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


3-15-2007

Doe v. Abington Friends Sch
Precedential or Non-Precedential: Precedential

Docket No. 05-1405




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http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1386


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                                     PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT


                  No. 05-1405


    BENJAMIN DOE, a Minor, by his Parents,
 Joseph and Julie Doe; JOSEPH DOE, Individually
and on Their Own Behalf; JULIE DOE, Individually
            and On Their Own Behalf,

                        v.

      ABINGTON FRIENDS SCHOOL;
           PHILIP VINOGRADOV;
     JODI PICKERING; RUSSELL SHAW

      Benjamin Doe; Joseph Doe; Julie Doe,
                  Appellants



   Appeal from the United States District Court
     for the Eastern District of Pennsylvania
      (D.C. Civil Action No. 04-cv-04647)
    District Judge: Honorable Juan R. Sanchez


           Argued September 28, 2006
         Before: McKEE and AMBRO, Circuit Judges
                  RESTANI,* Chief Judge

               (Opinion filed: March 15, 2007)

Carl W. Hittinger, Esquire (Argued)
Piper
1650 Market Street
One Liberty Place, 50 th Floor
Philadelphia, PA 19103

Neil C. Schur, Esquire
Stevens & Lee, P.C.
1818 Market Street, 29th Floor
Philadelphia, PA 19103

        Counsel for Appellants

J. Scott Kramer, Esquire (Argued)
David E. Loder, Esquire
Amanda M. Leadbetter, Esquire
Duane Morris LLP
30 South 17th Street
Philadelphia, PA 19103

        Counsel for Appellees


    *
     Honorable Jane A. Restani, Chief Judge, United States
Court of International Trade, sitting by designation.

                                 2
                OPINION OF THE COURT


AMBRO, Circuit Judge

       Joseph and Julie Doe,1 on behalf of themselves and their
minor son, Benjamin, filed suit against Abington Friends School
(“Abington”) and three of its employees. Their suit, grounded
for federal purposes in the Americans with Disabilities Act
(“ADA”), see Pub. L. No. 101-336, 104 Stat. 327 (1990)
(codified at 42 U.S.C. §§ 12101–213), alleges that Abington did
not adequately accommodate Benjamin’s diagnosed Attention
Deficit Disorder and related learning disabilities.2 It claims as
well that the individual defendants subjected Benjamin to a
discriminatory environment complete with public humiliation,
improper physical discipline, and an orchestrated campaign to


    1
      The last name is a pseudonym to protect the plaintiffs’
interest in medical confidentiality.
    2
     The Does’ complaint contains six counts. Count I is the
only federal-law claim and is brought under Title III of the
ADA.       See 104 Stat. 353–65 (codified at 42 U.S.C.
§§ 12181–89). Counts II–VI allege state-law causes of action,
including breach of contract, breach of the implied covenant of
good faith and fair dealing, negligent infliction of emotional
distress, assault, and battery.

                               3
force his withdrawal from the school.

        The District Court granted summary judgment for the
defendants, ruling that the ADA’s exemption for religious
organizations applied to bar the Does’ claim. It made this
decision on the basis of a single affidavit submitted by the
defendants and before allowing the Does any discovery into the
factual basis for applying the religious exemption. We conclude
that the Court, in so doing, contravened Federal Rule of Civil
Procedure 56(f), and we thus vacate and remand.

                   I. Factual Background

       Established in 1697, Abington is “the oldest primary and
secondary educational institution in the United States that has
operated continuously at the same location.” It is affiliated with
the Abington Monthly Meeting of the Religious Society of
Friends (Quakers). Determining the extent of that affiliation
forms the background of this appeal. The Does assert in
paragraphs 20 and 21 of the Complaint that

       [a]lthough [Abington] purports to embrace tenets
       of the Quaker religion in its educational program,
       [it] is not a religious entity, a religious
       organization, or an entity controlled by a religious
       organization. [Abington] does not conduct itself
       or hold itself out as a religious organization or an
       entity controlled by a religious organization.

                                4
This allegation is significant because the ADA provides that its
provisions “shall not apply . . . to religious organizations or
entities controlled by religious organizations, including places
of worship.” 42 U.S.C. § 12187. If Abington is a religious
organization (or controlled by one), then the Does’ ADA claim
should be dismissed and, likely, their remaining claims sent to
state court.

         The Does filed this action in early October 2004. On
November 1st, at a hearing meant to explore the Does’
confidentiality concerns, Abington instead raised the issue of the
ADA exemption for religious organizations and noted the
school’s long religious history. Counsel for the Does responded
that, while Abington may have been a religious institution in the
past, it has strayed from its religious foundation and, therefore,
is not eligible for the ADA exemption. After some discussion,
the Court declined to proceed too far without formal briefing
and mentioned that there “may have to [be] some limited
discovery on this issue.” It expressed a desire to “set out a
schedule so th[e] issue could be developed factually and
properly presented before me so that I could decide it before we
go any further.” Rather than allow the Does any discovery,
however, Abington filed on November 24th a motion to dismiss
or, in the alternative, for summary judgment on Count I, arguing
that it is exempt from the requirements of the ADA.

      Along with its motion, Abington submitted the affidavit
of Thomas W. Price, Abington’s Head of School. Price referred

                                5
to Abington Friends School and the Abington Monthly Meeting
as “virtually one and the same.” He said that Abington is “under
the care of Abington Monthly Meeting” and referenced a trust
formed for the benefit of both the School and the Meeting.
According to Price, “[t]he Meeting owns the grounds and
buildings and oversees the School through its standing
committees, including the School Committee[,] . . . three-
quarters of whom must be members of the Abington Monthly
Meeting.” Further, “[t]he School Committee . . . is responsible
for the financial health of the School, for the fulfillment of its
mission (fidelity to Quaker principles and testimonies), and the
selection and supervision of the Head of School.” Price
reported that “[t]he day to day operation of [Abington] is
delegated by the School Committee to the Head of School and
other personnel.” In addition, Price described various religious
aspects of the Abington’s operation, saying it “is guided by
Quaker values, principles and testimonies. Teachers and
administrators participate annually in professional development
activities focused on keeping the School’s Quaker spirit vital
and relevant.” Abington students “participate in weekly
Meeting for Worship.” Moreover, “the key Quaker testimonies
(equality, peaceful resolution of conflict, stewardship,
community) are fully integrated into the curriculum at every
level,” a process overseen by a “Quakerism Coordinator” in
each division of the school. In summary, Price observed that
“[a]n Abington Friends School education is so fully an
experience drawn from Quaker values and traditions, it is
difficult to identify many practices, rituals or activities that are

                                 6
not rooted in Quaker faith and practice.”

       In response to Abington’s motion and Thomas Price’s
affidavit, the Does moved pursuant to Federal Rule of Civil
Procedure 56(f) for a continuance so that discovery could take
place on whether the ADA’s religious exemption properly
applied to Abington.3 The motion was accompanied by an
affidavit from Carl W. Hittinger, the Does’ attorney, which
argued that Abington’s motion was “premature” because the
case was “in its infancy” and the Does had not had “an
opportunity to conduct the full and fair discovery needed to


  3
    Rule 56(f) provides: “Should it appear from the affidavits of
a party opposing the motion that the party cannot for reasons
stated present by affidavit facts essential to justify the party’s
opposition, the court may refuse the application for judgment or
may order a continuance to permit affidavits to be obtained or
depositions to be taken or discovery to be had or may make such
other order as is just.” F ED. R. C IV. P. 56(f). We have
repeatedly noted the need for a party moving under Rule 56(f)
to accompany the motion with a supporting affidavit detailing
“what particular information is sought; how, if uncovered, it
would preclude summary judgment; and why it has not
previously been obtained.” Dowling v. City of Philadelphia, 855
F.2d 136, 140 (3d Cir. 1988); see also St. Surin v. V.I. Daily
News, Inc., 21 F.3d 1309, 1313–14 (3d Cir. 1994); Radich v.
Goode, 886 F.2d 1391, 1393–94 (3d Cir. 1989); Lunderstadt v.
Colafella, 885 F.2d 66, 70–71 (3d Cir. 1989); Hancock Indus.
v. Schaeffer, 811 F.2d 225, 229–30 (3d Cir. 1987).

                                7
respond properly and fairly.” Hittinger specifically identified
six topics on which discovery was necessary:

       !      The ownership of [Abington], including
              both tangible and real property;

       !      The control of [Abington], including the
              control over day-to-day operations, policy,
              finances, curriculum, and its advising
              system;

       !      The Quaker Religion as . . . presented in
              curriculum and activities at [Abington];

       !      The religious affiliation of the [Abington]
              student body, faculty, staff, and School
              Committee;

       !      Any requirement(s) that [Abington]
              students, faculty, staff or School
              Committee members follow or subscribe
              to the tenets of the Quaker religion and any
              “training” faculty or staff receive
              regarding the Quaker Religion; and

       !      The [Abington] “School Committee,” its
              composition, activities and alleged control
              over [Abington].

                               8
To accomplish this discovery, Hittinger requested the
depositions of Thomas Price, the three individual defendants,
Abington’s corporate designee, and “any other witnesses
identified in those depositions with personal knowledge of
relevant facts.” In addition, the Does already had submitted
several requests for production of documents relating to the
same topics addressed in their Rule 56(f) motion, but Abington
did not respond.

       The District Court heard oral argument on Abington’s
motion in January 2005. Shortly thereafter, the Court issued a
five-page order construing Abington’s motion as one for
summary judgment and granted it. The order rejected the Does’
argument that “control is a factual test,” but relied exclusively
on Thomas Price’s affidavit to conclude that the “facts” as
recited therein supported the conclusion that Abington is, “as a
matter of law, a religious organization” as well as “controlled by
a religious organization.” The Court ruled, therefore, that
Abington is exempt from the ADA and dismissed Count I. It
also declined to exercise supplemental jurisdiction over the
remaining state-law counts under 28 U.S.C. § 1367 and
dismissed them as well. The Does appealed that same day.4


  4
   The District Court had jurisdiction under 28 U.S.C. §§ 1331
and 1367. We have jurisdiction under 28 U.S.C. § 1291. Prior
to ruling on Abington’s motion for summary judgment, the
Court did not rule on the Does’ Rule 56(f) motion; but after the
Does appealed and the District Court lost jurisdiction over the

                                9
                         II. Discussion

                    A. Standards of Review

        Our review of a district court’s grant of summary
judgment is plenary. St. Surin, 21 F.3d at 1313. Summary
judgment is proper when there is “no genuine issue as to any
material fact and . . . the moving party is entitled to a judgment
as a matter of law.” F ED. R. C IV. P. 56(c). A genuine issue is
present when a reasonable trier of fact, viewing all of the record
evidence, could rationally find in favor of the non-moving party
in light of his burden of proof. Celotex Corp. v. Catrett, 477
U.S. 317, 322–26 (1986); Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248–52 (1986). The non-moving party may not
merely deny the allegations in the moving party’s pleadings;
instead he must show where in the record there exists a genuine
dispute over a material fact. Celotex, 477 U.S. at 322–26. The
substantive law identifies which facts are material. Anderson v.
Liberty Lobby, 477 U.S. at 248.

       “When an order granting summary judgment is attacked
as premature, we review a district court’s refusal to delay action
for an abuse of discretion.” St. Surin, 21 F.3d at 1313 (citing
Radich, 886 F.2d at 1393); see also Sames v. Gable, 732 F.2d
49, 51 (3d Cir. 1984).



case, it denied the Does’ Rule 56(f) motion as moot.

                               10
                           B. Analysis

        As any practicing attorney can attest, federal litigation
revolves around the generous and wide-ranging discovery
provided by the Federal Rules of Civil Procedure. See F ED. R.
C IV. P. 26(a)(1) (initial disclosures); 26(a)(2) (disclosure of
expert testimony); 26(a)(3) (pretrial disclosures); 30 (oral
depositions); 31 (written depositions); 33 (interrogatories); 34
(entry onto land and production of documents and things); 35
(physical and mental examinations); 36 (requests for admission).
These mechanisms were made necessary by the revolutionary
switch from “fact pleading” to “notice pleading” that was
embodied by the modern rules. Stephen N. Subrin, Fishing
Expeditions Allowed: The Historical Background of the 1938
Federal Discovery Rules, 39 B.C. L. R EV. 691, 711 (1998)
(quoting C HARLES E. C LARK, H ANDBOOK OF THE L AW OF C ODE
P LEADING 41, 567–72 (2d ed. 1947) (“[Discovery mechanisms]
are a necessary supplement to the system of simplified
pleading.”)); see Swierkiewicz v. Sorema N.A., 534 U.S. 506,
512–13 (2002); Charles E. Clark, Fundamental Changes
Effected by the New Federal Rules, 15 T ENN. L. R EV. 551,
564–68 (1939); Edson R. Sunderland, The New Federal Rules,
45 W. V A. L.Q. 5, 10–12, 19–27 (1938). Rather than endless
pleadings “served back and forth ad infinitum until the last issue
of fact was tracked down and identified through the medium of
declarations, bills, pleas, replications, rejoinders, surrejoinders,
etc.” that had characterized common law litigation, see Abraham
Rotwein, Pleading and Practice Under the New Federal

                                11
Rules—A Survey and Comparison, 8 B ROOK. L. R EV. 188, 195
(1939), modern civil procedure instead “relies on liberal
discovery rules and summary judgment motions to define
disputed facts and issues and to dispose of unmeritorious
claims,” Swierkiewicz, 534 U.S. at 512.

        As a result, it is well established that a court “is obliged
to give a party opposing summary judgment an adequate
opportunity to obtain discovery.” Dowling, 855 F.2d at 139.
This is necessary because, by its very nature, the summary
judgment process presupposes the existence of an adequate
record. See F ED. R. C IV. P. 56(c) (instructing that summary
judgment be decided on the basis of the “pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any”); Anderson, 477 U.S. at 257 (explaining
the non-moving party’s burden at summary judgment rests on
the assumption that the party “had a full opportunity to conduct
discovery”). In this vein, the Supreme Court has explained that
“[a]ny potential problem with . . . premature [summary
judgment] motions can be adequately dealt with under Rule
56(f).” Celotex, 477 U.S. at 326. Therefore, if the non-moving
party believes that additional discovery is necessary, the proper
course is to file a motion pursuant to Rule 56(f). Dowling, 855
F.2d at 139.

        “District courts usually grant properly filed Rule 56(f)
motions as a matter of course.” St. Surin, 21 F.3d at 1314
(internal quotation marks omitted). This is particularly so when

                                12
there are discovery requests outstanding or relevant facts are
under the control of the moving party. See Ward v. United
States, 471 F.2d 667, 670 (3d Cir. 1973); see also Sames, 732
F.2d at 51–52; Costlow v. United States, 552 F.2d 560, 562–64
(3d Cir. 1977). If discovery is incomplete in any way material
to a pending summary judgment motion, a district court is
justified in not granting the motion. See Miller v. Beneficial
Mgmt. Corp., 977 F.2d 834, 845–46 (3d Cir. 1992). And
whatever its decision, it is “improper” for a district court to rule
on summary judgment without first ruling on a pending Rule
56(f) motion. St. Surin, 21 F.3d at 1315.

       On the basis of a single affidavit offered by the movant,
the District Court here ruled that Abington is, “as a matter of
law,” a religious organization (or controlled by one) for
purposes of the ADA.5 Whether Abington qualifies for the
ADA’s religious exemption is a mixed question of law and fact,
the answer to which depends, of course, on the existence of a


   5
    The District Court’s order does not distinguish between the
two prongs of the ADA’s religious exemption. The single
paragraph analyzing whether Abington qualifies for the
exemption begins by stating that “[t]he evidence on the record
. . . shows that [Abington] is controlled by a religious
institution.” It then recites the various assertions contained in
Price’s affidavit before concluding that “[t]hese facts are
sufficient to conclude [that Abington] is, as a matter of law, a
religious organization.”

                                13
record sufficient to decide it. The ADA’s exemption can apply
only if Abington (1) is a religious organization or (2) is
controlled by a religious organization. See 42 U.S.C. § 12187.
No court of appeals has yet fully examined the ADA’s religious
exemption, and the undeveloped state of this record makes us
reticent to do so now.6 Whatever the scope of that exemption,
though, the District Court here needed to allow the parties to
develop the record as to potentially relevant facts. The extent of
discovery, of course, is within the Court’s discretion, but the




     6
      We leave it to the District Court (aided by counsel) to
consider this issue in the first instance. The parties cite, inter
alia: (1) Department of Justice regulations that expound on the
ADA’s religious exemption, 28 C.F.R. pt. 36, App. B; (2)
opinion letters interpreting those regulations; (3) various district
court cases applying the exemption, Woods v. Wills, 400 F.
Supp. 2d 1145, 1159–62 (E.D. Mo. 2005); Marshall v. Sisters of
the Holy Family of Nazareth, 399 F. Supp. 2d 597, 605–07 (E.D.
Pa. 2005); White v. Denver Seminary, 157 F. Supp. 2d 1171,
1173–74 (D. Colo. 2001); and (4) other areas of the law that
examine concepts of religion (e.g., the First Amendment religion
clauses) and control (e.g., agency and respondeat superior).
Without commenting on our eventual approval or disapproval of
them, these resources appear to us to be a reasonable starting
point in helping to decide the issue. See also E.E.O.C. v.
Kamehameha Schs./Bishop Estate, 990 F.2d 458 (9th Cir. 1993)
(discussing the scope of Title VII’s exemption for religious
schools).

                                14
circumstances of this case require more than was given.7

       The Does’ Rule 56(f) motion identified six areas of
inquiry that, under any definition of the ADA’s religious
exemption, are relevant to deciding whether Abington is a
religious organization or controlled by one. As to Abington’s
status as a religious organization itself, the Does sought
information on any training in the Quaker religion that faculty
and staff received; the religious make-up of the students, faculty,
and staff; and how the Quaker religion is represented in the
school’s curriculum. As to Abington’s being controlled by a
religious organization, the proposed areas included Abington’s
ownership and the day-to-day oversight of its “operations,
policy, finances, curriculum, and . . . advising.” The Does
proposed the deposition of Price, each of the three individual
defendants, and Abington’s corporate designee. Additionally,
the Does had earlier requested of Abington—but had not
received—documents that may have shed light on the issue.8

    7
     The Does properly note that in each of the district court
cases to have ruled on this issue, see supra note 6, the docket
sheets and opinions make clear that the courts did so only after
sufficient discovery had taken place.
   8
     At oral argument, Abington questioned why the Does did
not file an affidavit of their own, detailing those facts within
their knowledge that might indicate Abington is not a religious
organization or controlled by one. We will not fault the Does
for failing to provide information principally within the control

                                15
       Since the Supreme Court removed the summary judgment
procedure from disfavored status in the 1980s, some have
opined that the pendulum has swung too far in the opposite
direction. See, e.g., Arthur R. Miller, The Pretrial Rush to
Judgment, 78 N.Y.U. L. R EV. 982 (2003); Patricia M. Wald,
Summary Judgment at Sixty, 76 T EX. L. R EV. 1897 (1998). We
need not wade into that debate, though, to conclude that the
Does should have been allowed some measure of discovery
before summary judgment was entered against them. It may be
that, after whatever discovery the District Court chooses to
allow on remand, Abington does qualify for the ADA’s religious
exemption. One of the oldest primary and secondary schools in
the country, long known for its Quaker heritage, superficially
seems to be a strong candidate.9 But discovery digs subsurface
and may unearth facts that tend to support the contrary
conclusion. Because the Does were not given an opportunity to
marshal facts in aid of their argument, we vacate the District
Court’s grant of summary judgment and remand this case for
further proceedings.




of Abington and which they could only have known second-
hand.
    9
      Abington does not argue that being held to the ADA’s
mandates would violate its First Amendment right to the free
exercise of religion. See, e.g., Starkman v. Evans, 198 F.3d 173
(5th Cir. 1999).

                              16
