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TURNER v. PARSONS

May 30, 1985

REVEREND JOSEPH TURNER
v.
MR. J.L.G. PARSONS, MEDICAL CENTER DIRECTOR



The opinion of the court was delivered by: KELLY

 KELLY, J.

 Presently before this court are cross motions for summary judgment filed by defendant J.L.G. Parsons, Medical Center Director, Veterans Administration Hospital, and plaintiff, Reverend Joseph Turner. Further, plaintiff has made a separate motion to amend his complaint.

 Plaintiff, in his original complaint, alleges that he was denied employment by the Veterans Hospital, an agency of the executive department of the United States. Plaintiff has applied for a position as chaplain in the hospital. Plaintiff, a Catholic priest, had the endorsement of his superior within his particular religious society within the Catholic Church. However, plaintiff asserts that he was denied consideration because the Military Vicariate, a central agency of the Catholic Church, did not grant its endorsement. This endorsement is required by Veterans Administration regulations. Furthermore, plaintiff alleges that he was denied consideration because of his age, being 53 at the time of his application. Therefore, plaintiff's claims are that he was denied employment because of his religious faith and his age.

 Plaintiff claims that other candidates for a chaplaincy in other denominations are required only to secure the endorsement of their immediate superior, while the Catholic Church requires approval by the Military Vicariate. To remedy those alleged wrongs, plaintiff prays for relief in the form of an injunction against the Veterans Administration from discriminating between religious endorsements, to provide equal opportunity to Catholic chaplains, and to provide backpay to plaintiff.

 Plaintiff now seeks to amend his complaint, bringing in new defendants. The new defendants would be Harry Walters, the Administrator of the Veterans Administration, the Military Vicariate, a religious corporation organized under the laws of the State of New York, and Archbishop Joseph Ryan, president of the Military Vicariate. The allegations in the proposed amended complaint, while generally the same as the original complaint, are framed to also shed light on purported wrongs committed by the Military Vicariate. Plaintiff contends that the Military Vicariate wrongfully interfered in the hiring practice of the United States Government.

 Once a responsive pleading is served, a party must seek leave of court to amend his pleading; leave should be freely given. Fed. R. Civ. P. 15. However, leave need not be given where the amended pleading may be defeated by a motion to dismiss or a motion for summary judgment. Collyard v. Washington Capitals, 477 F. Supp. 1247, 1249 (D. Minn. 1979); Bernstein v. National Liberty International Corp., 407 F. Supp. 709, 714-715 (E.D. Pa. 1976). Because of this, I will first address defendant's motion for summary judgment.

 Defendant asserts that plaintiff was not eligible for consideration since he failed to meet the minimum qualifications required by the Veterans Administration for a chaplain's position. The Manual of the Veterans Administration (Manual), M-2 Part II (February 23, 1966), defendant's Exhibit A, *fn1" sets forth the criteria for employment. Specifically, Section 1.06 of the Manual states in pertinent part:

 
1.06 SELECTION AND APPOINTMENT
 
a. To be eligible for appointment as a chaplain in the VA, a clergyman must meet certain basic minimum qualifications (see app. 17A, DM&S Supp., MP-5, pt. I):
 
(1) Must be a citizen of the United States;
 
(2) Must be an ordained clergyman;
 
(3) Must have the bachelor of arts plus the bachelor of divinity degrees or bachelor of sacred theology (or their equivalents in terms of semester hours of undergraduate and graduate study), from an accredited college, university or theological institution;
 
(4) Must have had at least 3 years of experience after ordination, in which the principal duty was as a clergyman after completion of ...

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