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


6-7-2006

Curay-Cramer v. Ursuline Academy
Precedential or Non-Precedential: Precedential

Docket No. 04-4628




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                                            PRECEDENTIAL

              UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT


                           No. 04-4628


                 MICHELE CURAY-CRAMER,

                                            Appellant

                                 v.

     THE URSULINE ACADEMY OF WILMINGTON,
        DELAWARE, INC., a Delaware corporation;
            MICHAEL A. SALTARELLI;
     CATHOLIC DIOCESE OF WILMINGTON, INC.,
               a Delaware corporation;
       BARBARA C. GRIFFIN; and JERRY BOTTO



          On Appeal from the United States District Court
                    for the District of Delaware
                  District Court No. 03-cv-01014
            District Judge: Honorable Kent A. Jordan


                   Argued on January 17, 2006

          BEFORE: FUENTES, ROTH* and BECKER**,
                      Circuit Judges


          *Effective May 31, 2006, Judge Roth assumed senior
status.
       ** This case was argued before the panel of Judges
Fuentes, Roth and Becker. Judge Becker died on May 19, 2006,
before the filing of the Opinion. The decision is filed by a
quorum of the panel. 28 U.S.C. § 46(d)
                    (Filed: June 7, 2006)

Thomas S. Neuberger, Esquire (ARGUED)
Stephen J. Neuberger, Esquire
The Neuberger Firm, P.A.
Two East Seventh Street, Suite 302
Wilmington, DE 19801

             Counsel for Appellant

Barry M. Willoughby, Esquire (ARGUED)
Timothy Jay Houseal, Esquire
Michael P. Stafford, Esquire
Young Conaway Stargatt & Taylor, LLP
1000 West Street, 17th Floor
P. O. Box 391
Wilmington, DE 19899-0391

             Counsel for Appellees The Ursuline Academy,
             Griffin and Botto


Anthony R. Picarello, Jr., Esquire (ARGUED)
Derek L. Gaubatz, Esquire
Jared N. Leland, Esquire
The Becket Fund for Religious Liberty
1350 Connecticut Avenue, N.W.
Suite 605
Washington, D.C. 20036

Stephen E. Jenkins, Esquire
Ashby & Geddes
222 Delaware Avenue
17th Floor
P. O. Box 1150
Wilmington, DE 19899

             Counsel for Appellees-Defendants Saltarelli
             and Diocese



                              2
                 OPINION OF THE COURT



ROTH, Circuit Judge:

       Michele Curay-Cramer, a teacher at the Ursuline
Academy, a private, Catholic school, was fired after she signed
her name to a pro-choice advertisement in the local newspaper.
Curay-Cramer asserts both that signing the advertisement was
conduct protected by 42 U.S.C. § 2000e-3(a) and that she was
fired for conduct less egregious under Catholic doctrine than
conduct of male employees who were treated less harshly. The
District Court granted defendants’ motions to dismiss under
FED. R. CIV. P. 12(b)(6). We will affirm but, in doing so, we do
not adopt all of the District Court’s reasoning.

I. Factual Background

       Ursuline Academy is a private, non-diocesan Catholic
school in Wilmington, Delaware. Students range in grade from
pre-kindergarten to high school. Ursuline provides college
preparatory education from a Catholic perspective. In June of
2001, Curay-Cramer began teaching four English classes and a
Religion class to 7th and 8th graders at Ursuline. Eighteen
months later, on the thirtieth anniversary of the Supreme Court’s
decision in Roe v. Wade, 410 U.S. 113 (1973), she lent her
name to an advertisement in support of that decision, signed by
some six hundred individuals and organizations.              The
advertisement, which ran in the News-Journal, a newspaper of
general circulation in Wilmington, Delaware, stated:

       Thirty years ago today, the U.S. Supreme Court in
       Roe v. Wade guaranteed a woman’s right to make
       her own reproductive choices. That right is under

                               3
       attack. We, the undersigned individuals and
       organizations, reaffirm our commitment to
       protecting that right. We believe that each
       woman should be able to continue to make her
       own reproductive choices, guided by her
       conscience, ethical beliefs, medical advice and
       personal circumstances. We urge all Delawareans
       and elected officials at every level to be vigilant
       in the fight to ensure that women now and in the
       future have the right to choose.

Following the text were the names of the individuals endorsing
it, including Curay-Cramer.

       On the day the advertisement appeared, Curay-Cramer
was called into the office of Barbara C. Griffin, the President of
Ursuline. Griffin informed Curay-Cramer that the school was
deeply troubled by her public support of a position inimical to
accepted Catholic doctrine and that Griffin was considering
terminating Curay-Cramer’s employment with the school. In
response, Curay-Cramer asserted her right to protest without
retribution the school’s stance on abortion. She also informed
Griffin that she had volunteered for Planned Parenthood and
distributed pamphlets that she believed contained important
information related to reproductive options.

      Curay-Cramer alleges that Griffin then consulted with
Bishop Michael Saltarelli, who ratified the school’s decision to
terminate her.

       A few days later, Curay-Cramer was again summoned to
Griffin’s office. She was informed that Ursuline had decided to
terminate her employment but was offering her an opportunity
to resign. She was given the weekend to think it over. The
following week, Curay-Cramer met with Griffin and the head of
Ursuline’s Religion Department. Curay-Cramer told them that
it was illegal to fire her for opposing the school’s illegal
employment practices. She also asserted that she had never said
or done anything in class that was contrary to Ursuline’s
pedagogic philosophy. Griffin responded that Curay-Cramer
could keep her job if she immediately and publicly recanted her

                                4
support of the advertisement and stated unequivocally that she
was pro-life. Curay-Cramer refused. She was then fired.

II. Procedural History

        After she was fired, Curay-Cramer filed suit against
Ursuline, Griffin, Jerry Botto (Ursuline’s Director of
Communications), Bishop Saltarelli, and the Diocese of
Wilmington. Curay-Cramer included six counts in her
Complaint: three federal claims and three state-law claims. Of
the federal claims, Count One focuses on the advertisement in
the News-Journal and alleges that it was a violation of Title VII
and the Pregnancy Discrimination Act (PDA) to fire Curay-
Cramer for opposing Ursuline’s illegal employment practice of
firing anyone who has or contemplates an abortion.1 Count Two
is based on the advertisement and associated advocacy for, and
association with, persons protected by Title VII and the PDA.
In Count Three, Curay-Cramer avers that she was fired because
she is a woman and that similarly situated male employees have
been treated less harshly for substantially similar conduct.

        The District Court granted defendants’ motions to
dismiss under FED. R. CIV. P. 12(b)(6) after concluding that
applying Title VII and the PDA would raise serious
constitutional questions and that Congress did not manifest a
clear legislative intent that Title VII be applied in a case like
Curay-Cramer’s. See NLRB v. Catholic Bishop of Chi., 440
U.S. 490 (1979). The District Court then dismissed Curay-
Cramer’s state-law claims under 28 U.S.C. § 1367(c)(3).

III. Jurisdiction and Standard of Review

       The District Court exercised original jurisdiction
pursuant to 42 U.S.C. §§ 2000e et seq. (Title VII), as amended
by the PDA, 42 U.S.C. § 2000e(k). We have appellate
jurisdiction to review the final order of dismissal under 28


       1
       Curay-Cramer alleges that Ursuline has such a policy
and practice; for purposes of reviewing this motion to dismiss,
we accept that assertion.

                               5
U.S.C. § 1291.

       We exercise plenary review of a district court’s dismissal
under FED. R. CIV. P. 12(b)(6). Alexander v. Whitman, 114 F.3d
1392, 1397 (3d Cir. 1997). We affirm where a party has failed
to state a claim upon which relief can be granted. Conley
v.Gibson, 355 U.S. 41, 45-46 (1957). Although we must accept
as true all well-pled allegations, Jordan v. Fox, Rothschild,
O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994), we need
not credit the non-movant’s conclusions of law or unreasonable
factual inferences. Morse v. Lower Merion Sch. Dist., 132 F.3d
902, 906 (3d Cir. 1997). Finally, we can affirm on any basis
appearing in the record. Bernitsky v. United States, 620 F.2d
948, 950 (3d Cir. 1980).

IV. Discussion

       Title VII provides, in relevant part:

       It shall be an unlawful employment practice for an
       employer–

       (1) 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 such individual’s race, color, religion,
       sex, or national origin; or

       (2) to limit, segregate, or classify his employees
       or applicants for employment in any way which
       would deprive or tend to deprive any individual of
       employment opportunities or otherwise adversely
       affect his status as an employee, because of such
       individual’s race, color, religion, sex, or national
       origin.

42 U.S.C. § 2000e-2(a).

       The PDA, 42 U.S.C. § 2000e(k), provides:


                                6
       The terms “because of sex” or “on the basis of
       sex” include, but are not limited to, because of or
       on the basis of pregnancy, childbirth, or related
       medical conditions; and women affected by
       pregnancy, childbirth, or related medical
       conditions shall be treated the same for all
       employment-related purposes . . ..

       This subsection shall not require an employer to
       pay for health insurance benefits for abortion,
       except where the life of the mother would be
       endangered if the fetus were carried to term, or
       except where medical complications have arisen
       from an abortion.

Id.

      Title VII also contains a provision that protects
employees from retaliation: “It

shall be an unlawful employment practice for an employer to
discriminate against any of his employees . . . because he has
opposed any practice made an unlawful employment practice by
this subchapter . . ..” 42 U.S.C. § 2000e-3(a).2

       Curay-Cramer contends that Title VII’s opposition clause
protects any employee who has had an abortion, who
contemplates having an abortion, or who supports the rights of
women who do so. This Court has not ruled on this issue.3


       2
        It is axiomatic that an employer is free to terminate an
employee provided that the employee is not engaged in
protected conduct.
       3
        We note that the Sixth Circuit Court of Appeals has held
that “an employer may not discriminate against a woman
employee because ‘she has exercised her right to have an
abortion.’” Turic v. Holland Hospitality, Inc., 85 F.3d 1211,
1214 (6th Cir. 1996) (quoting H.R. REP. NO. 95-1786 (1978)
(Conf. Rep.), reprinted in 1978 U.S.C.C.A.N. 4749, 4765-66).

                               7
However, even if we were to assume that properly structured
opposition and association activity, directed toward an
employer’s policy or practice of discriminating against women
who have or contemplate abortions, can fall within the ambit of

Title VII, still we conclude that Curay-Cramer has failed to state
a claim in Counts One and Two.

A. Counts One and Two

        In considering Counts One and Two, we will not adopt
the District Court’s determination that applying Title VII and the
PDA raises substantial constitutional questions because at a
more basic level we have determined that Curay-Cramer fails to
state a claim. We conclude that Curay-Cramer did not engage
in protected activity when she signed a pro-choice advertisement
that did not mention employment, employers, pregnancy
discrimination, or even gender discrimination. We will,
therefore, affirm the District Court’s dismissal of the first two
counts of her Complaint but not for the reasons adopted by the
District Court.

       Title VII’s anti-retaliation provisions protect employees
who participate in Title VII’s statutory processes or who
otherwise oppose employment practices made illegal by Title
VII. Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253,
259-60 (4th Cir. 1998). Defendants Ursuline, the Diocese, and
Bishop Saltarelli argue, however, that basic pro-choice advocacy
does not constitute opposition to an illegal employment practice.
We agree.



Extending that principle, the Sixth Circuit further held that an
employer “cannot take adverse employment action against a
female employee for merely thinking about what she has a right
to do.” Id. Likewise, the Equal Employment Opportunity
Commission (EEOC) has taken the position that it is an
unlawful employment practice to fire a woman “because she is
pregnant or has had an abortion.” 29 C.F.R. pt. 1604, App.
(1986).

                                8
         First, case law has established that opposition to an
illegal employment practice must identify the employer and the
practice – if not specifically, at least by context. For example,
in Barber v. CSX Distribution Services, 68 F.3d 694, 701-02 (3d
Cir. 1995), we held that a letter to an employer’s Human
Resources Department was not protected activity because it did
not specifically complain about age discrimination.4 The letter,
which stated that the plaintiff felt that the position was given to
a less qualified person, was too vague to constitute opposition
to an unlawful employment practice of his employer because it
neither “explicitly or implicitly” alleged that a protected
characteristic was the basis for the adverse employment action.
Id. at 702. A general complaint of unfair treatment is
insufficient to establish protected activity under Title VII. Id.;
Dupont-Lauren v. Schneider (USA), Inc., 994 F. Supp. 802, 823
(S.D. Tex. 1998) (“Vagueness as to the nature of the grievance
. . . prevents a protest from qualifying as a protected activity.”).


        Moreover, there is no hard and fast rule as to whether the
conduct in a given case is protected. Barber, 68 F.3d at 702.
Instead, we evaluate the facts of each case in light of the
statutory language and legislative intent. We have previously
recognized that protected opposition conduct includes more than
formal filing of charges before the EEOC. Id. Indeed, in Barber
we cited with approval the Second Circuit’s language in Sumner
v. United States Postal Service, 899 F.2d 203, 209 (2d Cir.
1990), in which the court held that Title VII’s opposition clause
is triggered by formal EEOC proceedings “as well [as] informal
protests of discriminatory employment practices, including
making complaints to management, writing critical letters to
customers, protesting against discrimination by industry or


       4
        We have previously recognized that Title VII and the
Age Discrimination in Employment Act (“ADEA”), 29 U.S.C.
§ 621 et seq. (2000), are comparable in many contexts. As such,
we refer to ADEA cases throughout this opinion. See Geary v.
Visitation of the Blessed Virgin Mary Parish Sch., 7 F.3d 324,
331 (3d Cir. 1993) (comparing the retaliation provisions of Title
VII and the ADEA).

                                 9
society in general, and expressing support for co-workers who
have filed formal charges.” (citations omitted). When deciding
whether a plaintiff has engaged in opposition conduct, we look
to the message being conveyed rather than the means of
conveyance. Barber, 68 F.3d at 702.

       Our review of the jurisprudence in this area convinces us
that Curay-Cramer’s conduct in this case is not deserving of
protection under the opposition language of Title VII. Despite
the wide net cast by Sumner, we are not aware of any court that
has found public protests or expressions of belief to be protected
conduct absent some perceptible connection to the employer’s
alleged illegal employment practice. See Dupont-Lauren, 994
F. Supp. at 823 (holding that employee’s statement was too
vague to constitute protected opposition activity where it did not
apprize the employer of any practice viewed as discriminatory
or accuse anyone at the employing company of engaging in
discrimination). As the Ninth Circuit made clear in EEOC v.
Crown Zellerbach Corp., it must be possible to discern from the
context of the statement that the employee opposes an unlawful
employment practice. 720 F.2d 1008, 1012-13 (9th Cir. 1983)
(holding that employee engaged in protected activity by issuing
a letter accusing his employer of “racism” and
“discrimination”).

       In this context, public manifestations of disagreement
with illegal employment practices can be protected under the
opposition clause. For example, an employee’s appearance on
the news magazine “60 Minutes” was assumed to be protected
conduct where the entire show was about allegations of sexual
harassment and discrimination within the Bureau of Alcohol,
Tobacco and Firearms. Hoffman v. Rubin, 193 F.3d 959, 963
(8th Cir. 1999). Similarly, in Copeland v. Rosen, a district court
held that an employee, who attended a public meeting of
students and parents organized for the express purpose of
challenging the allegedly discriminatory termination of a black
teacher, engaged in protected opposition activity. 38 F. Supp.
2d 298, 306-07 (S.D.N.Y. 1999).

       A closer case is Payne v. McLemore’s Wholesale &
Retail Stores, 654 F.2d 1130 (5th Cir. 1981). There, the Fifth

                               10
Circuit upheld a district court’s conclusion that boycotting and
picketing activity was protected conduct in the face of a defense
assertion that the boycotting was merely directed toward
inequality in public accommodation. Id. at 1136-37. However,
the record in that case supported the District Court’s conclusion
that the civil rights organization responsible for the picketing,
which occurred directly outside the stores of the employer, was
directed at the employer’s allegedly discriminatory employment
practice of withholding certain jobs from black employees. Id.
An owner of the store even conceded that the reason for the
boycott was that “[t]hey claimed that uh the merchants in
Winnsboro were unfair to uh blacks.” Id. at 1137.

        The News-Journal advertisement stated that the right to
abortion was “under attack” and urged “Delawareans and
elected officials at every level to be vigilant in the fight to
ensure that women now and in the future have the right to
choose.” This language cannot be construed as opposition to
Ursuline’s alleged policy and practice of terminating women
who have or contemplate abortions. The advertisement did not
mention gender discrimination, pregnancy discrimination, or
employment practices. It did not mention Ursuline or any other
schools or employers.        To turn pro-choice advocacy,
unconnected to employment practices, into conduct protected by
Title VII would inappropriately stretch the concept of protected
activity.

        As written and under the circumstances in which it
appeared, the advertisement simply is not protected opposition
activity. Moreover, there is no context from which one could
reasonably conclude that Curay-Cramer’s signature at the
bottom of the advertisement was in response to Ursuline’s
alleged illegal policy or practice. Instead, context suggests that
the advertisement was a public endorsement of the Supreme
Court’s decision in Roe v. Wade, running, as it did, on the
thirtieth anniversary of that decision. Having failed to mention
discrimination in any way, let alone employment discrimination,
and absent any context from which it is reasonable to conclude
that the advertisement was directed at employers generally or at
Ursuline specifically, Curay-Cramer did not engage in activity
protected by Title VII when she lent her name to the pro-choice

                               11
position articulated by the advertisement.5

        Perhaps realizing the tenuous nature of her claim of
opposition activity based solely on public pro-choice advocacy,
Curay-Cramer attempts to bolster her assertion that she engaged
in protected conduct by averring that, once she was called into
Griffin’s office, she made it clear that it would be wrong to
terminate her for opposing practices of her employer that
interfere with the legal right to an abortion. But as the Supreme
Court has held, an employer need not refrain from carrying out
a previously reached employment decision because an employee
subsequently claims to be engaging in protected activity. Clark
County Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001). Curay-
Cramer’s Complaint makes it clear that Griffin contemplated
firing her from the moment Griffin read the advertisement. The
case law provides that an employee may not insulate herself
from termination by covering herself with the cloak of Title
VII’s opposition protections after committing non-protected
conduct that was the basis for the decision to terminate. If
subsequent conduct could prevent an employer from following
up on an earlier decision to terminate, employers would be
placed in a judicial straight-jacket not contemplated by


       5
        Although not directly on point, we believe that Lamb-
Bowman v. Delaware State University, 152 F. Supp. 2d 553 (D.
Del. 2001), provides a useful comparison. In that case, the
District Court held that a female basketball coach did not engage
in protected opposition activity by communicating her
displeasure with defendant’s perceived violation of Title IX,
which prohibits schools from providing disparate levels of
funding to men’s and women’s sports programs. Id. at 560. The
plaintiff in Lamb-Bowman was asking the court to infer that
public protest against unfair treatment toward female student
athletes was, by implication, an allegation that the school was
involved in unlawful gender discrimination in employment. The
factual setting is distinguishable. Nevertheless, it is relevant that
the District Court was reticent to find protected activity based on
general protests of gender inequality. As with the situation here,
public advocacy on issues impacting women does not always
evoke the protection of Title VII’s opposition clause.

                                 12
Congress. See id. at 272; Cotton v. Cracker Barrel Old Country
Store, Inc., 434 F.3d 1227, 1232 (11th Cir. 2006); Cichon v.
Exelon Generation Co., 401 F.3d 803, 811 (7th Cir. 2005)
(applying the Breeden principle in the context of the Fair Labor
Standards Act, 29 U.S.C. §§ 201 et seq.).

        Curay-Cramer’s subjective state of mind is also irrelevant
for purposes of determining whether she engaged in protected
conduct. Curay-Cramer claims that by lending her name to the
advertisement she communicated four “messages and ideas” to
Ursuline: (1) it did not have the right to discriminate against
women; (2) it should start a dialog concerning the rights of
pregnant women; (3) it should “stop being so certain of the
correctness of its position,” which interferes with a woman’s
right to choose; and (4) “[i]t should end policies which interfere
with access to or advocacy of abortion.” That Curay-Cramer
intended to send these messages by signing the advertisement
does not change the fact that the advertisement itself, viewed
objectively, does not achieve that goal. It is the objective
message conveyed, not the subjective intent of the person
sending the message, that is determinative.

B. Count Three

       Turning to Count Three, we agree with the District
Court’s determination that applying the PDA and Title VII
raises a substantial constitutional question under the First
Amendment’s Religion Clauses. Curay-Cramer contends that
she was fired because she is a woman and that similarly situated
male employees have been treated less harshly for substantially
similar conduct. In order to assess this claim of the relative
harshness of penalties for “similar conduct,” we would have to
measure the degree of severity of various violations of Church
doctrine.

       In determining whether there is a substantial
constitutional question, we are guided by the Supreme Court’s
analytical framework in Catholic Bishop. 440 U.S. at 490. In
Catholic Bishop, the Supreme Court was faced with the question
whether the National Labor Relations Act should be read to
grant the National Labor Relations Board jurisdiction over

                               13
religious schools. 440 U.S. 490 (1979). In holding that the
statute did not confer such jurisdiction, the Court set forth an
analytical process to determine whether a statute presents “a
significant risk that the First Amendment will be infringed.” Id.
at 502. First, a court must determine whether applying the
statute raises “serious constitutional questions.” Id. at 501.
Second, if it does, a court must discern whether there is a “clear
expression of an affirmative intention” on the part of Congress
to have the act apply in the situation presented. Id. at 504.
Finally, if such an affirmative intention is shown, the court will
determine whether the statute violates the Constitution as
applied to the facts presented in the case. Id. at 507. The
purpose of this test is to avoid addressing constitutional
questions absent clear legislative intent to apply the statute in a
way that raises a significant risk of infringing constitutional
rights. Geary, 7 F.3d at 324.

      Turning to the Catholic Bishop test, first we must
determine whether applying Title VII to a religious employer6


       6
        Curay-Cramer argues that Ursuline is not a religious
employer because its corporate documents do not say that it is
organized for a religious purpose and because it does not make
its employees sign “Cardinal’s Clauses”–contracts that provide
that an employer is organized for a religious purpose and
expressly grant the employer the right to terminate an employee
that does not follow the tenets of the faith. Whether a school is
legally diocesan or independent does not control our inquiry.

       It is the suffusion of religion into the curriculum
       and the mandate of the faculty to infuse the
       students with the religious values of a religious
       creed which create the conflict with the Religion
       Clauses and not the vesting of legal title or the
       responsibility of operation.

NLRB v. Bishop Ford Cent. Catholic High Sch., 623 F.2d 818,
823 (2d Cir. 1980). The very allegations of Curay-Cramer’s
Complaint show that Ursuline is a religious school for purposes
of our inquiry. She asserts that it is functionally controlled by

                                14
under these circumstances raises serious constitutional
questions. See, e.g., Rayburn v. Gen. Conference of Seventh-
Day Adventists, 772 F.2d 1164, 1166 (4th Cir. 1985) (finding
that applying Title VII’s prohibitions against gender and racial
discrimination to a church that declined to hire a female pastor
raised serious constitutional questions). In Catholic Bishop, the
Supreme Court noted that the resolution of fair labor practice
claims “in many instances will necessarily involve inquiry into
the good faith of the position asserted by the clergy-
administrators and its relationship to the school’s mission.” 440
U.S. at 502. The “very process of inquiry” can impinge on
rights guaranteed by the First Amendment. Id.

        We have had occasion to consider the constitutional
issues raised by applying Title VII to religious employers in
similar contexts. For example, in Little, 929 F.2d 944, 950 (3d
Cir. 1991), we concluded that applying Title VII to a claim of
religious discrimination by an employee terminated from a
Catholic school for marrying in violation of canon law would
raise serious constitutional questions.

       [I]nquiry into the employer’s religious mission is
       not only likely, but inevitable, because the
       specific claim is that the employee’s beliefs or
       practices make her unfit to advance that mission.
       It is difficult to imagine an area of the
       employment relationship less fit for scrutiny by
       the secular courts. Even if the employer
       ultimately prevails, the process of review itself
       might be excessive entanglement.

Id. at 949. While it is true that the plaintiff in Little styled her
allegation as one of religious discrimination whereas Curay-
Cramer’s third Count alleges gender discrimination, we do not


the Diocese and Bishop Saltarelli, that it would be devastated
financially if the Diocese withdrew its support, and, most
importantly, that its teachers understand that they are always to
indoctrinate Ursuline’s students with the views of the Catholic
Church.

                                15
believe the difference is significant in terms of whether serious
constitutional questions are raised by applying Title VII.
Comparing Curay-Cramer to other Ursuline employees who
have committed “offenses” against Catholic doctrine would
require us to engage in just the type of analysis specifically
foreclosed by Little.

        In Geary, decided just two years after Little, we held that
applying the ADEA to a religious school did not present a
significant risk of violating the First Amendment because a
court would only conduct a “limited inquiry” into whether the
school discriminated against the plaintiff on the basis of age or
whether the proffered non-discriminatory reason for firing the
plaintiff, in that case marrying in violation of canon law, was the
actual reason or a pretext. 7 F.3d at 328-29. We noted that as
long as the plaintiff did not challenge the validity or plausibility
of the religious doctrine said to support her dismissal, but only
questioned whether it was the actual motivation, excessive
entanglement questions were not raised. Id. at 330.; DeMarco
v. Holy Cross High Sch., 4 F.3d 166, 170-71 (2d Cir. 1993).
Thus, with Geary in mind, we note that many claims of
discrimination against a religious employer under Title VII will
not raise serious constitutional questions.

        Here, however, with the allegation that male employees,
who committed substantially similar offenses, were treated
differently than was Curay-Cramer, we would have to assess the
relative severity of offenses. This exercise would violate the
First Amendment. See Hall v. Baptist Catholic Archdiocese of
Indianapolis, 215 F.3d 618, 626-27 (6th Cir. 2000) (“If a
particular religious community wishes to differentiate between
the severity of violating two tenets of its faith, it is not the
province of the federal courts to say that such differentiation is
discriminatory and therefore warrants Title VII liability.”)
(quoting Hall v. Baptist Mem’l Health Care Corp., 27 F. Supp.
2d 1029, 1039-40 (W.D. Tenn. 1998) (citing Lynch v. Donnelly,
465 U.S. 668, 672 (1984)) (stating that the Religion Clauses
were designed “to prevent, as far as possible, the intrusion of
either [the church or the state] into the precincts of the other.”).
In this case, Curay-Cramer alleges that similarly situated male
employees were treated differently, but points only to men who

                                16
are Jewish or oppose the war in Iraq.7

       As the District Court noted, absent an allegation that a
male employee publicly attacked the Church’s position on
abortion, evaluating the comparators

       would require an analysis of Catholic doctrine to
       determine whether the decision to employ a
       teacher of a different religious background
       constitutes an affront to the Catholic faith and, if
       so, whether it is an affront of at least the same
       seriousness as the Plaintiff’s repudiation of

Catholic doctrine on when life begins and the responsibility to
preserve life in utero.

Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 344
F. Supp. 2d 923, 934 (D. Del. 2004).

      We conclude that if we were to consider whether being
Jewish or opposing the war in Iraq is as serious a challenge to
Church doctrine as is promoting a woman’s right to abortion, we
would infringe upon the First Amendment Religion clauses. See




       7
        At oral argument counsel for plaintiff conceded that he
was not aware of any male employees at Ursuline who engaged
in public pro-choice advocacy. Under FED. R. CIV. P. 11, a
party must have a reasonable basis to believe that a factual
assertion has evidentiary support. To support her claim that
similarly situated males were treated differently by Ursuline,
Curay-Cramer cites examples that, while perhaps meeting the
statutory requirements for similarity, are not sufficiently similar
to avoid evaluating the relative severity of violations of Church
doctrine. Because Curay-Cramer had an obligation to support
her factual assertion, we must assume that the omission of an
allegation involving a male employee who was terminated for
public pro-choice advocacy is an admission that no such male
exists.

                                17
Hall, 215 F.3d at 626-27.8 Thus, having reached the conclusion
that it would raise serious constitutional questions to apply Title
VII to this case, we turn to the second prong of Catholic Bishop:
whether Congress has manifested an intent to have Title VII
apply to teachers in religious schools in this context. 440 U.S.
at 504.

        We note that the courts that have addressed this issue
have held that, under most circumstances, Title VII’s
substantive provisions, with the exception of the prohibition
against religious discrimination, apply to religious employers.
Little, 929 F.2d at 947-48. Nevertheless, we do not assume that
Title VII applies in all contexts and under all fact scenarios.

       The legislative history of Title VII shows that Congress
intended to exclude religious employers from the provisions
prohibiting religious discrimination. The original verison of the
1964 Civil Rights Act, H.R. 7152, excluded religious employers
from all of Title VII. H.R. REP. NO. 88-914 (1963) reprinted in
EEOC Legislative History of Title VII and XI of Civil Rights
Act of 1964 at 2010 (1968) (“1964 Legis. Hist.”); 1964
U.S.C.C.A.N. 2355. This exemption was redrafted to apply the
bulk of Title VII’s provisions to religious employers but still
permitted them to employ individuals of a particular religion.
1964 Legis. Hist. at 3001, 3004, 3050. This version passed both
the House and Senate. EEOC v. Pac. Press Publ’g Ass’n, 676
F.2d 1272, 1276-77 (9th Cir. 1982). In 1972, the issue of
exemptions for religious employers arose again. The result was
the expansion of the exemption to provide that it would not be


       8
        Curay-Cramer also alleges “alternative” bases to support
Count Three. Two of these follow her allegations in Counts
One and Two. As a third alternative basis, she alleges that she
was a qualified Religion teacher who was replaced by a male.
Leaving aside that she admits she was an English teacher who
taught a single Religion class and does not aver that she was
replaced by a male English teacher, we note that discrimination
challenges to a religious school’s selection of full-time religion
teachers are fraught with constitutional pitfalls. Little, 929 F.2d
at 949.

                                18
an unlawful employment practice for a religious school to hire
employees based on their religious beliefs. Id. at 1277.


       The exemption now provides:


       Notwithstanding any other provision of this
       subchapter, . . . it shall not be an unlawful
       employment practice for a school . . . to hire and
       employ employees of a particular religion if such
       school . . . 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 is directed toward the
       propagation of a particular religion.


42 U.S.C. § 2000e-2(e)(2).


        Nevertheless, there are circumstances in which Congress’
intention to apply Title VII to religious employers is less clear.
These cases tend to involve the interplay of Title VII’s
exemption for religious employers and the application of Title
VII’s remaining substantive provisions. The conflict is
presented because the text and legislative history of § 2000e-
2(e)(2) show that “Congress intended the explicit exemptions of
Title VII to enable religious organizations to create and maintain
communities composed solely of individuals faithful to their
doctrinal practices, whether or not every individual plays a
direct role in the organizations religious activities.” Little, 929
F.2d at 951.


        In this context, there are circumstances, like those
presented here, where a religious institution’s ability to “create
and maintain communities composed solely of individuals
faithful to their doctrinal practices” will be jeopardized by a
plaintiff’s claim of gender discrimination. Id.; EEOC v. Miss.


                                19
College, 626 F.2d 477, 485 (5th Cir. 1980) (holding that a
plaintiff is barred from proceeding with a Title VII suit if a
religious employer presents “convincing evidence” that the
employment practice was based on a religious preference).


       We distinguish this case from one in which a plaintiff
avers that truly comparable employees were treated differently
following substantially similar conduct. In such a case, neither
the concerns of Little nor the interests of the exemption for
religious employers from religious discrimination claims are
raised. Requiring a religious employer to explain why it has
treated two employees who have committed essentially the same
offense differently poses no threat to the employer’s ability to
create and maintain communities of the faithful. See DeMarco,
4 F.3d at 171 (providing that permissible pretext cases can
involve the question “whether the rule applied to the plaintiff
has been applied uniformly . . ..”).


       Were we, however, to require Ursuline to treat Jewish
males or males who oppose the war in Iraq the same as a
Catholic female who publicly advocates pro-choice positions,
we would be meddling in matters related to a religious
organization’s ability to define the parameters of what
constitutes orthodoxy. See Little, 929 F.2d at 948 (expressing
concern that applying Title VII to a religious employer’s
decision to terminate an employee who remarried in violation of
canon law would force the court “to determine what constitutes
‘the official teachings, doctrine or laws of the Roman Catholic
Church’ and whether plaintiff has ‘rejected’ them.”); Hall, 215
F.3d at 626-27. Even assuming such a result is not expressly
barred by 42 U.S.C. § 2000e-2(e)(2), the existence of that
provision and our interpretation of its scope prevent us from
finding a clear expression of an affirmative intention on the part
of Congress to have Title VII apply when its application would
involve the court in evaluating violations of Church doctrine.
Thus, we will not apply Title VII to Curay-Cramer’s claim
because Congress has not demonstrated a clear expression of an
affirmative intention that we do so in situations where it is
impossible to avoid inquiry into a religious employer’s religious


                               20
mission or the plausibility of its religious justification for an
employment decision. Little, 929 F.2d at 949; Geary, 7 F.3d at
330.
        We caution religious employers against over-reading the
impact of our holding. It is by no means the case that all claims
of gender discrimination against religious employers are
impermissible. Indeed, as we have discussed above, many such
claims may not raise serious constitutional questions. If a
religious employer does not offer a religious justification for an
adverse employment action against a non-ministerial employee,
it is unlikely that serious constitutional questions will be raised
by applying Title VII. See Lukaszewski v. Nazareth Hosp., 764
F. Supp. 57, 60 (E.D. Pa. 1991) (finding that a plaintiff’s ADEA
claim did not raise serious constitutional questions in part
because the religious employer’s nondiscriminatory reason for
terminating the employee (using racial epithets), was a
legitimate, nondiscriminatory reason for a secular employer to
fire an employee); Weissman, 38 F.3d at 1045 (noting, in
declining to find serious constitutional questions by applying the
ADEA in that case, that “the Temple failed to allege deficiencies
in [] arguably religious duties or to assert any other religious
reasons for [the plaintiff’s] termination.”).


       Finally, we do not hold that a plaintiff seeking to
establish pretext by a religious employer need establish that the
comparators engaged in precisely the same conduct as that said
to support the adverse employment action against the plaintiff.
Whether the proffered comparable conduct is sufficiently similar
to avoid raising substantial constitutional questions must be
judged on a case-by-case basis. Suffice it to say that under the
circumstances presented here, resolving this case would require
the District Court to compare the relative severity of violations
of religious doctrine. Congress has not manifested an
affirmative intention to apply the statute to a religious employer
in the face of such constitutional difficulties. Curay-Cramer,
thus, does not present in Count Three a viable claim under Title
VII.




                                21
V. Conclusion


       We conclude that Curay-Cramer has failed to state a
claim upon which relief can be granted with respect to the first
two counts of her Complaint because signing the pro-choice
advertisement was not protected conduct under Title VII’s
opposition clause. Curay-Cramer’s third count fails because
Congress has not clearly expressed an affirmative intention to
apply Title VII to a claim, as asserted here, against a religious
employer in the present context. Therefore, we will affirm the
judgment of the District Court dismissing the first three counts
of Curay-Cramer’s Complaint under FED. R. CIV. P. 12(b)(6)
and dismissing without prejudice her state law claims.




                               22
