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Geary v. Visitation of Blessed Virgin Mary Parish School

filed: October 6, 1993.

MARIE GEARY, APPELLANT
v.
VISITATION OF THE BLESSED VIRGIN MARY PARISH SCHOOL; FRANCIS J. CLEMINS, REVEREND MONSIGNOR, INDIVIDUALLY AND AS PASTOR OF VISITATION OF THE BLESSED VIRGIN MARY CHURCH; ARCHDIOCESE OF PHILADELPHIA



Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Civil No. 92-05769).

Before: Mansmann, Greenberg and Lewis, Circuit Judges.

Author: Mansmann

Opinion OF THE COURT

MANSMANN, Circuit Judge.

We must determine whether the Age Discrimination in Employment Act applies to protect a lay teacher in a church-operated elementary school. The district court concluded broadly that it does not. We disagree and conclude that it may. We caution, however, that when a religious employer contends that a religious tenet or practice -- not illegal discrimination -- motivated a challenged employment action, the ADEA will apply only so long as the plaintiff does not challenge the validity of the doctrine or practice and asks no more than whether the proffered religious reason actually motivated the employment action.

Here the plaintiff argues that the proffered religious reason did not actually motivate her termination. We will affirm the judgment against her in part because in her opposition to summary judgment, she did not raise any issue of fact to suggest that her employer had other than a religious motive. Nonetheless, she did raise a genuine issue of material fact as to whether her employer retaliated against her (by canceling her insurance) in violation of the ADEA (a separate count of her complaint). Thus we will vacate the judgment with respect to the retaliation claim and remand for further proceedings.

I.

For purposes of the motion for summary judgment in the district court, the historical facts were straightforward and were not in dispute. The appellee, Visitation of the Blessed Virgin Mary Parish School, dismissed Marie Geary after she turned 50 and after her twenty-ninth year as a lay teacher there. Geary had previously received favorable reviews and asserts that she would have been Visitation School's highest paid lay teacher. In her stead, Visitation School hired a younger, lower-paid teacher.

As the reason for dismissal, Visitation School stated that Geary had violated Church doctrine by marrying a divorced man. Geary does not dispute that she violated Church doctrine, but she claims that this reason is pretext, and she argues that her age and salary motivated the dismissal.

After Geary instituted an EEOC action, Visitation School canceled her health coverage and indicated that the cancellation was "necessitated" by Geary's legal action.*fn1 The EEOC found that the dismissal did not violate the ADEA but that the retaliatory cancellation did.

Following the EEOC determination, Geary filed a civil action in the United States District Court for the Eastern District of Pennsylvania. She alleged violations of the ADEA, intentional infliction of emotional distress, and wrongful discharge. The district court held broadly that the ADEA does not apply to religious schools. The court also held that Geary's state claims for emotional distress and wrongful discharge were without merit. The court then granted summary judgment in favor of the defendants.*fn2 Geary appealed.

We have jurisdiction over the final decision of the district court, 28 U.S.C. § 1291, in which federal subject matter jurisdiction was premised on a federal question and on supplemental claims. 28 U.S.C. §§ 1331, 1367.

We exercise plenary review of the district court's grant of summary judgment, and we apply the same test the district court should have applied initially. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 732 (1977).

II.

The ADEA prohibits age discrimination and makes it unlawful to retaliate against an employee who litigates an age discrimination claim. See 29 U.S.C. § 623(a), (d).

We determine whether the First Amendment prohibits application of the ADEA to a religious school by following the inquiry set forth in N.L.R.B. v. Catholic Bishop of Chicago, 440 U.S. 490, 59 L. Ed. 2d 533, 99 S. Ct. 1313 (1979). In Catholic Bishop, Catholic high schools challenged the National Labor Relations Board's exercise of jurisdiction over lay faculty members of religious schools. In addressing that challenge, the Court invoked the interpretive rule "that an Act of Congress ought not be construed to violate the Constitution if any other possible construction remains available." 440 U.S. at 500. To implement the rule, the Court first "made a narrow inquiry whether the exercise of the Board's jurisdiction presents a significant risk that the First Amendment [would] be infringed." Id. at 502 (emphasis added).

Upon making that inquiry, the Court determined that two aspects of the Board's exercise of jurisdiction would create a significant risk of excessive government entanglement in religion.*fn3 First, the Court referred to a situation in which a religious school, charged with an unfair labor practice, responds with an assertion that religion mandates the challenged action:

The resolution of such charges by the Board, 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 religious mission. It is not only the Conclusions that may be reached by the Board which may impinge in rights guaranteed by the ...


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