Petruska v. Gannon University

Opinions of the United

2006 Decisions States Court of Appeals

for the Third Circuit

9-6-2006

Petruska v. Gannon Univ

Precedential or Non-Precedential: Precedential

Docket No. 05-1222

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Precedential

IN THE UNITED STATES COURT

OF APPEALS

FOR THE THIRD CIRCUIT

Case No: 05-1222

LYNETTE M. PETRUSKA,

Appellant

v.

GANNON UNIVERSITY; THE BOARD OF TRUSTEES

OF

GANNON UNIVERSITY; WILLIAM I. ALFORD, II;

ROBERT H. ALLSHOUSE; JOSEPH F. ALLISON;

MICHAEL P. ALLISON, REV.; JAMES A. BALDAUF;

L. SCOTT BARNARD; GEORGE J. BEHRINGER;

ARNOLD E. BERGQUIST; LAWRENCE E. BRANDT,

REV. MSGR.; ROBERT L. BRUGGER, REV. MSGR.;

DONALD M. CARLSON; DANIEL C. CARNEVAL, D.O.;

STEPHANIE DOMITROVICH, HON.; THOMAS L.

DOOLIN;

JAMES J. DURATZ; ANTOINE M. GARIBALDI;

THOMAS

C. GUELCHER; WILLIAM M. HILBERT, SR.; BRIAN

J. JACKMAN; JAMES W. KEIM, JR.; MARY RITA

KUHN, SR., SSJ; THOMAS J. LOFTUS; ANNE C.

MCCALLION; JOSEPH T. MESSINA; MICHAEL J.

NUTTALL; JOHN E. PAGANIE; DENISE ILLIG

ROBISON;

JAMES J. RUTKOWSKI, JR.; JAMES A. SCHAFFNER;

HELEN M. SCHILLING, M.D., D.D.S.; JOHN M.

SCHULTZ, VERY REV.; ROBERT J. SMITH, REV.

MSGR.; LAWRENCE T. SPEICE, REV. MSGR.;

WILLIAM C. SPRINGER; JAMES G. TOOHEY; DONALD

W. TRAUTMAN, BISHOP; ANASTASIA VALIMONT, SR.

SSJ; RICARDA VINCENT, SR. SSJ; MELVIN

WITHERSPOON;

ALL OTHER KNOWN AND UNKNOWN MEMBERS OF

THE BOARD

OF TRUSTEES OF GANNON UNIVERSITY DURING

THE

TENURE OF DONALD W. TRAUTMAN, as members of

the

Board of Trustees of Gannon University; DAVID

RUBINO, MSGR., in their individual and official

capacities; NICHOLAS ROUCH, REV., in their

individual and official capacities

On Appeal from the United States District Court

For the Western District of Pennsylvania

(D.C. Civ. Action No. 04-80)

District Judge: The Honorable Sean J. McLaughlin

Argued August 16, 2006 *

*

This case was originally argued on October 20, 2005,

before Judges Smith, Becker, and Nygaard. On May 23, 2006,

an opinion by a majority of the original panel was filed,

affirming in part, reversing in part, and remanding the case for

further proceedings. Judge Smith filed a dissenting opinion on

BEFORE: SMITH, COWEN, and GREENBERG

(Filed: September 6, 2006 )

C. John Pleban [Argued]

Pleban & Associates

2010 South Big Bend Boulevard

St. Louis, Missouri 63117

Counsel for Appellant

Evan C. Rudert [Argued]

Elderkin, Martin, Kelly & Messina

150 East 8th Street

Erie, Pennsylvania 16501

Arthur D. Martinucci [Argued]

Frank L. Kroto, Jr.

Quinn, Buseck, Leemhuis, Toohey & Kroto

2222 West Grandview Boulevard

Erie, Pennsylvania 16506-4508

Counsel for Appellees

the same day. Judge Becker, who authored the majority opinion,

died on May 19, 2006, after the case had been circulated to the

full court, but before the opinions were filed. Appellants

petitioned for rehearing en banc or, in the alternative, rehearing

by a reconstituted panel. Because of this chain of events, the

Court granted the Appellants’ request for rehearing by a

reconstituted panel. Judge Nygaard subsequently recused

himself from the reconstituted panel. Judges Cowen and

Greenberg were selected at random to replace Judges Becker

and Nygaard.

3

Phillip J. Murren

Ball, Murren & Connell

2303 Market Street

Camp Hill, Pennsylvania 17011

Counsel for Amicus-Appellee

Stephen W. Fitschen

The National Legal Foundation

2224 Virginia Beach Boulevard, Suite 204

Virginia Beach, Virginia 23454

Counsel for Amicus-Appellee

OPINION OF THE COURT

SMITH, Circuit Judge:

Former University Chaplain Lynette Petruska appeals an

order from the United States District Court for the Western

District of Pennsylvania dismissing her federal employment

discrimination and state law claims against Gannon University

(“Gannon” or “the University”), the private Catholic diocesan

college that employed her from July 16, 1997 until October 15,

2002. The District Court dismissed Petruska’s complaint for

lack of jurisdiction pursuant to Federal Rule of Civil Procedure

12(b)(1), holding that the “ministerial exception”–a doctrine

rooted in the First Amendment–barred her claims.

This Court has not previously ruled on the viability or the

scope of the ministerial exception. Today, we join seven of our

sister circuits in adopting the exception and hold that it applies

to any claim, the resolution of which would limit a religious

institution’s right to choose who will perform particular spiritual

functions.

4

Petruska’s Title VII discrimination and retaliation claims,

as well as her state civil conspiracy and negligent retention and

supervision claims, are barred by the ministerial exception

insofar as they implicate a church’s right to select its ministers

under the Free Exercise Clause. Because resolution of

Petruska’s fraudulent misrepresentation and breach of contract

claims do not limit Gannon’s free exercise rights, and because

an evaluation of these claims would not violate the

Establishment Clause, they are not precluded by the exception.

Nevertheless, Petruska has failed to plead fraud with

particularity as required by Federal Rule of Civil Procedure 9(b).

Accordingly, we will affirm the District Court’s order

dismissing Petruska’s Title VII discrimination and retaliation

claims, as well as her state civil conspiracy, negligent retention

and supervision, and fraudulent misrepresentation claims. For

the reasons set forth below, we will remand her breach of

contract claim for further consideration by the District Court.

I. Factual and Procedural Background

For purposes of a motion to dismiss, we must accept as

true–as did the District Court–the plaintiff’s factual allegations.

See Mortensen v. First Fed. Sav. & Loan, 549 F.2d 884, 891 (3d

Cir. 1977) (explaining the standard of review for Rule 12(b)(1)

and Rule 12(b)(6) motions).1 Accordingly, the facts set forth

1

As discussed infra, Gannon’s motion to dismiss was

framed in the alternative. Although we conclude that it is most

properly construed as a Rule 12(b)(6) motion, we note that the

standard is the same when considering a facial attack under Rule

12(b)(1) or a motion to dismiss for failure to state a claim under

Rule 12(b)(6). Mortensen, 549 F.2d at 891.

5

below are drawn from Petruska’s First Amended Complaint.

Gannon University is a private Catholic diocesan

college located in Erie, Pennsylvania. Gannon hired Petruska

as the University’s Director of Social Concerns on July 16,

1997. At that time, Reverend Nicholas Rouch was the

University Chaplain. When Rouch left to study in Rome for a

period of three years, he was promised that he could resume

his position as chaplain when he returned. In his absence, the

University appointed an interim chaplain, who held the

position until June of 1999. When the interim chaplain

resigned, then-President Monsignor David Rubino promoted

Petruska to permanent University Chaplain on July 1, 1999,

with the advice and consent of Bishop Trautman, the Chair of

Gannon’s Board of Trustees (the “Board”). Petruska was the

first female in Gannon’s history to serve in that position. As

such, and cognizant of the promise made to Rouch, Petruska

specifically sought assurances from Rubino that she would

not simply be replaced when Rouch returned or another

qualified male became available. Rubino assured her that

future decisions regarding her tenure as chaplain would be

based solely on her performance, not her gender.

Several months after her appointment, in March of

2000, Rubino was forced to take a leave of absence when

allegations surfaced that he was having a sexual affair with a

female subordinate. Thereafter, another female employee

accused Rubino of sexual harassment, and Petruska was

instrumental in bringing this claim to the attention of Bishop

Trautman and then-Provost Dr. Thomas Ostrowski. Rubino

formally resigned in May of 2000, and Ostrowski was

appointed Acting President. Following Rubino’s resignation,

6

and at Bishop Trautman’s behest, Gannon began a campaign

to cover-up Rubino’s misconduct. Petruska strenuously–and

vocally–objected to the University’s response.2

In July of 2000, Ostrowski met with Bishop Trautman, as

well as Rouch, who had by then returned from Rome. Bishop

Trautman notified Ostrowski that he had created a new

position–Vice-President for Mission and Ministry–and that he

had appointed Rouch to fill it. The position was created without

input from any other University officials and did not include a

job description. At that meeting, the Bishop informed

Ostrowski that he was to remove Petruska as University

Chaplain. When Ostrowski refused, Bishop Trautman instructed

2

Petruska’s activism with respect to gender and

harassment-related issues was not limited to her role in the

Rubino affair. In 1998, while she was still the Director of Social

Concerns, Petruska served on the University’s Sexual

Harassment Committee. At the time of her appointment to that

Committee, the University was in the process of revising its

sexual harassment policy, and several of Gannon’s lawyers had

advocated limiting the time period in which grievances could be

filed. Petruska opposed this proposal, and her view ultimately

prevailed.

Moreover, after she became chaplain and subsequent to

Rubino’s resignation, Petruska was appointed as Chair of

Gannon’s Institutional Integrity Committee. In this position, she

was integrally involved in preparing a report for Gannon’s

Middle States accreditation, which criticized the University’s

policies and procedures related to discrimination and

harassment. Despite a request from Gannon’s President, the

Committee refused to modify portions of its report which were

critical of the University.

7

him to restructure the Chaplain’s Division by placing it under

the leadership of Rouch. Ostrowski also refused to take part in

the proposed restructuring.

On July 28, 2000, Ostrowski told Petruska about his

meeting with Rouch and Bishop Trautman. He explained the

proposed restructuring and asked Petruska how she would

respond if the Chaplain’s Office were placed under Rouch’s

leadership. Petruska indicated that she would challenge this

decision, and Ostrowski conceded that the proposed action was

being taken on the basis of her gender. Although Ostrowski

stated that he would try to prevent the restructuring and

Petruska’s removal, he later explained that he could delay, but

not prevent, these events.

On October 2, 2000, Petruska signed a revised contract,

which was equivalent to those of the other vice-presidents at

Gannon. Her contract was thereby extended until June 30, 2003.

From March to May of 2001, Ostrowski repeatedly suggested

that Petruska consider accepting another position at Gannon,

because Bishop Trautman and Reverend Rouch would never let

her remain as University Chaplain. Ostrowski was removed

from consideration in the presidential search on April 19, 2001.

On May 21, 2001, Dr. Antoine Garibaldi was appointed

President of Gannon and he began his tenure on July 1, 2001.

After Garibaldi became President, some of Petruska’s

responsibilities were reassigned and she was instructed to limit

her comments at University events.

On August 21, 2002, Garibaldi notified Petruska that he

had decided to restructure and informed her that she would be

8

removed from the President’s Staff and that the Chaplain’s

Division would report to Rouch. Garibaldi did not present the

restructuring proposal to the University’s President’s Council as

required by Gannon’s Governance Manual. Petruska informed

Garibaldi that she knew that this action was being taken against

her because of her gender and told him that she would be open

to a “buy out” of her contract. Although Garibaldi indicated that

he would be willing to discuss the restructuring, he later

declined to discuss the matter with Petruska. After meeting with

Garibaldi, Petruska orally requested information about filing a

discrimination grievance with the University Review Council,

but was notified in a letter dated August 28, 2002 that the

University Review Council was not a proper forum because her

complaint was directed against the President and Chair of the

Board.

On September 30, 2002, Rouch called Petruska and

indicated that he wanted to discuss the restructuring. She

declined to meet with him until she resolved her concerns about

the University’s discriminatory conduct with Garibaldi. That

same day, Petruska sent an e-mail to Garibaldi, stating that she

intended to speak publicly about the questionable motives

underlying the restructuring, but noted that she was willing to

meet with him to discuss how all parties could “move forward”

if Ricarda Vincent, the president of her community, was

permitted to attend. Garibaldi did not respond. Petruska later

learned that, during a telephone conversation between Bishop

Trautman and Vincent, the Bishop “yelled” at Vincent. The

next day, October 1, Vincent told Petruska that she could not

take any action against Gannon, nor was she to make any

comment about Gannon’s discriminatory conduct. Faculty,

staff, and students were informed of Petruska’s “demotion”

9

from the head of the Chaplain’s Division.

On October 7, 2002, Rouch once again contacted

Petruska regarding the restructuring. In response, she sent an e-

mail to Garibaldi, noting that she had not yet received an answer

to her request for a meeting. The next day, Garibaldi responded

to Petruska’s e-mail, indicating that the University would take

“appropriate action” if she did not report to Rouch. Believing

that she was about to be fired, she tendered her resignation with

two-weeks notice on October 14, 2002. The following day,

Rouch and Bob Cline, Gannon’s Human Resources Director,

entered Petruska’s office and told her that her resignation was

accepted effective immediately.

Based on these events, Petruska filed a complaint with

the Equal Employment Opportunity Commission (“EEOC”) on

August 20, 2003. Upon exhausting her administrative remedies,

she received a ninety-day “right-to-sue” letter. She filed this

action in the United States District Court for the Western

District of Pennsylvania against Gannon University, members of

the Board of Trustees (including Trautman, Garibaldi, and

Vincent), Rubino, and Rouch. Petruska asserted six claims: (1)

gender discrimination in violation of Title VII against all

Defendants; (2) retaliatory discrimination in violation of Title

VII against all Defendants; (3) fraudulent misrepresentation

against Gannon, Rubino, and Trautman; (4) civil conspiracy

against Trautman, Garibaldi, and Rouch; (5) breach of contract

against Gannon and Garibaldi; and (6) negligent supervision and

retention against Gannon and its Board. Gannon moved to

dismiss Petruska’s claims pursuant to Federal Rule of Civil

Procedure 12(b)(1) for lack of jurisdiction, or in the alternative,

pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure

10

to state a claim on which relief can be granted. The District

Court granted the motion, concluding that the ministerial

exception barred adjudication of Petruska’s claims.

II. Gannon’s Motion to Dismiss

The District Court granted the motion to dismiss pursuant

to Federal Rule of Civil Procedure 12(b)(1) for lack of

jurisdiction. Although we agree that the ministerial exception

applies in this case, we conclude that the exception does not act

as a jurisdictional bar, but rather, is best viewed as a challenge

to the sufficiency of Petruska’s claim under Rule 12(b)(6). See,

e.g., Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 955

(9th Cir. 2004); Bryce v. Episcopal Church in the Diocese of

Colorado, 289 F.3d 648, 654 (10th Cir. 2002).

At issue in a Rule 12(b)(1) motion is the court’s “very

power to hear the case.” 3 Mortensen, 549 F.2d at 891. A Rule

3

As the District Court correctly noted, there are two types

of Rule 12(b)(1) motions: those that attack the complaint on its

face and those that attack subject matter jurisdiction as a matter

of fact. When considering a facial attack, “the Court must

consider the allegations of the complaint as true,” and in that

respect such a Rule 12(b)(1) motion is similar to a Rule 12(b)(6)

motion. Mortensen, 549 F.2d at 891. However, as the court

explained in Mortensen:

The factual attack . . . differs greatly for here the

trial court may proceed as it never could under

12(b)(6) or Fed. R. Civ. P. 56. Because at issue in

a factual 12(b)(1) motion is the trial court’s

jurisdiction . . . there is substantial authority that

11

12(b)(6) motion, by contrast, tests the legal sufficiency of

plaintiff’s claim. In other words, for purposes of resolving a

Rule 12(b)(6) motion, the question is whether the plaintiff

would be able to prevail even if she were able to prove all of her

allegations. Id.

In this case, the question does not concern the court’s

power to hear the case–it is beyond cavil that a federal district

court has the authority to review claims arising under federal

law–but rather whether the First Amendment bars Petruska’s

claims. See Elvig, 375 F.3d at 955 (“Federal question

jurisdiction is statutorily established, giving district courts

‘original jurisdiction of all civil actions arising under the

Constitution, laws, or treaties of the United States.’”). In that

respect, as the Tenth Circuit noted in Bryce, assertion of the

ministerial exception–or, in that case, the “church autonomy

doctrine”–is akin to a government official’s defense of qualified

immunity, which is often raised in a Rule 12(b)(6) motion.

Bryce, 289 F.3d at 654. The exception may serve as a barrier to

the trial court is free to weigh the evidence and

satisfy itself as to the existence of its power to

hear the case. In short, no presumptive

truthfulness attaches to plaintiff’s allegations, and

the existence of disputed material facts will not

preclude the trial court from evaluating for itself

the merits of jurisdictional claims. Moreover, the

plaintiff will have the burden of proof that

jurisdiction does in fact exist.

Id. In this case, the District Court treated the motion as a facial

attack, but construed Petruska’s references to matters outside the

pleadings as an informal request to amend her complaint.

12

the success of a plaintiff’s claims, but it does not affect the

court’s authority to consider them. We therefore review

Petruska’s complaint to determine whether she has stated a

claim upon which relief can be granted pursuant to Federal Rule

of Civil Procedure 12(b)(6). So construing the motion to

dismiss, we have jurisdiction under 28 U.S.C. § 1291. Jordan

v. Fox Rothschild O’Brien & Frankel, Inc., 20 F.3d 1250, 1251

(3d Cir. 1994). Our review is plenary. Id.

III. The Ministerial Exception to Title VII

Title VII of the Civil Rights Act of 1964 prohibits

discrimination in employment on the basis of race, sex, national

origin, or religion and forbids retaliation based on an employee’s

opposition to practices made unlawful under the statute. 42

U.S.C. § 2000e-2; 42 U.S.C. § 2000e-3. The statute exempts

religious entities and educational organizations from its non-

discrimination mandate to the extent that an employment

decision is based on an individual’s religious preferences. See

42 U.S.C. § 2000e-1(a) (providing an exception for “religious

corporation, association, educational institution, or society with

respect to employment of individuals of a particular religion to

perform work connected with the carrying on . . . of its

activities”); see also 42 U.S.C. § 2000e-2(e) (permitting

religious educational institutions “to hire and employ employees

of a particular religion”). By its terms, however, Title VII “does

not confer upon religious organizations the right to make those

same decisions on the basis of race, sex, or national origin.”

Rayburn v. Gen’l Conf. of Seventh Day Adventists, 772 F.2d

1164, 1166 (4th Cir. 1985).

The questions presented in this case are whether applying

13

Title VII to Gannon’s decision to restructure would infringe

upon its free exercise rights and whether adjudication of

Petruska’s Title VII claims would result in unconstitutional

entanglement under the Establishment Clause. Every one of our

sister circuits to consider the issue has concluded that

application of Title VII to a minister-church relationship would

violate–or would risk violating 4 –the First Amendment and,

4

Whereas some courts have derived the ministerial

exception from the doctrine of constitutional avoidance, see,

e.g., McClure v. Salvation Army, 460 F.2d 553, 560-61 (5th Cir.

1972), others have determined that, under its plain language,

Title VII applies to ministerial employment decisions, but they

have nevertheless concluded that such an application is

unconstitutional, see, e.g., Rayburn, 772 F.3d 1164, 1165-67

(4th Cir. 1985). As a general rule, if there is a permissible

construction of the statute which will not result in a “significant

risk” of constitutional infringement, we are to adopt that

construction without reaching the constitutional question.

Geary v. Visitation of the Blessed Virgin Mary Parish Sch., 7

F.3d 324, 327 (3d Cir. 1993). We conclude, as did the Fourth

Circuit, that such an approach is not possible in this case.

Both the plain text of Title VII and its legislative history

foreclose the possibility of imposing a limiting construction

upon the statute. See Rayburn, 772 F.3d at 1165-67. As the

Rayburn Court explained:

While the language of § 702 [42 U.S.C. § 2000e-

1] makes clear that religious institutions may base

relevant hiring decisions upon religious

preferences, Title VII does not confer upon

religious organizations a license to make those

same decisions on the basis of race, sex or

14

accordingly, has recognized some version of the ministerial

exception.5 To the extent that a claim involves the church’s

national origin. The statutory exemption applies

to one particular reason for employment

decision–that based upon religious preference. It

was open to Congress to exempt from Title VII

the religious employer, not simply one basis of

employment, and Congress plainly did not.

Id. at 1166-67. Title VII’s legislative history “reinforces the

plain meaning of the statutory text.” Id. at 1167. Although

Congress has several times revisited the scope of the exemption

for religious employers, it has never extended to such

institutions the authority to discriminate on the basis of sex. See

id. at 1167. Accordingly, we agree with the Fourth Circuit that

Congress intended Title VII to apply to cases involving sexual

discrimination and retaliation by religious institutions. We must

therefore reach the constitutional question–i.e., whether

application of Title VII to a ministerial employment relationship

violates the First Amendment.

5

See, e.g., EEOC v. Roman Catholic Diocese of Raleigh,

213 F.3d 795 (4th Cir. 2000); Rayburn v. Gen’l Conf. of Seventh

Day Adventists, 772 F.2d 1164 (4th Cir. 1985); Combs v.

Central Texas Annual Conf. of the United Methodist Church,

173 F.3d 343 (5th Cir. 1999); McClure v. Salvation Army, 460

F.2d 553 (5th Cir. 1972); Alicea-Hernandez v. Catholic Bishop

of Chicago, 320 F.3d 698 (7th Cir. 2003); Young v. Northern

Illinois Conf. of United Methodist Church, 21 F.3d 184 (7th Cir.

1994); Scharon v. St. Luke’s Episcopal Presbyterian Hosp., 929

F.2d 360 (8th Cir. 1991); Elvig v. Calvin Presbyterian Church,

375 F.3d 951 (9th Cir. 2004); Bollard v. Soc’y of Jesus, 196

F.3d 940 (9th Cir. 1999); Gellington v. Chistian Methodist

Episcopal Church, 203 F.3d 1299 (11th Cir. 2000); EEOC v.

15

selection of clergy–in other words, its choice as to who will

perform particular spiritual functions 6 –most of these circuits

Catholic Univ. of Amer., 83 F.3d 455 (D.C. Cir. 1996); see also

Starkman v. Evans, 198 F.3d 173 (5th Cir. 1999) (applying

ministerial exception to Americans with Disabilities Act claim);

Werft v. Desert Southwest Annual Conf. of the United Methodist

Church, 377 F.3d 1099 (9th Cir. 2004) (same).

The First Circuit also addressed the application of the

First Amendment to a minister’s claims in Natal v. Christian

Missionary Alliance, 878 F.2d 1575 (1st Cir. 1989). Although

the case involved state law claims rather than any federal

employment discrimination law, the Court made clear that

inquiry into allegations related to a minister’s employment

would be barred by the First Amendment. Specifically, it

explained:

Because of the difficulties inherent in separating

the message from the messenger–a religious

organization’s fate is inextricably bound up with

those whom it entrusts with the responsibilities of

preaching its word and ministering to its

adherents–Natal’s case necessarily falls within the

scope of the Court’s monition. By its nature, the

inquiry which Natal would have us undertake into

the circumstances of his discharge plunges an

inquisitor into a maelstrom of Church policy,

administration, and governance. It is an inquiry

barred by the Free Exercise Clause.

Id. at 1578.

6

In evaluating whether a particular employee is subject

to the ministerial exception, other circuits have concluded that

16

have held that the exception bars any inquiry into a religious

organization’s underlying motivation for the contested

employment decision.7

the focus should be on the “function of the position.” Rayburn,

772 F.2d at 1168. As a general rule, an employee will be

considered a minister if her primary duties include “teaching,

spreading the faith, church governance, supervision of a

religious order, or supervision of participation in religious ritual

and worship.” Id. at 1169; see, e.g., Alicea-Hernandez, 320

F.3d at 703 (applying ministerial exception to Hispanic

Communications Director who functioned as a “press secretary”

for the church); Starkman, 198 F.3d at 175-76 (holding that

Choir Director at Methodist church was minister for purposes of

First Amendment analysis); Catholic Univ., 83 F.3d at 455

(applying exception to professor of canon law at Catholic

University). Although we do not view this list as exclusive, we

agree that a focus on the function of an employee’s position is

the proper one.

7

See Rayburn, 772 F.2d at 1169 (“[T]he free exercise

clause of the First Amendment protects the act of a decision

rather than a motivation behind it. In these sensitive areas, the

state may no more require a minimum basis in doctrinal

reasoning than it may supervise doctrinal content.”); Combs, 173

F.3d at 350 (“We cannot conceive how the federal judiciary

could determine whether an employment decision concerning a

minister was based on legitimate grounds without inserting

ourselves into a realm where the Constitution forbids us to

tread.”); Young, 21 F.3d at 186 (quoting Rayburn, 772 F.2d at

1169 ); Scharon, 929 F.2d at 363 (“Personnel decisions by

church-affiliated institutions affecting clergy are per se religious

matters and cannot be reviewed by civil courts for to review

such decisions would require the courts to determine the

meaning of religious doctrine and canonical law and to impose

17

Although we have not previously confronted a factually

appropriate case in which to determine whether the ministerial

exception is constitutionally warranted, we have acknowledged

and cited with approval its application by other courts of

appeals. See Little v. Wuerl, 929 F.2d 944, 947 (3d Cir. 1991)

(citing McClure v. Salvation Army, 460 F.2d 553(5th Cir. 1972);

Rayburn, 772 F.2d 1164) (“Relying on this basic principle,

courts have consistently found that Title VII does not apply to

the relationship between ministers and the religious

organizations that employ them, even where the discrimination

is alleged on the basis of race or sex.”); Geary v. Visitation of

a secular court’s view of whether in the context of the particular

case religious doctrine and canonical law support the decision

the church authorities have made. This is precisely the kind of

judicial second-guessing of decision-making by religious

organizations that the Free Exercise Clause forbids.”) (citations

omitted); Bollard, 196 F.3d at 947 (indicating that a “Jesuit

order’s choice of representative” is ordinarily “a decision to

which we would simply defer without further inquiry”); Minker,

894 F.2d at 1357 (finding that court need not determine whether

reasons for employment decision were “independently

ecclesiastical in nature” to apply ministerial exception).

The Eleventh Circuit has recognized the ministerial

exception, see Gellington, 203 F.3d 1299, but has not directly

addressed whether the exception applies without regard to

motive. We note, however, that the Gellington Court seemed to

tacitly approve of a conclusion by the Fifth Circuit that “the

constitutional protection of religious freedom afforded to

churches in employment actions involving clergy exists even

when such actions are not based on issues of church doctrine or

ecclesiastical law.” Gellington, 203 F.3d at 1303 (citing Combs,

173 F.3d at 350).

18

the Blessed Virgin Mary, 7 F.3d 324, 329 (3d Cir. 1993) (citing

Scharon, 929 F.2d at 363) (“Indeed, when the employee who

challenges an employment decision is a member of the clergy,

some courts have refused to allow even this limited inquiry.”).

Because we conclude that a federal court’s resolution of a

minister’s Title VII discrimination or retaliation claim would

infringe upon First Amendment protections, we now join those

courts in adopting the exception.8

8

Although our sister circuits seem to agree that the

ministerial exception is grounded in the First Amendment, their

rationales for adopting the exception–as opposed to undertaking

some other remedial action–is often less clear. As concerns

remedy, the Supreme Court’s recent decision in Ayotte v.

Planned Parenthood of Northern New England, 126 S. Ct. 961

(2006), indicates that a narrow exception to prevent the

unconstitutional enforcement of Title VII is the proper remedy.

In Ayotte, the Supreme Court considered the appropriate

judicial response where the enforcement of a statute would

render an unconstitutional result. It held that “invalidating [a]

statute entirely is not always necessary or justified” where courts

are “able to render narrower declaratory and injunctive relief.”

Id. at 964. The Court explained:

Generally speaking, when confronting a

constitutional flaw in a statute, we try to limit the

solution to the problem. We prefer, for example

to enjoin only the unconstitutional applications of

a statute while leaving the other applications in

force, see United States v. Raines, 362 U.S. 17,

20-22 (1960), or to sever its problematic portions

while leaving the remainder in tact, United States

v. Booker, 543 U.S. 220, 227-29 (2005).

19

Id. at 967.

The Ayotte Court set forth several guiding principles to

“inform our approach to remedies.” Id. It explained that the

courts should not engage in “quintessentially legislative work,”

and accordingly, cautioned that we should not endeavor to draw

lines where doing so would be “inherently complex.” Id. at 968.

The Court also instructed us to consider the intent of the

legislature: In other words, we must ask whether the legislature

would “have preferred what is left of its statute or no statute at

all[.]” Id. Finally, in selecting a remedy, we must “try not to

nullify more of a legislature’s work than is necessary. . . .” Id.

at 967.

In this case, we conclude that application of the

ministerial exception is not “inherently complex”: It requires

federal courts to determine only whether the resolution of the

plaintiff’s claim would limit a church’s right to choose who will

perform particular spiritual functions. Further, we agree with

the implied findings of our sister circuits that Congress would

prefer a tailored exception to Title VII than a complete

invalidation of the statute. Finally, our remedy is limited: It

does not apply to all employment decisions by religious

institutions, nor does it apply to all claims by ministers. It

applies only to claims involving a religious institution’s choice

as to who will perform spiritual functions. We also note that

this is the “finely drawn” remedy requested by Gannon. See id.

at 969 (noting that the parties recognized the possibility of a

“modest remedy”). Accordingly, we conclude that the

ministerial exception is the proper response to the constitutional

defect in Title VII.

20

A. The Free Exercise Clause of the First

Amendment

The First Amendment of the United States Constitution

provides that “Congress shall make no law respecting an

establishment of religion or prohibiting the free exercise

thereof.” U.S. Const. amend. I. The Religion Clauses extend to

both legislative and judicial action, see Kreshik v. Saint Nicholas

Cathedral of the Russian Orthodox Church of North Amer., 363

U.S. 190, 191 (1960), and apply equally to state and federal

laws, see Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1,

8 (2004) (citing Cantwell v. Connecticut, 310 U.S. 296, 303

(1940)).

The Free Exercise Clause protects not only the

individual’s “right to believe and profess whatever religious

doctrine one desires,” Employment Division, Dep’t of Human

Resources of Oregon v. Smith, 494 U.S. 872, 877 (1990), but

also a religious institution’s right to decide matters of faith,

doctrine, and church governance. Kedroff v. St. Nicholas

Cathedral, 344 U.S. 94, 116 (1952); see also Serbian Orthodox

Diocese v. Milivojevich, 426 U.S. 696, 713 (1976) (“[C]ivil

courts are bound to accept the decisions of the highest

judicatories of a religious organization of hierarchical policy on

matters of discipline, faith, internal organization, or

ecclesiastical rule, custom, or law.”) (emphasis added). In

ministerial exception cases, those rights are interrelated.

First, like an individual, a church in its collective capacity

must be free to express religious beliefs, profess matters of faith,

and communicate its religious message. Unlike an individual

who can speak on her own behalf, however, the church as an

21

institution must retain the corollary right to select its voice. A

minister is not merely an employee of the church; she is the

embodiment of its message. A minister serves as the church’s

public representative, its ambassador, and its voice to the

faithful. Accordingly, the process of selecting a minister is per

se a religious exercise. As the Fifth Circuit explained: “The

relationship between an organized church and its ministers is its

lifeblood. The minister is the chief instrument by which the

church seeks to fulfill its purpose.” McClure, 460 F.2d at 558-

59. “Matters touching this relationship must necessarily be

recognized as of prime ecclesiastical concern.” Id. at 559.9

Consequently, any restriction on the church’s right to choose

who will carry its spiritual message necessarily infringes upon

its free exercise right to profess its beliefs. This right is squarely

at issue in Petruska’s First Amended Complaint.

The second right protected by the Free Exercise

Clause–the church’s right to decide matters of governance and

internal organization–is also implicated by Gannon’s decision to

restructure. The Vice President for Mission and Ministry and

the University Chaplain at Gannon both serve spiritual

functions–in other words, the primary duties of those employees

include “teaching, spreading the faith, church governance,

supervision of a religious order, or supervision of participation

9

In addition to their role within the religious

organization, ministers also have a direct relationship with a

church’s members: Ministers marry their children and bury their

parents; they act as their spiritual counselors and serve as their

moral advisors. To these members, the selection of a minister

is undoubtedly a question of religious concern.

22

in religious ritual and worship.” 10 See Rayburn, 772 F.2d at

1169. Accordingly, Gannon’s decisions regarding who to install

in those positions and the manner in which their duties would be

divided were decisions about who would perform those

constitutionally protected spiritual functions. Those choices are

protected from governmental interference by the Free Exercise

Clause.

The ministerial exception, as we conceive of it, operates

to bar any claim, the resolution of which would limit a religious

10

Petruska argues that she was not a “chaplain” as that

term is understood in the Roman Catholic Church, nor did she

have any written job requirements which specifically defined her

position at the University. Nevertheless, Petruska’s own

complaint establishes that her primary duties involved

ministerial functions. Among other things, Petruska alleges that

she served as co-chair for the Catholic Identity Task Force, held

prayer services, and was traditionally involved in planning

liturgies. Moreover, as the District Court correctly noted, her

own “performance objectives” included “develop[ing] strategies

to increase participation in sacramental life of [the] Gannon

community.” It is clear from the face of Petruska’s complaint

that the functions she performed as University Chaplain were

ministerial in nature.

With respect to the Vice President of Mission and

Ministry position, Petruska alleges that Rouch was installed in

that role and served in a supervisory capacity over the

Chaplain’s Division. To the extent that the Vice President of

Mission and Ministry supervises spiritual functionaries, at least

some of the functions he performs are, by definition, spiritual

ones.

23

institution’s right to select who will perform particular spiritual

functions. Accordingly, in this case, the relevant question with

respect to each of Petruska’s claims is whether application of the

state or federal law will limit Gannon’s right to choose who

performs particular spiritual functions on its behalf. Petruska

asserts six claims in her First Amended Complaint: two

violations of Title VII–discrimination and retaliation (Counts I

and II, respectively); fraudulent misrepresentation (Count III);

civil conspiracy (Count IV); breach of contract (Count V); and

negligent supervision and retention (Count VI). We conclude

that resolution of Counts I, II, IV, and VI would impose

unconstitutional limits on Gannon’s First Amendment right to

the free exercise of religion. Consequently, we hold that they

are barred by the ministerial exception.

1. Petruska’s Title VII Claims

Petruska alleges that Gannon demoted and constructively

discharged her from her position as University Chaplain based

on her gender and retaliated against her on the basis of her

opposition to sexual harassment at the University. Her

discrimination and retaliation claims are premised upon

Gannon’s decision to restructure, a decision which Petruska

argues was merely pretext for gender discrimination. It is clear

from the face of Petruska’s complaint, however, that Gannon’s

choice to restructure constituted a decision about who would

perform spiritual functions and about how those functions would

be divided. Accordingly, application of Title VII’s

discrimination and retaliation provisions to Gannon’s decision

24

to restructure would violate the Free Exercise Clause.11 For that

reason, Petruska’s Title VII claims (Counts I and II) should be

dismissed.

Petruska argues that Gannon waived its right to raise the

ministerial exception as a defense by (1) failing to raise it before

11

We acknowledge that it may not always be clear

whether a minister’s Title VII claim involves a church’s

decision regarding who will perform spiritual functions. For

example, in Elvig v. Calvin Presbyterian Church, 375 F.3d 951,

955 (9th Cir. 2004), the Ninth Circuit considered a Presbyterian

minister’s claims that she was sexually harassed and subject to

retaliation by her supervising pastor. The Elvig Court

recognized that a church’s decisions in selecting its clergy are

protected by the First Amendment and held that to the extent

that a plaintiff’s claims implicated ministerial employment

decisions, the claims were foreclosed. Nevertheless, over a

vigorous dissent, the Court concluded that, in that case, the

sexual harassment, hostile work environment, and retaliation

claims (verbal abuse and intimidation) did not implicate

protected employment decisions. It therefore reversed the

district court’s order dismissing those claims.

In Petruska’s case, the retaliatory conduct at issue is the

employment decision itself, which Elvig recognizes as a

decision protected by the Free Exercise Clause. Because

Petruska does not raise a sexual harassment or hostile work

environment claim, and because the retaliatory conduct she

alleges constitutes a protected choice, we need not decide today

whether the types of claims at issue in Elvig would fall within

the ministerial exception to Title VII.

25

the EEOC; (2) accepting state and federal funds with conditions

limiting discrimination; and (3) repeatedly and publicly

representing itself as an equal opportunity employer. We find

these arguments unpersuasive.

First, as the District Court correctly noted, although a

plaintiff has an obligation to exhaust her administrative

remedies as a prerequisite to suit, we are aware of no authority

that requires a defendant to proffer every possible defense or

legal argument before the EEOC, much less to raise all

constitutional challenges. Cf., e.g., McGinty v. New York, 251

F.3d 84, 93-94 (2d Cir. 2001) (concluding that failure to raise

Eleventh Amendment immunity as a defense did not result in

waiver in subsequent federal court action under the ADEA);

Marie v. Allied Home Mortgage Corp., 402 F.3d 1, 15 (1st Cir.

2005) (holding that appellee did not waive right to raise

arbitration defense in district court by failing to raise it before

EEOC); Brennan v. King, 139 F.3d 258, 263 (1st Cir. 1998)

(same). Moreover, as a general rule, an administrative agency

is not competent to determine constitutional issues. See, e.g,

Weinberger v. Salfi, 422 U.S. 479, 765 (1975) (“Exhaustion is

generally required as a matter of preventing premature

interference with agency process, so that the agency may

function efficiently and so that it may have the opportunity to

correct its own errors, to afford the parties and the courts the

benefit of its experience and expertise, and to compile a record

which is adequate for judicial review . . . . Plainly these

purposes have been served once the Secretary has satisfied

himself that the only issue is the constitutionality, a matter

which is beyond his jurisdiction to determine . . . .”); but cf.

Bethlehem Steel Corp. v. Occupational Safety and Health

Review Commission, 607 F.2d 871, 876 (3d Cir. 1976)

26

(concluding that in context of OSHA enforcement cases, “there

are compelling reasons for insisting that fourth amendment

claims for suppression of evidence . . . be tendered first to the

Commission.”).

In this case, we can see no reason that the general rule

regarding agencies’ lack of competence to resolve constitutional

claims should not apply. The EEOC has no special expertise to

resolve First Amendment claims, nor is Gannon’s assertion of

the ministerial exception related to the EEOC’s jurisdiction or

administrative procedures. We therefore cannot conclude that

Gannon’s failure to raise the ministerial exception before the

EEOC resulted in a waiver of its right to raise it in federal

court.12

Second, Gannon did not “waive” its First Amendment

rights by representing itself as an “equal opportunity employer”

or by accepting federal and state funds. A waiver is “an

intentional relinquishment or abandonment of a known right or

12

Petruska cites no persuasive authority to support her

contention that Gannon is precluded from raising the ministerial

exception for the first time in federal district court. The only

case to which she points in support of this argument is the Ninth

Circuit’s decision in Marshall v. Able Contractors, Inc., 573

F.2d 1055, 1057 (9th Cir. 1978). That case is inapposite. At

issue in Marshall was a district court’s order compelling the

plaintiff to submit to OSHA inspections. The Ninth Circuit held

that an agency should make a determination as to its own

jurisdiction before a federal court considers it. In this respect,

Marshall stands only for the proposition that an agency is

entitled to consider its own jurisdiction and procedural

requirements in the first instance.

27

privilege.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938).

“‘[C]ourts indulge every reasonable presumption against waiver’

of fundamental constitutional rights.” Id. (citation omitted).

Here neither Gannon’s invocation of “equal employer” language

nor its acceptance of funds constitutes a waiver of its First

Amendment rights. By invoking the “equal opportunity”

language, Gannon acknowledged only that it would comply with

Title VII to the extent the statute applies to its employment

decisions. It does not apply in this context. We thus agree that

Gannon did not waive its right to raise the ministerial exception

and we conclude that the District Court properly applied the

exception to Petruska’s Title VII claims.

2. Petruska’s State Tort Law Claims

Petruska’s First Amended Complaint also contains three

state tort claims: civil conspiracy (Count IV), negligent

supervision and retention (Count VI), and fraudulent

misrepresentation (Count III). The civil conspiracy13 and

negligent supervision 14 claims turn on Petruska’s ability to prove

13

Civil conspiracy requires proof that two or more

persons combined to do an unlawful act or to do an otherwise

lawful act by unlawful means. See, e.g., Thompson Coal Co. v.

Pike Coal, 488 Pa. 198, 211 (Pa. 1979). In this case, the alleged

underlying unlawful act is the violation of Title VII.

14

Under Pennsylvania law, an employer may be liable for

negligent supervision “where the employer fails to exercise

ordinary care to prevent an intentional harm to a third party

which (1) is committed on the employer’s premises by an

employee acting outside the scope of his employment and (2) is

reasonably foreseeable.” Mullen v. Topper’s Salon & Health

28

that Gannon’s restructuring constituted an unlawful or tortious

act. Because the First Amendment protects Gannon’s right to

restructure–regardless of its reason for doing so–we cannot

consider whether the act was unlawful or tortious and, therefore,

these claims must be dismissed.

By contrast, Petruska’s fraudulent misrepresentation

claim requires no such conclusion. To establish a claim for

fraudulent misrepresentation, a plaintiff must prove: “(1) a

misrepresentation, (2) a fraudulent utterance thereof, (3) an

intention by the maker that the recipient will thereby be induced

to act, (4) justifiable reliance by the recipient upon the

misrepresentation and (5) damage to the recipient as the

proximate result.” Martin v. Lancaster Battery Co., 530 Pa. 11,

19, 606 A.2d 444, 448 (Pa. 1992). Unlike Petruska’s civil

conspiracy or negligent supervision claims, which require proof

of the unlawful act or intentional harm, the resolution of

Petruska’s fraudulent misrepresentation claim does not turn on

the lawfulness of the decision to restructure, but rather upon the

truth or falsity of the assurances that she would be evaluated on

her merits when she was initially appointed as University

Chaplain in July of 1999.

Because the state’s prohibition against fraud does not

Spa, Inc., 99 F. Supp. 2d 553, 556 (E.D. Pa. 2000) (citations

omitted). Although Petruska’s First Amended Complaint is

replete with references to the current priest sexual abuse

scandals and allegations that Bishop Trautman covered up

harassment and abuse directed towards other individuals, the

only intentional harm to which she claims she was personally

subjected is the underlying discrimination and retaliation.

29

infringe upon Gannon’s freedom to select its ministers,

resolution of Petruska’s fraudulent misrepresentation claim

would not violate the Free Exercise Clause. Nevertheless, we

conclude that Petruska has failed to plead fraud with

particularity as required by Federal Rule of Civil Procedure 9(b),

and accordingly, affirm the District Court’s dismissal of that

claim.15 See Chistidis v. First Pennsylvania Mortg. Trust, 717

F.2d 96, 99 (3d Cir. 1983) (indicating that the pleading

requirements of Rule 9(b) “appl[y] not only to fraud actions

under federal statutes, but to fraud claims based on state law.”).

3. Petruska’s State Law Contract Claim

In Count V of her First Amended Complaint, Petruska

alleges that pursuant to her contract with Gannon, she was

entitled to serve on the President’s Staff and lead the Chaplain’s

Division. She claims that by changing her responsibilities,

Gannon breached its contract.

On its face, application of state contract law does not

involve government-imposed limits on Gannon’s right to select

its ministers: Unlike the duties under Title VII and state tort law,

contractual obligations are entirely voluntary. As the court

noted in Minker v. Baltimore Annual Conference of United

15

In affirming the dismissal of Petruska’s fraudulent

misrepresentation claim on this basis, we anticipate that the

District Court will afford her the opportunity to file an amended

complaint. Borelli v. City of Reading, 532 F.2d 950 (3d Cir.

1976). Should she file an amended complaint which complies

with the particularity requirement of Rule 9(b), the District

Court is instructed to evaluate her claim consistent with the

analysis set forth in section III.B. of this Opinion.

30

Methodist Church, 894 F.2d 1354, 1360 (D.C. Cir. 1990), “[a]

church is always free to burden its activities voluntarily through

contract, and such contracts are fully enforceable in civil court.”

See also, e.g., Rayburn, 772 F.2d at 1171 (“Like any other

organization, [churches] may be held liable . . . upon their valid

contracts.”). Enforcement of a promise, willingly made and

supported by consideration, in no way constitutes a state-

imposed limit upon a church’s free exercise rights.

Accordingly, application of state law to Petruska’s contract

claim would not violate the Free Exercise Clause.

B. The Establishment Clause

Above and beyond its Free Exercise argument, Gannon

contends that resolution of Petruska’s claims would violate the

Establishment Clause. Because we conclude that Petruska failed

to plead fraud with specificity and that her Title VII, civil

conspiracy, and negligent retention and supervision claims are

barred by the Free Exercise Clause, we need not address those

claims further. Petruska’s claim for breach of contract,

however, remains subject to review under the Establishment

Clause. Based upon our analysis in Geary v. Visitation of the

Blessed Virgin Mary Parish School, 7 F.3d 324 (3d Cir. 1993),

we cannot conclude that review of this claim would, at the

outset, unconstitutionally entangle the court in religion, and we

therefore remand it to the District Court.

In Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971), the

Supreme Court set forth a three-prong test to determine the

validity of a statute under the Establishment Clause: “First, the

statute must have a secular legislative purpose; second, its

principal or primary effect must be one that neither advances nor

31

inhibits religion; . . . and finally, the statute must not foster ‘an

excessive government entanglement with religion.’” Only the

entanglement prong is at issue in evaluating Petruska’s contract

claim.

Entanglement may be substantive–where the government

is placed in the position of deciding between competing

religious views–or procedural–where the state and church are

pitted against one another in a protracted legal battle. See, e.g.,

Catholic Univ., 83 F.3d at 465. Therefore, courts typically

consider the character of the claim, the nature of the remedy,

and the presence or absence of a “direct conflict between the .

. . secular prohibition and the proffered religious doctrine.”

Geary, 7 F.3d at 328.

In Geary, the question presented was whether judicial

review of a Catholic school teacher’s Age Discrimination in

Employment Act (ADEA) claims would excessively entangle

the courts where the school’s stated reason for the adverse

employment decision was based on the plaintiff’s marriage to a

divorced man in violation of church doctrine. Id. We concluded

that resolution of Geary’s ADEA claims would not offend the

Establishment Clause because the inquiry was limited to

whether the school discriminated against Geary on the basis of

her age and canceled her insurance in retaliation for her suit. Id.

Geary did not challenge the validity of the religious doctrine;

she merely claimed that the religious doctrine did not motivate

the suit. Id. at 329. We therefore held that “when the pretext

inquiry neither traverses questions of the validity of religious

beliefs nor forces a court to choose between parties’ competing

religious visions, that inquiry does not present a significant risk

of entanglement.” Id. at 330.

32

The Court of Appeals for the District of Columbia Circuit

took a similar approach to a minister’s breach of contract claim

in Minker, 894 F.2d at 1360. Minker involved a Methodist

minister’s claim that he was orally promised a more suitable

pastorship, but was denied such a position based on his age. Id.

at 1355. The Minker court affirmed the dismissal of the

minister’s ADEA and state law discrimination claim as well as

a contract claim based on the Methodist Church’s Book of

Discipline, but reversed the dismissal with respect to the oral

contract claim. Id. at 1359. The court acknowledged that

inquiry into the church’s reasons for failing to meet its

contractual obligation could constitute excessive entanglement

under the Establishment Clause, but nevertheless concluded that

Minker’s claim could “be adduced by a fairly direct inquiry”

into whether there was an offer, acceptance, consideration, and

breach. Id. at 1360. The court further noted that if resolution of

the contract claim required inquiry into the church’s

ecclesiastical policy, the district court could grant summary

judgment on entanglement grounds.

Although the ministerial exception does not apply to lay

employees, we are presented with no principled reason to

distinguish between clergymen and laity for purposes of

determining whether resolution of a contract dispute will unduly

entangle us under the Establishment Clause. Therefore, the

question is whether Petruska’s breach of contract claim can be

decided without wading into doctrinal waters. Much like the

claims in Geary and the oral contract claim in Minker,

Petruska’s breach of contract claim “do[es] not inevitably or

even necessarily lead to government inquiry into [Gannon’s]

religious mission or doctrines.” Geary, 7 F.3d at 329.

Resolution of this claim does not turn on an ecclesiastical

33

inquiry–or, at least not at the outset. If Gannon’s response to

Petruska’s allegations raise issues which would result in

excessive entanglement, the claims may be dismissed on that

basis on summary judgment. Such a conclusion, however, is not

inevitably drawn from the face of Petruska’s complaint. We

will therefore remand this claim for further consideration by the

District Court.

IV. Conclusion

The First Amendment protects a church’s right to decide

matters of faith and to declare its doctrine free from state

interference. A church’s ability to select who will perform

particular spiritual functions is a necessary corollary to this

right. The function of Petruska’s position as University

Chaplain was ministerial in nature, and therefore, her Title VII,

civil conspiracy, and negligent retention and supervision

claims–each of which directly turns on the propriety of

Gannon’s personnel decisions–must be dismissed. Likewise,

Petruska’s fraud claim was not plead with sufficient particularity

to withstand a motion to dismiss. Accordingly, we will affirm

the District Court’s order with respect to these claims. For the

reasons set forth above, however, we will be remand Petruska’s

contract claim for further consideration by the District Court.

34