APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 77-1424)
Before Seitz, Chief Judge, Aldisert, Circuit Judge, and Huyett, District Judge.*fn*
Plaintiff Charles R. Gavin (Gavin), a former service operator for defendant People's Natural Gas Company (PNGC), has appealed from an Order of the District Court for the Western District of Pennsylvania granting PNGC's motion for summary judgment. Gavin instituted this employment discrimination case under Title VII of the Civil Rights Act of 1964, As amended, 42 U.S.C. § 2000e Et seq. (1976), after he had been discharged because of his refusal to fulfill one of his job assignments. Claiming that this refusal was religiously mandated, Gavin alleged, Inter alia, that he had been denied reasonable accommodation to his religion as required by Section 701(j) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e(j) (Section 701(j)).*fn1 In granting summary judgment, the district court stated that "proceeding to trial on the facts of this case would necessarily lead to an entanglement of this court with religious beliefs," Gavin v. Peoples Natural Gas Co., 464 F. Supp. 622, 632 (W.D.Pa.1979), and thus held that Section 701(j) was unconstitutional as applied. The questions presented are whether summary judgment was properly granted, and whether on the facts of this case Section 701(j) is constitutional in light of the Establishment Clause. Because we believe that summary judgment should not have been granted, we shall not consider the constitutional issue. We vacate the order of the district court and remand for further proceedings.
Gavin, who is a member of the Jehovah's Witnesses, was employed by PNGC as a service operator. As part of his work, he was required to raise and lower the American flag. Gavin refused to do so, asserting that this act violated his religious convictions. As a result, he was discharged from his employment.
Gavin then pursued his claim of unlawful discharge through union grievance proceedings, challenging the validity of his termination pursuant to provisions of the collective bargaining contract between his union and PNGC. At the final grievance meeting held on June 14, 1979, PNGC offered to reinstate Gavin with full back pay and to reassign him to the job of gas man rather than service operator.*fn2 Gavin refused this offer, however, and as a result the union decided not to appeal the grievance to arbitration. Gavin also filed an unfair labor practice charge against PNGC with the National Labor Relations Board, but this charge was withdrawn at the direction of the Pittsburgh Regional Office of the Board after Gavin refused the reinstatement offer. Likewise, the Unemployment Compensation Board rejected Gavin's claim in light of that refusal. Gavin had also filed a complaint with the Pennsylvania Human Relations Commission (PHRC), which dismissed his complaint after determining that his religion did not mandate his refusal to raise and lower the flag. An appeal from the PHRC decision to the Commonwealth Court of Pennsylvania was dismissed. The Equal Employment Opportunity Commission also considered Gavin's case and issued a Right to Sue letter after determining that PNGC had violated Title VII. Gavin filed suit in the District Court for the Western District of Pennsylvania within 90 days of the issuance of that letter, alleging both racial and religious discrimination.
The district court dismissed the racial discrimination claim, noting that it was without jurisdiction to determine that issue in light of plaintiff's failure to raise it before the EEOC. 464 F. Supp. at 623-24. The court then considered PNGC's summary judgment motion, presented on affidavits as well as the record of the various agency proceedings. The court found that a ruling on whether PNGC had properly accommodated Gavin's religious beliefs as required by Section 701(j) would necessitate a judicial determination of the tenets of Gavin's religion,*fn3 thereby involving the court in an entanglement with religion in violation of the Establishment Clause. Id. at 626-33. Summary judgment was granted on the ground that application of Section 701(j) would lead to an unconstitutional entanglement with religion. Id. at 633.
While we recognize the importance of the constitutional question posed by this appeal, we leave its resolution for another day. The general rule, based upon overriding policy considerations, is to avoid constitutional issues unless essential to the decision of a case. E. g. Hagans v. Lavine, 415 U.S. 528, 543, 94 S. Ct. 1372, 39 L. Ed. 2d 577 (1974); King v. Smith, 392 U.S. 309, 88 S. Ct. 2128, 20 L. Ed. 2d 1118 (1968); Ashwander v. TVA, 297 U.S. 288, 346-47, 56 S. Ct. 466, 80 L. Ed. 688 (1935) (Brandeis, J., concurring); Burton v. United States, 196 U.S. 283, 295, 25 S. Ct. 243, 49 L. Ed. 482 (1905). Determination of the constitutional issue is unnecessary in this appeal because we find that summary judgment should not have been granted.
Summary judgment is inappropriate if there remains in the case a genuine issue as to any material fact. Fed.R.Civ.P. 56(c). Here PNGC is charged with failing to accommodate to Gavin's religious beliefs in violation of Section 701(j). This raises the constitutional issue only if the court is required to determine whether the beliefs which PNGC allegedly disregarded were religious. Thus the constitutional issue presupposes lack of accommodation. However, the question of whether PNGC accommodated to Gavin's beliefs, assuming Arguendo they are religious for Section 701(j) purposes, was never resolved. This question involves a material fact because if PNGC did indeed accommodate to Gavin's beliefs as required by Title VII, no Title VII violation concerning Gavin's religion has been established.*fn4 Accommodation remains a genuine issue because the district court made no findings, and the parties have not stipulated, as to whether PNGC's offer of reinstatement as a gas man made to Gavin on June 14, 1979 constituted compliance with the provisions of Title VII which mandate accommodation of religion. We note that Gavin had fulfilled the duties of gas man for some period before being assigned work as a service operator, and thus we can assume that the responsibilities of a gas man do not conflict with his religious beliefs. However, other factors may have made the reinstatement offer less acceptable than appears from the current state of the record. Absent findings as to the nature and effect of that offer, a determination of whether PNGC complied with Title VII is not possible. Thus a trial is necessary to determine whether PNGC complied with Title VII by accommodating to Gavin's beliefs, regardless of their nature, through its offer of reinstatement as gas man.*fn5
Accordingly the judgment of the district court is vacated and the case is remanded to the district court for ...