more than
formal houses of worship. Townley, 859 F.2d at 618. The court
based this assertion on one of the congressional debates that led
to the passage of the Civil Rights Act of 1964, which it
summarized as follows:

                In 1963, the House Judiciary Committee
       drafted H.R. 7152, the bill which was the basis of
       much of the Civil Rights Act of 1964. Title VII
       of the bill included a section that stated the title
       would not apply to a “religious corporation,
       association, or society.” . . . [During the House
       debate] Representative Purcell proposed
       amending H.R. 7152 to allow an educational
       institution to discriminate on the basis of religion
       if the institution was wholly or partly supported or
       managed “by a particular religion or by a
       particular religious corporation, association, or
       society,” or if the institution’s curriculum was
       directed toward the propagation of a particular

                               19
       religion. EEOC Legislative History of Titles VII
       and XII of the Civil Rights Act of 1964, at 3197
       (1968). . . .

               [A]n issue in the debate was whether such
       institutions were already protected by the
       “religious corporation” exemption.            The
       consensus was that they were not protected if they
       were merely “affiliated” with a religious
       organization. . . .

              Congress’s conception of the scope of
       section 702 was not a broad one. All assumed that
       only those institutions with extremely close ties to
       organized religions would be covered. Churches,
       and entities similar to churches, were the
       paradigm.

Townley, 859 F.2d at 617-18.

        The amendment was introduced and eventually approved.
We do not, however, believe that this one bit of legislative
history supports the assertion in Townley that Congress assumed
only “[c]hurches, and entities similar to churches” would be
protected by the “religious corporation, association, and society”
language (i.e., by what is now Section 702) without the
proposed amendment to the bill. Id. at 618. First, as Townley
itself acknowledges, “[the] debate is far from comprehensive,”
and although some congressmen expressed concern that the
courts would interpret the existing “religious corporation,
association, or society” language narrowly and not extend the
exemption to religiously affiliated colleges and schools, the
perception that the language was insufficient was hardly
unanimous. Indeed, the discussion was so far from enlightening
on the intended beneficiaries of the protection as to prompt one
Congressman to comment that “if there ever was a legislative
history which became confused in less than an hour, this is it. .
. . [E]very shade of opinion has been ventured on this language
which is conceivable.” EEOC Legislative History at 3204.
Second, the debaters’ concern overwhelmingly regarded the

                               20
ability of a secular educational institution teaching secular
subjects, but affiliated with or owned by a religious order or
organization, to hire preferentially persons of the same faith.
See, e.g., EEOC Legislative History at 3199 (Ouachita Baptist
College), 3202 (Catholic colleges and schools). It is a large leap
from acknowledging this concern, whether or not well-founded,
to concluding that the Congressmen believed the existing bill to
protect virtually nothing beyond formal houses of worship. In
fact, the concern expressed during the debate is largely
irrelevant to the question we face today, since the LJCC is
readily distinguishable from the examples of schools and
colleges that pepper the transcript. The LJCC’s main purpose
was to “enhance and promote Jewish life, identity, and
continuity,” not to teach calculus or chemistry, whether or not
in a religious atmosphere. Thus we do not find the legislative
history helpful and decline to follow the conclusion drawn from
it in Townley.

       Because, during the period under consideration, the
LJCC’s primary purpose was religious, we will affirm the
District Court’s dismissal of LeBoon’s claim of religious
discrimination.

       C. Retaliation Claim

        LeBoon argues the Magistrate Judge erred in granting
summary judgment for the LJCC on her claim of retaliation
under Title VII. The Magistrate Judge held that although
LeBoon’s evidence, considered in the light most favorable to
her, supported the conclusion that she had opposed conduct by
the LJCC that she believed to be unlawful discrimination, she
had not produced enough evidence to allow a reasonable fact-
finder to find that she was fired because of her complaints.
LeBoon contends that she has produced sufficient evidence of
a causal connection. We agree with the Magistrate Judge that
LeBoon cannot survive summary judgment on her claim of
retaliation.

       To establish a prima facie case of retaliation under Title
VII, a plaintiff must show that (1) she engaged in protected

                               21
activity, (2) the employer took a materially adverse action
against her, and (3) there was a causal connection between the
protected activity and the employer’s action. Moore v. City of
Philadelphia, 461 F.3d 331, 341-42 (3d Cir. 2006).8

       LeBoon clearly suffered a materially adverse action,
since she was terminated from her job. She has also proffered
evidence that she engaged in activity protected by Title VII
(namely, coworker Deborah Brown’s affidavit that she
witnessed LeBoon complaining to Featherman, at the end of
May, 2002, that a certain African-American employee had been
terminated because of her race).9 The question is whether

   8
     In order to show that she was terminated because of her
complaints about the firing of her coworkers, LeBoon need not
prove that retaliation was the sole reason for the LJCC’s
decision; she must prove, however, that it was a determinative
factor of the employment decision, meaning that she would not
have been terminated but for her protected activity. Watson v.
SEPTA, 207 F.3d 207, 215 (3d Cir. 2000); Caver v. City of
Trenton, 420 F.3d 243, 267 (3d Cir. 2005).
    9
       Protected activity for purposes of a prima facie case of
retaliation does not mean a formal action against the employer.
“Opposition” to discrimination under the retaliation provision
“can take the form of informal protests of discriminatory
employment practices, including making complaints to
management.” Moore v. City of Philadelphia, 461 F.3d 331, 343
(3d Cir.2006) (internal citation and quotation marks omitted.)
In addition, the plaintiff making a retaliation claim need not
prove the merits of the underlying discrimination complaint, but
only that a reasonable person in these circumstances would have
concluded that the employer was engaging in discriminatory
conduct. Id. at 344. Here, LeBoon’s belief was not clearly
unreasonable, although the terminated co-worker had taken an
unauthorized day off immediately before being fired.

        LeBoon also claims that she complained to Featherman
and others about six months before her termination about the
firing of an employee who may have had a speech impediment,

                              22
LeBoon has placed enough evidence in the record to create a
genuine issue of material fact as to whether there was a causal
link between her complaints and her termination. We hold that
she has not.

      LeBoon argues that the causal link is established by the
temporal proximity of her complaint to her termination (three
months) and by several episodes in the intervening periods that
show that her relationship with Featherman deteriorated after
her complaint. The LJCC disagrees.

       We consider “a broad array of evidence” in determining
whether a sufficient causal link exists to survive a motion for
summary judgment. Farrell v. Planters Lifesavers Co., 206
F.3d 271, 284 (3d Cir. 2000). Where the temporal proximity
between the protected activity and the adverse action is
“unusually suggestive,” it is sufficient standing alone to create
an inference of causality and defeat summary judgment. See
Clark County School Dist. v. Breeden, 532 U.S. 268, 273-74
(2001) (temporal proximity alone, when “very close,” can in
some instances establish a prima facie case of retaliation); Jalil
v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989) (reversing
summary judgment in favor of the defendant where plaintiff had
been discharged two days after his employer’s receipt of his
EEOC claim). Where the temporal proximity is not “unusually
suggestive,” we ask whether “the proffered evidence, looked at
as a whole, may suffice to raise the inference.” Farrell, 206
F.3d at 280 (internal citation and quotation marks omitted).
Among the kinds of evidence that a plaintiff can proffer are
intervening antagonism or retaliatory animus, inconsistencies in
the employer’s articulated reasons for terminating the employee,
or any other evidence in the record sufficient to support the
inference of retaliatory animus. Id. at 279-81. See also



custodian Troy Rollman. There is no support for this in the
record beyond LeBoon’s own testimony; in any event, any claim
of retaliation based on this alleged complaint would fail for the
same reasons as the claim related to the termination of LeBoon’s
African-American coworker.

                               23
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (“The
mere existence of a scintilla of evidence in support of the
plaintiff's position will be insufficient; there must be evidence
on which the jury could reasonably find for the plaintiff.”).

       Although there is no bright line rule as to what
constitutes unduly suggestive temporal proximity, a gap of three
months between the protected activity and the adverse action,
without more, cannot create an inference of causation and defeat
summary judgment. See Clark County School Dist. 532 U.S. at
273 (citing favorably Richmond v. ONEOK, Inc., 120 F.3d 205,
209 (10th Cir.1997), which rejected such an inference where the
events were three months apart); Andreoli v. Gates, 482 F.3d
641, 650 (3d Cir. 2007) (five-month time period between
employee’s complaint and first adverse action was, without
additional evidence, insufficient to raise an inference of
causation). Thus we ask whether there is sufficient evidence in
the record for a reasonable fact-finder to determine that
LeBoon’s termination was caused by her complaint about the
termination of her coworker.

        LeBoon has presented evidence of her strained
relationship with Featherman during the last several months of
her employment. It is undisputed, however, that LeBoon started
having difficulties with Featherman almost immediately upon
Featherman’s appointment as Executive Director. In January,
2002, she expressed her disagreement with the LJCC’s hosting
of a Messiah Truth Project meeting; in February, she
complained to Featherman about accounting irregularities (and
also reported them to a Pennsylvania hotline); also in February,
she was relieved of the facility management aspects of her
position; in April or May, 2002, the security of the business
office, for which LeBoon was responsible, was compromised,
and as a result LeBoon established a home office; LeBoon and
Featherman disagreed as to whether Featherman authorized this.
In May, LeBoon reported to the Board Featherman’s decision to
offer another employee, Stefan Dabrowski, additional
compensation in the form of a “reimbursement” of the health
insurance premium that the LJCC did not have to pay because
he had opted out of insurance, and also Featherman’s backdating

                               24
of a memo to the personnel file about this decision. Featherman
was forced to explain herself to the Board in a memorandum.
Also in May, the Joint Personnel Committee sent a
memorandum to the Board expressing its concern with
Featherman’s actions, several of which were reported by
LeBoon. The memorandum memorializes another instance of
conflict between Featherman and LeBoon, arising from
LeBoon’s request that Featherman formalize a reprimand to
another employee. Again in the same month, the LJCC received
payment of a grant meant for an elevator in response to invoices
sent by Featherman, and LeBoon called the grantor to state the
elevator work had not yet begun. The grantor wrote Featherman
to return the money on June 3, only a few days after LeBoon’s
African-American coworker was terminated; LeBoon testified
that Featherman must have known LeBoon had caused the
request for the grant to be returned.

        None of the events after LeBoon’s complaint about the
termination of her coworker in late May, 2002, show a
qualitatively different relationship between LeBoon and
Featherman. The record includes evidence that Featherman
asked LeBoon to report to Dabroski rather than directly to her (a
change which, according to LeBoon herself, was in response to
her insistence on reporting Featherman’s irregularities to the
Board); that LeBoon again complained to an official of the
LJCC about an irregularity involving an employee’s time sheets,
which caused Featherman to tell LeBoon to stop “snooping
around her employees”; and that, two weeks before being fired,
LeBoon wrote a memo to Featherman recording her compliance
with Featherman’s request that Dabrowski be paid as yet
unearned vacation pay. The record also shows that another
employee, Deborah Brown, resigned in June, explaining in her
letter of resignation that Featherman had told Brown she could
no longer trust her because Brown reported her grievances
regarding Featherman to the Personnel Committee.

       Thus, although the evidence in the record clearly shows
a tense relationship between LeBoon and Featherman, it does
not sustain the inference that it was caused by LeBoon’s
protected activity. Rather, there is a clear pattern of LeBoon’s

                               25
complaining to Board members about Featherman or insisting
on respect for formalities and Featherman’s displeasure at these
reports and limitations on her authority even before any mention
of possible discriminatory conduct on the part of the LJCC;
there are also clear indications that LeBoon was not the only
person who suffered the consequences of complaining to the
Board about Featherman.

        LeBoon argues that she can show causation because of
inconsistencies in the LJCC’s explanations for her termination.10
She contends that the LJCC did not save any money by
terminating her, since it paid those who took over her tasks more
than it saved.

        There can be no serious dispute that the LJCC was in dire
financial straits during the relevant period. The Board minutes
reflect an increasing preoccupation with the LJCC’s chances of
survival; at the Board meeting held four days before LeBoon’s
termination, the treasurer reported the LJCC did not “have
enough to get through another month,” and the possibility of
declaring bankruptcy was considered. As to the redistribution
of LeBoon’s duties, after LeBoon’s termination the bookkeeping
was done by Featherman, Dabroski, and some volunteers; it was
not until the merger creating the Jewish Alliance of Lancaster
that two different employees took over the duties that had been
LeBoon’s. Although financial difficulties in themselves do not
explain why LeBoon in particular was fired, the LJCC’s
explanation is not so inconsistent or incongruous, in the absence
of any other evidence, as to give rise to an inference that
LeBoon was terminated because of her protected activity.


    10
        Although an examination of the employer’s proffered
legitimate reason for the adverse action is frequently delayed
until the second and third parts of the familiar McDonnell
Douglas burden-shifting framework in pretext cases, “evidence
supporting the prima facie case is often helpful in the pretext
stage and nothing about the McDonnell Douglas formula
requires us to ration the evidence between one stage or the
other.” Farrell, 206 F.3d at 286.

                               26
      We agree with the District Court that no reasonable jury
could find that LeBoon’s termination was caused by her
complaint about the termination of an African-American
coworker, and will affirm the grant of summary judgment on
LeBoon’s retaliation claim.

     D. The District Court’s Denial of LeBoon’s Motion to
Reopen Discovery

       The final question before us is whether the District Court
erred by denying LeBoon’s motion to reopen discovery to allow
the deposition of David Goodman, a person affiliated with the
Messiah Truth Project, after he had been located.

       A district court’s denial of discovery is reviewed for
abuse of discretion. United States v. Hedaithy, 392 F.3d 580,
605 (3d Cir. 2004). Here, LeBoon moved to reopen discovery
in February, 2005, over two months after the close of discovery.
At the time of her motion, LeBoon had filed a motion for
summary judgment, indicating that, from her perspective, the
record was sufficient to warrant relief in her favor. See
Bencivenga v. Western Pa. Teamsters & Employees, 763 F.2d
574, 576 (3d Cir. 1985). In addition, she did not file an affidavit
indicating that she needed additional discovery to respond to the
LJCC’s motion for summary judgment, as provided under
Federal Rule of Civil Procedure 56(f). See Radich v. Goode, 886
F.2d 1391 (3d Cir. 1989) (district court did not abuse discretion
by granting summary judgment despite appellant’s contention
that more discovery was needed when appellant failed to comply
with Rule 56(f) and specify with particularity what discovery
was needed). We conclude, therefore, that the Magistrate Judge
did not abuse his discretion in denying LeBoon’s motion.

IV. Conclusion

      For the reasons stated above, we will affirm the District
Court’s order denying LeBoon’s motion for summary judgment
and granting summary judgment to the Lancaster Jewish
Community Center.



                                27
LeBoon v. Lancaster Jewish Community Center Assoc.,

05-2073




RENDELL, Circuit Judge, dissenting.

        This case presents an issue of statutory interpretation. As
the majority points out, Title VII “does not define what
constitutes ‘a religious corporation, association, educational
institution, or society.’” Maj. Op. at 12. Our task, therefore, is
to determine what Congress meant when it employed those
words and provided that the hiring and firing decisions of such
entities should be immune from suits alleging discrimination on
the basis of religion. Rather than inquire into Congress’s intent,
however, the majority refers with broad brush to the approaches
taken by other courts, fails to give serious consideration to the
relevant legislative history, and embraces a hybrid-scattershot
test that examines whether the Lancaster Jewish Community
Center (“LJCC”) kept a kosher kitchen, affixed a mezuzah to its
doorway or recorded its board meetings using the Hebrew
calendar. From the particulars of the LJCC’s operation, the
majority concludes that the LJCC is Jewish enough to qualify
as a “religious corporation.”

       I suggest that the majority’s analysis and ultimate ruling
disregard basic canons of statutory interpretation, invite ill-
advised judicial forays into the minutiae of private religious
practice and, worst of all, sanction discriminatory employment
decisions that go far beyond those Congress intended to exempt
from Title VII. Therefore, I must respectfully dissent from this
aspect of the majority’s opinion.11



  11
    I do not disagree with the majority’s rulings with respect to
parts I, II.A, II.C and II.D.

                                28
                                I.

       We come to this issue tabula rasa. As I noted above,
Congress did not include within Title VII a definition of the
term “religious corporation.” See Maj. Op. at 19-21. Nor have
we yet had occasion to consider the meaning of that phrase.
Indeed, a survey of our sister courts of appeals reveals that
“[t]here is little precedent on the meaning of ‘religious
corporation’ under [§ 702(a)].” Fike v. United Methodist
Children’s Home of Va., Inc., 547 F. Supp. 286, 290 (E.D. Va.
1982); see also EEOC v. Townley Eng’g & Mfg. Corp., 859
F.2d 610, 618 (9th Cir. 1988) (noting that “the case law on this
question is not very helpful”). Nevertheless, this lack of
authority does not diminish our responsibility to interpret
“religious corporation” in a way that “give[s] effect to
Congress’s intent.” Rosenberg v. XM Ventures, 274 F.3d 137,
141 (3d Cir. 2001).

        It is axiomatic that, when the meaning of a phrase
employed by Congress is undefined and unclear, we must begin
our efforts to determine its meaning with a review of the
relevant legislative history. “The Supreme Court has repeatedly
stated: ‘Where . . . the resolution of a question of federal law
turns on a statute and the intention of Congress, we first look to
the statutory language and then to the legislative history if the
statutory language is unclear.’” Murphy v. Dalton, 81 F.3d 343,
350 (3d Cir. 1996) (quoting Blum v. Stenson, 465 U.S. 886, 896
(1984)); see also United States v. Gregg, 226 F.3d 253, 257 (3d
Cir. 2000) (“Where the statutory language does not express
Congress’s intent unequivocally, a court traditionally refers to
the legislative history and the atmosphere in which the statute
was enacted in an attempt to determine the congressional
purpose.”); Dir., Office of Workers’ Comp. Programs v. Sun
Ship, Inc., 150 F.3d 288, 291 (3d Cir. 1998) (“If the statutory
language is ambiguous, we look to legislative history to
determine congressional intent.”). The majority fails to take
even this most basic step, referring in conclusory fashion to the
analysis of the legislative history supplied by another court.
Maj. Op. at 19-21. A thorough analysis of the legislative
history makes clear that Congress intended the phrase “religious

                               29
corporation” to mean those organizations funded or controlled
by a religious group.

                               II.

       The current version of Title VII includes two exemptions
pertinent to this case. The first is located in § 702(a) and
provides that the anti-discrimination provisions of Title VII
“shall not apply . . . to a religious corporation, association,
educational institution, or society.” The second is located in
§ 703(e)(2) and provides that

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

       While Title VII’s drafters included the § 702(a)
exception in the first draft of H.R. 7152 – “the bill which was
the basis of much of the Civil Rights Act of 1964,” Townley,
859 F.2d at 617 – they did not include the § 703(e)(2)
exception. Fearing that § 702(a) would not include situations
in which an educational institution had aligned itself with a
particular faith, but was not fully owned or supported by that
faith, Representative Graham Purcell offered an amendment
that would create the exception now located in § 703(e)(2). At
issue in the floor debate over the Purcell Amendment was
whether it was necessary – that is, whether the exemption
located under § 702(a) was already sufficient to cover the
relationships of concern to Rep. Purcell. Or course, Rep.

                               30
Purcell believed that it was not and, in support of his argument,
said:

              In my study of the bill, I discovered that
       generally the church-affiliated schools and
       colleges that are not protected by these two
       attempts to exempt them.



               Almost without exception, the term
       “religious corporation” would not include
       church-affiliated schools unless this definition
       should received the most liberal possible
       interpretation by the courts. Actually most
       church-related schools are chartered under the
       general corporation statutes as nonprofit
       institutions for the purpose of education.

EEOC Legislative History of Titles VII and XI of the Civil
Rights Act of 1964, at 3197 (1968) (emphasis added).12

        Later in the debate, Representative Herbert Ray Roberts
rose to inquire about the status of a religious orphanage in his
district and whether it would be considered exempt under
§ 702(a). In response, Representative Franklin Delano
Roosevelt, Jr. rose and asked whether “the organization . . .
[was] wholly owned by [the] religious order.” Id. at 3201
(emphasis added). When Representative Roberts responded
that it was, Representative Roosevelt said that it would
“unquestionably” be exempt under § 702(a). Id. Representative
Roberts rose once again to inquire about the same orphanage


  12
     Notably, the LJCC has represented itself as an “educational
organization” before the Internal Revenue Service, see Appx. at
1058, and as an entity created “[t]o provide educational,
recreational, social, cultural, and human services to all members
of the community,” before the Commonwealth of Pennsylvania
Department of State, see id. at 1080.

                               31
and, in response, Representative Emanuel Celler, then
Chairman of the Judiciary Committee and instrumental in the
drafting and passage of the Civil Rights Act, rose to say that the
orphanage would fall under § 702(a) “[i]f it [was] a wholly
church supported organization, that is, a religious corporation
that comes under section [702(a)].” Id. at 3204 (emphasis
added).     In short, “the consensus was that [religious
corporations] were not protected [under § 702(a)] if they were
merely ‘affiliated’ with a religious organization.” Townley, 859
F.2d at 617.

        Eventually, Congress passed the Purcell Amendment,
confirming that it understood the § 703(e)(2) exemption to
require a lesser degree of association between an entity and a
religious sect than what would be required under § 702(a). This
is made all the more obvious by the fact that, since § 702(a)
already exempted religious “educational institution[s],” there
would have been no need to create an entirely new section if
Congress had already intended § 702(a) to encompass
relationships in which schools or colleges were not actually
owned or controlled by a formal religious organization.
Therefore, the distinction between § 702(a) and § 703(e)(2) is
that the former requires an extremely close nexus between the
entity and the religion while the latter requires a lesser showing.
See, e.g., Fike, 547 F. Supp. at 290 n.3 (describing the
§ 703(e)(2) exemption as the “more lenient exemption” of the
two). Thus, § 703(e)(2) applies only to an entity that is “in
whole or in substantial part, owned, supported, controlled or
managed by a particular religion,” while § 702(a) requires a
showing that the entity is more than “in substantial part, owned,
supported, controlled or managed by a particular religion.” This
leaves very little room for an organization financially or
structurally independent of a religious order to avail itself of the
§ 702(a) exemption.

       Looking at the LJCC through this lens, there is no doubt
that it does not qualify under § 702(a). With respect to
governance, the LJCC, during the relevant time period, was not
run by a synagogue, but by a board independently elected by the
Center’s members. As the majority points out, while the rabbis

                                32
from each of the three local synagogues attended board
meetings, they only “played an advisory role,” serving as
“honorary, non-voting members” of the Board. Maj Op. at 14.
With respect to financial assistance, there is simply no evidence,
nor has the LJCC contended, that any of the local synagogues
gave the LJCC any money in any of the years at issue. Instead,
the LJCC sustained itself largely by dues and income from the
rental of its facilities. The only support it received from an
arguably “religious” organization was, as the majority points
out, from the Lancaster Jewish Federation. See id. The LJCC
does not argue that the Federation was akin to a synagogue.
Therefore, far from being more than “in substantial part, owned,
supported, controlled or managed by a particular religion,” the
LJCC was an independent entity not controlled by any religious
sect while it employed Linda LeBoon and cannot now use
§ 702(a) to shield itself from LeBoon’s suit.

                               III.

       The majority’s discussion of the legislative history
misses the point, as it fails to address the concern of the
debaters that is relevant to the question before us – namely, the
relationship required between an organization and its religion
under §§ 702(a) & 703(e)(2). Instead, the majority notes that
the representatives were concerned with “the ability of a secular
educational institution teaching secular subjects, but affiliated
with or owned by a religious order or organization, to hire
preferentially persons of the same faith.” Maj. Op. at 20-21.
While the purpose of the amendment was, undoubtedly, to
address the ability of religious schools to hire and fire
preferentially, the debate explored the extent to which that had
already been achieved by § 702(a), and it is this feature of the
debate that sheds light on the meaning of that exemption.

       Additionally, the majority writes that “the LJCC is
readily distinguishable from the examples of schools and
colleges that pepper the transcript” of the legislative history.
Maj. Op. at 21. The question of whether the LJCC is “readily
distinguishable” from the schools and colleges discussed in the


                               33
debate is irrelevant because the question is not at issue.13 What
is important for our purposes is that the legislative history
reveals what Congress understood to be the differences between
the relevant exemptions, both of which refer to religious
schools and colleges. The discussion of whether § 702(a) was
sufficient to cover independent religious schools informs the
meaning of “religious corporation” since § 702(a) treated both
entities in the same way.

        The majority’s terse discussion of the legislative history
robs its analysis of the necessary focus on Congress’s intent and
consequently infects its ability to craft a coherent and
manageable test for determining what constitutes a “religious
corporation, association, educational institution, or society.”
Rather than adopting an approach that analyzes the closeness of
the LJCC’s formal relationship with a particular religious
group, the majority announces at the outset of its discussion that
the LJCC is entitled to the § 702(a) exemption “because its
structure and purpose” are primarily religious. However, it then
proceeds to discuss neither structure nor purpose, but, rather,
catalogues Jewish attributes of the LJCC’s daily operations,
such as the features of the its programming, its observance of
the Sabbath, its pre-school curriculum and the extent to which
the Jewish calendar “provided the rhythm” of its activities.
Maj. Op. at 17. As if this approach were not already
sufficiently nebulous, the majority offers a series of caveats,
which dictate that a religious corporation may avail itself of
§ 702(a) and still “engage in secular activities,” fail to conform
to “the strictest tenets” of its faith, declare its intention not to
discriminate even while doing just that, and, finally, hire
persons who subscribe to other faiths while reserving the right
to fire those same employees, solely on the basis of their
religion, should it choose to do so at some point in the future.
Maj. Op. at 17-18.



     13
     The question would have been relevant had the LJCC
sought protection under the § 703(e)(2) exemption, which it did
not.

                                34
        The majority’s test is unwieldy and rooted in neither the
text of Title VII nor in the understanding of the Congress that
wrote it.

                               IV.

        In sum, Congress understood § 702(a) to cover only
those entities that, unlike the LJCC, are controlled by a religious
sect. See Townley, 859 F.2d at 617 (“All assumed that only
those institutions with extremely close ties to organized religion
would be covered [by § 702(a)]. Churches, and entities similar
to churches, were the paradigm.”). However, another serious
concern cuts in favor of reading § 702(a) as I suggest, and that
is, as even the majority points out, that “‘[i]t is not within the
judicial ken to question the centrality of particular beliefs or
practices to a faith, or the validity of particular litigants’
interpretations of those creeds.’” Maj. Op. at 18 (quoting
Hernandez v. Comm’r, 490 U.S. 680, 699 (1989)).
Unfortunately, this is exactly the sort of scrutiny that the
majority applies to the LJCC, giving us a five-page analysis of
the particulars of the Center’s commitment to Judaism – an
analysis exemplified by its pronouncement that “the LJCC’s
tolerance of non-kosher foods on its premises is balanced by its
continued attempt to maintain a kosher kitchen.” Id. By
adopting a test that turns on the attributes of the LJCC’s
religious practice, the majority mistakenly assumes that we have
the competence to, and should, sort through the various
activities of a religiously inclined organization and pick out
those that are meaningful and those that are not. We have
previously declined to do so. See Africa v. Pennsylvania, 662
F.3d 1025, 1030 (3d Cir. 1981) (“Judges are not oracles of
theological verity, and the Founders did not intend for them to
be declarants of religious orthodoxy.”); see also DeHart v.
Horn, 227 F.3d 47, 55-57 (3d Cir. 2000) (citing many cases
establishing “a consistent and resounding theme” that represents
our, and the Supreme Court’s, reluctance to evaluate the
particulars of religious practice). We should not do so here. It
is neither practical nor desirable and, ultimately, unnecessary
given Congress’s intent.


                                35
                             V.

       For these reasons, I would reverse the District Court’s
order and remand for further proceedings on LeBoon’s
discrimination claim.




                             36
