Curay-Cramer v. Ursuline Academy of Wilmington, Delaware, Inc.

Opinions of the United

2006 Decisions States Court of Appeals

for the Third Circuit

6-7-2006

Curay-Cramer v. Ursuline Academy

Precedential or Non-Precedential: Precedential

Docket No. 04-4628

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 04-4628

MICHELE CURAY-CRAMER,

Appellant

v.

THE URSULINE ACADEMY OF WILMINGTON,

DELAWARE, INC., a Delaware corporation;

MICHAEL A. SALTARELLI;

CATHOLIC DIOCESE OF WILMINGTON, INC.,

a Delaware corporation;

BARBARA C. GRIFFIN; and JERRY BOTTO

On Appeal from the United States District Court

for the District of Delaware

District Court No. 03-cv-01014

District Judge: Honorable Kent A. Jordan

Argued on January 17, 2006

BEFORE: FUENTES, ROTH* and BECKER**,

Circuit Judges

*Effective May 31, 2006, Judge Roth assumed senior

status.

** This case was argued before the panel of Judges

Fuentes, Roth and Becker. Judge Becker died on May 19, 2006,

before the filing of the Opinion. The decision is filed by a

quorum of the panel. 28 U.S.C. § 46(d)

(Filed: June 7, 2006)

Thomas S. Neuberger, Esquire (ARGUED)

Stephen J. Neuberger, Esquire

The Neuberger Firm, P.A.

Two East Seventh Street, Suite 302

Wilmington, DE 19801

Counsel for Appellant

Barry M. Willoughby, Esquire (ARGUED)

Timothy Jay Houseal, Esquire

Michael P. Stafford, Esquire

Young Conaway Stargatt & Taylor, LLP

1000 West Street, 17th Floor

P. O. Box 391

Wilmington, DE 19899-0391

Counsel for Appellees The Ursuline Academy,

Griffin and Botto

Anthony R. Picarello, Jr., Esquire (ARGUED)

Derek L. Gaubatz, Esquire

Jared N. Leland, Esquire

The Becket Fund for Religious Liberty

1350 Connecticut Avenue, N.W.

Suite 605

Washington, D.C. 20036

Stephen E. Jenkins, Esquire

Ashby & Geddes

222 Delaware Avenue

17th Floor

P. O. Box 1150

Wilmington, DE 19899

Counsel for Appellees-Defendants Saltarelli

and Diocese

2

OPINION OF THE COURT

ROTH, Circuit Judge:

Michele Curay-Cramer, a teacher at the Ursuline

Academy, a private, Catholic school, was fired after she signed

her name to a pro-choice advertisement in the local newspaper.

Curay-Cramer asserts both that signing the advertisement was

conduct protected by 42 U.S.C. § 2000e-3(a) and that she was

fired for conduct less egregious under Catholic doctrine than

conduct of male employees who were treated less harshly. The

District Court granted defendants’ motions to dismiss under

FED. R. CIV. P. 12(b)(6). We will affirm but, in doing so, we do

not adopt all of the District Court’s reasoning.

I. Factual Background

Ursuline Academy is a private, non-diocesan Catholic

school in Wilmington, Delaware. Students range in grade from

pre-kindergarten to high school. Ursuline provides college

preparatory education from a Catholic perspective. In June of

2001, Curay-Cramer began teaching four English classes and a

Religion class to 7th and 8th graders at Ursuline. Eighteen

months later, on the thirtieth anniversary of the Supreme Court’s

decision in Roe v. Wade, 410 U.S. 113 (1973), she lent her

name to an advertisement in support of that decision, signed by

some six hundred individuals and organizations. The

advertisement, which ran in the News-Journal, a newspaper of

general circulation in Wilmington, Delaware, stated:

Thirty years ago today, the U.S. Supreme Court in

Roe v. Wade guaranteed a woman’s right to make

her own reproductive choices. That right is under

3

attack. We, the undersigned individuals and

organizations, reaffirm our commitment to

protecting that right. We believe that each

woman should be able to continue to make her

own reproductive choices, guided by her

conscience, ethical beliefs, medical advice and

personal circumstances. We urge all Delawareans

and elected officials at every level to be vigilant

in the fight to ensure that women now and in the

future have the right to choose.

Following the text were the names of the individuals endorsing

it, including Curay-Cramer.

On the day the advertisement appeared, Curay-Cramer

was called into the office of Barbara C. Griffin, the President of

Ursuline. Griffin informed Curay-Cramer that the school was

deeply troubled by her public support of a position inimical to

accepted Catholic doctrine and that Griffin was considering

terminating Curay-Cramer’s employment with the school. In

response, Curay-Cramer asserted her right to protest without

retribution the school’s stance on abortion. She also informed

Griffin that she had volunteered for Planned Parenthood and

distributed pamphlets that she believed contained important

information related to reproductive options.

Curay-Cramer alleges that Griffin then consulted with

Bishop Michael Saltarelli, who ratified the school’s decision to

terminate her.

A few days later, Curay-Cramer was again summoned to

Griffin’s office. She was informed that Ursuline had decided to

terminate her employment but was offering her an opportunity

to resign. She was given the weekend to think it over. The

following week, Curay-Cramer met with Griffin and the head of

Ursuline’s Religion Department. Curay-Cramer told them that

it was illegal to fire her for opposing the school’s illegal

employment practices. She also asserted that she had never said

or done anything in class that was contrary to Ursuline’s

pedagogic philosophy. Griffin responded that Curay-Cramer

could keep her job if she immediately and publicly recanted her

4

support of the advertisement and stated unequivocally that she

was pro-life. Curay-Cramer refused. She was then fired.

II. Procedural History

After she was fired, Curay-Cramer filed suit against

Ursuline, Griffin, Jerry Botto (Ursuline’s Director of

Communications), Bishop Saltarelli, and the Diocese of

Wilmington. Curay-Cramer included six counts in her

Complaint: three federal claims and three state-law claims. Of

the federal claims, Count One focuses on the advertisement in

the News-Journal and alleges that it was a violation of Title VII

and the Pregnancy Discrimination Act (PDA) to fire Curay-

Cramer for opposing Ursuline’s illegal employment practice of

firing anyone who has or contemplates an abortion.1 Count Two

is based on the advertisement and associated advocacy for, and

association with, persons protected by Title VII and the PDA.

In Count Three, Curay-Cramer avers that she was fired because

she is a woman and that similarly situated male employees have

been treated less harshly for substantially similar conduct.

The District Court granted defendants’ motions to

dismiss under FED. R. CIV. P. 12(b)(6) after concluding that

applying Title VII and the PDA would raise serious

constitutional questions and that Congress did not manifest a

clear legislative intent that Title VII be applied in a case like

Curay-Cramer’s. See NLRB v. Catholic Bishop of Chi., 440

U.S. 490 (1979). The District Court then dismissed Curay-

Cramer’s state-law claims under 28 U.S.C. § 1367(c)(3).

III. Jurisdiction and Standard of Review

The District Court exercised original jurisdiction

pursuant to 42 U.S.C. §§ 2000e et seq. (Title VII), as amended

by the PDA, 42 U.S.C. § 2000e(k). We have appellate

jurisdiction to review the final order of dismissal under 28

1

Curay-Cramer alleges that Ursuline has such a policy

and practice; for purposes of reviewing this motion to dismiss,

we accept that assertion.

5

U.S.C. § 1291.

We exercise plenary review of a district court’s dismissal

under FED. R. CIV. P. 12(b)(6). Alexander v. Whitman, 114 F.3d

1392, 1397 (3d Cir. 1997). We affirm where a party has failed

to state a claim upon which relief can be granted. Conley

v.Gibson, 355 U.S. 41, 45-46 (1957). Although we must accept

as true all well-pled allegations, Jordan v. Fox, Rothschild,

O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994), we need

not credit the non-movant’s conclusions of law or unreasonable

factual inferences. Morse v. Lower Merion Sch. Dist., 132 F.3d

902, 906 (3d Cir. 1997). Finally, we can affirm on any basis

appearing in the record. Bernitsky v. United States, 620 F.2d

948, 950 (3d Cir. 1980).

IV. Discussion

Title VII provides, in relevant part:

It shall be an unlawful employment practice for an

employer–

(1) to fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against

any individual with respect to his compensation,

terms, conditions, or privileges of employment,

because of such individual’s race, color, religion,

sex, or national origin; or

(2) to limit, segregate, or classify his employees

or applicants for employment in any way which

would deprive or tend to deprive any individual of

employment opportunities or otherwise adversely

affect his status as an employee, because of such

individual’s race, color, religion, sex, or national

origin.

42 U.S.C. § 2000e-2(a).

The PDA, 42 U.S.C. § 2000e(k), provides:

6

The terms “because of sex” or “on the basis of

sex” include, but are not limited to, because of or

on the basis of pregnancy, childbirth, or related

medical conditions; and women affected by

pregnancy, childbirth, or related medical

conditions shall be treated the same for all

employment-related purposes . . ..

This subsection shall not require an employer to

pay for health insurance benefits for abortion,

except where the life of the mother would be

endangered if the fetus were carried to term, or

except where medical complications have arisen

from an abortion.

Id.

Title VII also contains a provision that protects

employees from retaliation: “It

shall be an unlawful employment practice for an employer to

discriminate against any of his employees . . . because he has

opposed any practice made an unlawful employment practice by

this subchapter . . ..” 42 U.S.C. § 2000e-3(a).2

Curay-Cramer contends that Title VII’s opposition clause

protects any employee who has had an abortion, who

contemplates having an abortion, or who supports the rights of

women who do so. This Court has not ruled on this issue.3

2

It is axiomatic that an employer is free to terminate an

employee provided that the employee is not engaged in

protected conduct.

3

We note that the Sixth Circuit Court of Appeals has held

that “an employer may not discriminate against a woman

employee because ‘she has exercised her right to have an

abortion.’” Turic v. Holland Hospitality, Inc., 85 F.3d 1211,

1214 (6th Cir. 1996) (quoting H.R. REP. NO. 95-1786 (1978)

(Conf. Rep.), reprinted in 1978 U.S.C.C.A.N. 4749, 4765-66).

7

However, even if we were to assume that properly structured

opposition and association activity, directed toward an

employer’s policy or practice of discriminating against women

who have or contemplate abortions, can fall within the ambit of

Title VII, still we conclude that Curay-Cramer has failed to state

a claim in Counts One and Two.

A. Counts One and Two

In considering Counts One and Two, we will not adopt

the District Court’s determination that applying Title VII and the

PDA raises substantial constitutional questions because at a

more basic level we have determined that Curay-Cramer fails to

state a claim. We conclude that Curay-Cramer did not engage

in protected activity when she signed a pro-choice advertisement

that did not mention employment, employers, pregnancy

discrimination, or even gender discrimination. We will,

therefore, affirm the District Court’s dismissal of the first two

counts of her Complaint but not for the reasons adopted by the

District Court.

Title VII’s anti-retaliation provisions protect employees

who participate in Title VII’s statutory processes or who

otherwise oppose employment practices made illegal by Title

VII. Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253,

259-60 (4th Cir. 1998). Defendants Ursuline, the Diocese, and

Bishop Saltarelli argue, however, that basic pro-choice advocacy

does not constitute opposition to an illegal employment practice.

We agree.

Extending that principle, the Sixth Circuit further held that an

employer “cannot take adverse employment action against a

female employee for merely thinking about what she has a right

to do.” Id. Likewise, the Equal Employment Opportunity

Commission (EEOC) has taken the position that it is an

unlawful employment practice to fire a woman “because she is

pregnant or has had an abortion.” 29 C.F.R. pt. 1604, App.

(1986).

8

First, case law has established that opposition to an

illegal employment practice must identify the employer and the

practice – if not specifically, at least by context. For example,

in Barber v. CSX Distribution Services, 68 F.3d 694, 701-02 (3d

Cir. 1995), we held that a letter to an employer’s Human

Resources Department was not protected activity because it did

not specifically complain about age discrimination.4 The letter,

which stated that the plaintiff felt that the position was given to

a less qualified person, was too vague to constitute opposition

to an unlawful employment practice of his employer because it

neither “explicitly or implicitly” alleged that a protected

characteristic was the basis for the adverse employment action.

Id. at 702. A general complaint of unfair treatment is

insufficient to establish protected activity under Title VII. Id.;

Dupont-Lauren v. Schneider (USA), Inc., 994 F. Supp. 802, 823

(S.D. Tex. 1998) (“Vagueness as to the nature of the grievance

. . . prevents a protest from qualifying as a protected activity.”).

Moreover, there is no hard and fast rule as to whether the

conduct in a given case is protected. Barber, 68 F.3d at 702.

Instead, we evaluate the facts of each case in light of the

statutory language and legislative intent. We have previously

recognized that protected opposition conduct includes more than

formal filing of charges before the EEOC. Id. Indeed, in Barber

we cited with approval the Second Circuit’s language in Sumner

v. United States Postal Service, 899 F.2d 203, 209 (2d Cir.

1990), in which the court held that Title VII’s opposition clause

is triggered by formal EEOC proceedings “as well [as] informal

protests of discriminatory employment practices, including

making complaints to management, writing critical letters to

customers, protesting against discrimination by industry or

4

We have previously recognized that Title VII and the

Age Discrimination in Employment Act (“ADEA”), 29 U.S.C.

§ 621 et seq. (2000), are comparable in many contexts. As such,

we refer to ADEA cases throughout this opinion. See Geary v.

Visitation of the Blessed Virgin Mary Parish Sch., 7 F.3d 324,

331 (3d Cir. 1993) (comparing the retaliation provisions of Title

VII and the ADEA).

9

society in general, and expressing support for co-workers who

have filed formal charges.” (citations omitted). When deciding

whether a plaintiff has engaged in opposition conduct, we look

to the message being conveyed rather than the means of

conveyance. Barber, 68 F.3d at 702.

Our review of the jurisprudence in this area convinces us

that Curay-Cramer’s conduct in this case is not deserving of

protection under the opposition language of Title VII. Despite

the wide net cast by Sumner, we are not aware of any court that

has found public protests or expressions of belief to be protected

conduct absent some perceptible connection to the employer’s

alleged illegal employment practice. See Dupont-Lauren, 994

F. Supp. at 823 (holding that employee’s statement was too

vague to constitute protected opposition activity where it did not

apprize the employer of any practice viewed as discriminatory

or accuse anyone at the employing company of engaging in

discrimination). As the Ninth Circuit made clear in EEOC v.

Crown Zellerbach Corp., it must be possible to discern from the

context of the statement that the employee opposes an unlawful

employment practice. 720 F.2d 1008, 1012-13 (9th Cir. 1983)

(holding that employee engaged in protected activity by issuing

a letter accusing his employer of “racism” and

“discrimination”).

In this context, public manifestations of disagreement

with illegal employment practices can be protected under the

opposition clause. For example, an employee’s appearance on

the news magazine “60 Minutes” was assumed to be protected

conduct where the entire show was about allegations of sexual

harassment and discrimination within the Bureau of Alcohol,

Tobacco and Firearms. Hoffman v. Rubin, 193 F.3d 959, 963

(8th Cir. 1999). Similarly, in Copeland v. Rosen, a district court

held that an employee, who attended a public meeting of

students and parents organized for the express purpose of

challenging the allegedly discriminatory termination of a black

teacher, engaged in protected opposition activity. 38 F. Supp.

2d 298, 306-07 (S.D.N.Y. 1999).

A closer case is Payne v. McLemore’s Wholesale &

Retail Stores, 654 F.2d 1130 (5th Cir. 1981). There, the Fifth

10

Circuit upheld a district court’s conclusion that boycotting and

picketing activity was protected conduct in the face of a defense

assertion that the boycotting was merely directed toward

inequality in public accommodation. Id. at 1136-37. However,

the record in that case supported the District Court’s conclusion

that the civil rights organization responsible for the picketing,

which occurred directly outside the stores of the employer, was

directed at the employer’s allegedly discriminatory employment

practice of withholding certain jobs from black employees. Id.

An owner of the store even conceded that the reason for the

boycott was that “[t]hey claimed that uh the merchants in

Winnsboro were unfair to uh blacks.” Id. at 1137.

The News-Journal advertisement stated that the right to

abortion was “under attack” and urged “Delawareans and

elected officials at every level to be vigilant in the fight to

ensure that women now and in the future have the right to

choose.” This language cannot be construed as opposition to

Ursuline’s alleged policy and practice of terminating women

who have or contemplate abortions. The advertisement did not

mention gender discrimination, pregnancy discrimination, or

employment practices. It did not mention Ursuline or any other

schools or employers. To turn pro-choice advocacy,

unconnected to employment practices, into conduct protected by

Title VII would inappropriately stretch the concept of protected

activity.

As written and under the circumstances in which it

appeared, the advertisement simply is not protected opposition

activity. Moreover, there is no context from which one could

reasonably conclude that Curay-Cramer’s signature at the

bottom of the advertisement was in response to Ursuline’s

alleged illegal policy or practice. Instead, context suggests that

the advertisement was a public endorsement of the Supreme

Court’s decision in Roe v. Wade, running, as it did, on the

thirtieth anniversary of that decision. Having failed to mention

discrimination in any way, let alone employment discrimination,

and absent any context from which it is reasonable to conclude

that the advertisement was directed at employers generally or at

Ursuline specifically, Curay-Cramer did not engage in activity

protected by Title VII when she lent her name to the pro-choice

11

position articulated by the advertisement.5

Perhaps realizing the tenuous nature of her claim of

opposition activity based solely on public pro-choice advocacy,

Curay-Cramer attempts to bolster her assertion that she engaged

in protected conduct by averring that, once she was called into

Griffin’s office, she made it clear that it would be wrong to

terminate her for opposing practices of her employer that

interfere with the legal right to an abortion. But as the Supreme

Court has held, an employer need not refrain from carrying out

a previously reached employment decision because an employee

subsequently claims to be engaging in protected activity. Clark

County Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001). Curay-

Cramer’s Complaint makes it clear that Griffin contemplated

firing her from the moment Griffin read the advertisement. The

case law provides that an employee may not insulate herself

from termination by covering herself with the cloak of Title

VII’s opposition protections after committing non-protected

conduct that was the basis for the decision to terminate. If

subsequent conduct could prevent an employer from following

up on an earlier decision to terminate, employers would be

placed in a judicial straight-jacket not contemplated by

5

Although not directly on point, we believe that Lamb-

Bowman v. Delaware State University, 152 F. Supp. 2d 553 (D.

Del. 2001), provides a useful comparison. In that case, the

District Court held that a female basketball coach did not engage

in protected opposition activity by communicating her

displeasure with defendant’s perceived violation of Title IX,

which prohibits schools from providing disparate levels of

funding to men’s and women’s sports programs. Id. at 560. The

plaintiff in Lamb-Bowman was asking the court to infer that

public protest against unfair treatment toward female student

athletes was, by implication, an allegation that the school was

involved in unlawful gender discrimination in employment. The

factual setting is distinguishable. Nevertheless, it is relevant that

the District Court was reticent to find protected activity based on

general protests of gender inequality. As with the situation here,

public advocacy on issues impacting women does not always

evoke the protection of Title VII’s opposition clause.

12

Congress. See id. at 272; Cotton v. Cracker Barrel Old Country

Store, Inc., 434 F.3d 1227, 1232 (11th Cir. 2006); Cichon v.

Exelon Generation Co., 401 F.3d 803, 811 (7th Cir. 2005)

(applying the Breeden principle in the context of the Fair Labor

Standards Act, 29 U.S.C. §§ 201 et seq.).

Curay-Cramer’s subjective state of mind is also irrelevant

for purposes of determining whether she engaged in protected

conduct. Curay-Cramer claims that by lending her name to the

advertisement she communicated four “messages and ideas” to

Ursuline: (1) it did not have the right to discriminate against

women; (2) it should start a dialog concerning the rights of

pregnant women; (3) it should “stop being so certain of the

correctness of its position,” which interferes with a woman’s

right to choose; and (4) “[i]t should end policies which interfere

with access to or advocacy of abortion.” That Curay-Cramer

intended to send these messages by signing the advertisement

does not change the fact that the advertisement itself, viewed

objectively, does not achieve that goal. It is the objective

message conveyed, not the subjective intent of the person

sending the message, that is determinative.

B. Count Three

Turning to Count Three, we agree with the District

Court’s determination that applying the PDA and Title VII

raises a substantial constitutional question under the First

Amendment’s Religion Clauses. Curay-Cramer contends that

she was fired because she is a woman and that similarly situated

male employees have been treated less harshly for substantially

similar conduct. In order to assess this claim of the relative

harshness of penalties for “similar conduct,” we would have to

measure the degree of severity of various violations of Church

doctrine.

In determining whether there is a substantial

constitutional question, we are guided by the Supreme Court’s

analytical framework in Catholic Bishop. 440 U.S. at 490. In

Catholic Bishop, the Supreme Court was faced with the question

whether the National Labor Relations Act should be read to

grant the National Labor Relations Board jurisdiction over

13

religious schools. 440 U.S. 490 (1979). In holding that the

statute did not confer such jurisdiction, the Court set forth an

analytical process to determine whether a statute presents “a

significant risk that the First Amendment will be infringed.” Id.

at 502. First, a court must determine whether applying the

statute raises “serious constitutional questions.” Id. at 501.

Second, if it does, a court must discern whether there is a “clear

expression of an affirmative intention” on the part of Congress

to have the act apply in the situation presented. Id. at 504.

Finally, if such an affirmative intention is shown, the court will

determine whether the statute violates the Constitution as

applied to the facts presented in the case. Id. at 507. The

purpose of this test is to avoid addressing constitutional

questions absent clear legislative intent to apply the statute in a

way that raises a significant risk of infringing constitutional

rights. Geary, 7 F.3d at 324.

Turning to the Catholic Bishop test, first we must

determine whether applying Title VII to a religious employer6

6

Curay-Cramer argues that Ursuline is not a religious

employer because its corporate documents do not say that it is

organized for a religious purpose and because it does not make

its employees sign “Cardinal’s Clauses”–contracts that provide

that an employer is organized for a religious purpose and

expressly grant the employer the right to terminate an employee

that does not follow the tenets of the faith. Whether a school is

legally diocesan or independent does not control our inquiry.

It is the suffusion of religion into the curriculum

and the mandate of the faculty to infuse the

students with the religious values of a religious

creed which create the conflict with the Religion

Clauses and not the vesting of legal title or the

responsibility of operation.

NLRB v. Bishop Ford Cent. Catholic High Sch., 623 F.2d 818,

823 (2d Cir. 1980). The very allegations of Curay-Cramer’s

Complaint show that Ursuline is a religious school for purposes

of our inquiry. She asserts that it is functionally controlled by

14

under these circumstances raises serious constitutional

questions. See, e.g., Rayburn v. Gen. Conference of Seventh-

Day Adventists, 772 F.2d 1164, 1166 (4th Cir. 1985) (finding

that applying Title VII’s prohibitions against gender and racial

discrimination to a church that declined to hire a female pastor

raised serious constitutional questions). In Catholic Bishop, the

Supreme Court noted that the resolution of fair labor practice

claims “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 mission.” 440

U.S. at 502. The “very process of inquiry” can impinge on

rights guaranteed by the First Amendment. Id.

We have had occasion to consider the constitutional

issues raised by applying Title VII to religious employers in

similar contexts. For example, in Little, 929 F.2d 944, 950 (3d

Cir. 1991), we concluded that applying Title VII to a claim of

religious discrimination by an employee terminated from a

Catholic school for marrying in violation of canon law would

raise serious constitutional questions.

[I]nquiry into the employer’s religious mission is

not only likely, but inevitable, because the

specific claim is that the employee’s beliefs or

practices make her unfit to advance that mission.

It is difficult to imagine an area of the

employment relationship less fit for scrutiny by

the secular courts. Even if the employer

ultimately prevails, the process of review itself

might be excessive entanglement.

Id. at 949. While it is true that the plaintiff in Little styled her

allegation as one of religious discrimination whereas Curay-

Cramer’s third Count alleges gender discrimination, we do not

the Diocese and Bishop Saltarelli, that it would be devastated

financially if the Diocese withdrew its support, and, most

importantly, that its teachers understand that they are always to

indoctrinate Ursuline’s students with the views of the Catholic

Church.

15

believe the difference is significant in terms of whether serious

constitutional questions are raised by applying Title VII.

Comparing Curay-Cramer to other Ursuline employees who

have committed “offenses” against Catholic doctrine would

require us to engage in just the type of analysis specifically

foreclosed by Little.

In Geary, decided just two years after Little, we held that

applying the ADEA to a religious school did not present a

significant risk of violating the First Amendment because a

court would only conduct a “limited inquiry” into whether the

school discriminated against the plaintiff on the basis of age or

whether the proffered non-discriminatory reason for firing the

plaintiff, in that case marrying in violation of canon law, was the

actual reason or a pretext. 7 F.3d at 328-29. We noted that as

long as the plaintiff did not challenge the validity or plausibility

of the religious doctrine said to support her dismissal, but only

questioned whether it was the actual motivation, excessive

entanglement questions were not raised. Id. at 330.; DeMarco

v. Holy Cross High Sch., 4 F.3d 166, 170-71 (2d Cir. 1993).

Thus, with Geary in mind, we note that many claims of

discrimination against a religious employer under Title VII will

not raise serious constitutional questions.

Here, however, with the allegation that male employees,

who committed substantially similar offenses, were treated

differently than was Curay-Cramer, we would have to assess the

relative severity of offenses. This exercise would violate the

First Amendment. See Hall v. Baptist Catholic Archdiocese of

Indianapolis, 215 F.3d 618, 626-27 (6th Cir. 2000) (“If a

particular religious community wishes to differentiate between

the severity of violating two tenets of its faith, it is not the

province of the federal courts to say that such differentiation is

discriminatory and therefore warrants Title VII liability.”)

(quoting Hall v. Baptist Mem’l Health Care Corp., 27 F. Supp.

2d 1029, 1039-40 (W.D. Tenn. 1998) (citing Lynch v. Donnelly,

465 U.S. 668, 672 (1984)) (stating that the Religion Clauses

were designed “to prevent, as far as possible, the intrusion of

either [the church or the state] into the precincts of the other.”).

In this case, Curay-Cramer alleges that similarly situated male

employees were treated differently, but points only to men who

16

are Jewish or oppose the war in Iraq.7

As the District Court noted, absent an allegation that a

male employee publicly attacked the Church’s position on

abortion, evaluating the comparators

would require an analysis of Catholic doctrine to

determine whether the decision to employ a

teacher of a different religious background

constitutes an affront to the Catholic faith and, if

so, whether it is an affront of at least the same

seriousness as the Plaintiff’s repudiation of

Catholic doctrine on when life begins and the responsibility to

preserve life in utero.

Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 344

F. Supp. 2d 923, 934 (D. Del. 2004).

We conclude that if we were to consider whether being

Jewish or opposing the war in Iraq is as serious a challenge to

Church doctrine as is promoting a woman’s right to abortion, we

would infringe upon the First Amendment Religion clauses. See

7

At oral argument counsel for plaintiff conceded that he

was not aware of any male employees at Ursuline who engaged

in public pro-choice advocacy. Under FED. R. CIV. P. 11, a

party must have a reasonable basis to believe that a factual

assertion has evidentiary support. To support her claim that

similarly situated males were treated differently by Ursuline,

Curay-Cramer cites examples that, while perhaps meeting the

statutory requirements for similarity, are not sufficiently similar

to avoid evaluating the relative severity of violations of Church

doctrine. Because Curay-Cramer had an obligation to support

her factual assertion, we must assume that the omission of an

allegation involving a male employee who was terminated for

public pro-choice advocacy is an admission that no such male

exists.

17

Hall, 215 F.3d at 626-27.8 Thus, having reached the conclusion

that it would raise serious constitutional questions to apply Title

VII to this case, we turn to the second prong of Catholic Bishop:

whether Congress has manifested an intent to have Title VII

apply to teachers in religious schools in this context. 440 U.S.

at 504.

We note that the courts that have addressed this issue

have held that, under most circumstances, Title VII’s

substantive provisions, with the exception of the prohibition

against religious discrimination, apply to religious employers.

Little, 929 F.2d at 947-48. Nevertheless, we do not assume that

Title VII applies in all contexts and under all fact scenarios.

The legislative history of Title VII shows that Congress

intended to exclude religious employers from the provisions

prohibiting religious discrimination. The original verison of the

1964 Civil Rights Act, H.R. 7152, excluded religious employers

from all of Title VII. H.R. REP. NO. 88-914 (1963) reprinted in

EEOC Legislative History of Title VII and XI of Civil Rights

Act of 1964 at 2010 (1968) (“1964 Legis. Hist.”); 1964

U.S.C.C.A.N. 2355. This exemption was redrafted to apply the

bulk of Title VII’s provisions to religious employers but still

permitted them to employ individuals of a particular religion.

1964 Legis. Hist. at 3001, 3004, 3050. This version passed both

the House and Senate. EEOC v. Pac. Press Publ’g Ass’n, 676

F.2d 1272, 1276-77 (9th Cir. 1982). In 1972, the issue of

exemptions for religious employers arose again. The result was

the expansion of the exemption to provide that it would not be

8

Curay-Cramer also alleges “alternative” bases to support

Count Three. Two of these follow her allegations in Counts

One and Two. As a third alternative basis, she alleges that she

was a qualified Religion teacher who was replaced by a male.

Leaving aside that she admits she was an English teacher who

taught a single Religion class and does not aver that she was

replaced by a male English teacher, we note that discrimination

challenges to a religious school’s selection of full-time religion

teachers are fraught with constitutional pitfalls. Little, 929 F.2d

at 949.

18

an unlawful employment practice for a religious school to hire

employees based on their religious beliefs. Id. at 1277.

The exemption now provides:

Notwithstanding any other provision of this

subchapter, . . . it shall not be an unlawful

employment practice for a school . . . to hire and

employ employees of a particular religion if such

school . . . is, in whole or in substantial part,

owned, supported, controlled, or managed by a

particular religion or by a particular religious

corporation, association, or society, or if the

curriculum of such school, college, university, or

other educational institution is directed toward the

propagation of a particular religion.

42 U.S.C. § 2000e-2(e)(2).

Nevertheless, there are circumstances in which Congress’

intention to apply Title VII to religious employers is less clear.

These cases tend to involve the interplay of Title VII’s

exemption for religious employers and the application of Title

VII’s remaining substantive provisions. The conflict is

presented because the text and legislative history of § 2000e-

2(e)(2) show that “Congress intended the explicit exemptions of

Title VII to enable religious organizations to create and maintain

communities composed solely of individuals faithful to their

doctrinal practices, whether or not every individual plays a

direct role in the organizations religious activities.” Little, 929

F.2d at 951.

In this context, there are circumstances, like those

presented here, where a religious institution’s ability to “create

and maintain communities composed solely of individuals

faithful to their doctrinal practices” will be jeopardized by a

plaintiff’s claim of gender discrimination. Id.; EEOC v. Miss.

19

College, 626 F.2d 477, 485 (5th Cir. 1980) (holding that a

plaintiff is barred from proceeding with a Title VII suit if a

religious employer presents “convincing evidence” that the

employment practice was based on a religious preference).

We distinguish this case from one in which a plaintiff

avers that truly comparable employees were treated differently

following substantially similar conduct. In such a case, neither

the concerns of Little nor the interests of the exemption for

religious employers from religious discrimination claims are

raised. Requiring a religious employer to explain why it has

treated two employees who have committed essentially the same

offense differently poses no threat to the employer’s ability to

create and maintain communities of the faithful. See DeMarco,

4 F.3d at 171 (providing that permissible pretext cases can

involve the question “whether the rule applied to the plaintiff

has been applied uniformly . . ..”).

Were we, however, to require Ursuline to treat Jewish

males or males who oppose the war in Iraq the same as a

Catholic female who publicly advocates pro-choice positions,

we would be meddling in matters related to a religious

organization’s ability to define the parameters of what

constitutes orthodoxy. See Little, 929 F.2d at 948 (expressing

concern that applying Title VII to a religious employer’s

decision to terminate an employee who remarried in violation of

canon law would force the court “to determine what constitutes

‘the official teachings, doctrine or laws of the Roman Catholic

Church’ and whether plaintiff has ‘rejected’ them.”); Hall, 215

F.3d at 626-27. Even assuming such a result is not expressly

barred by 42 U.S.C. § 2000e-2(e)(2), the existence of that

provision and our interpretation of its scope prevent us from

finding a clear expression of an affirmative intention on the part

of Congress to have Title VII apply when its application would

involve the court in evaluating violations of Church doctrine.

Thus, we will not apply Title VII to Curay-Cramer’s claim

because Congress has not demonstrated a clear expression of an

affirmative intention that we do so in situations where it is

impossible to avoid inquiry into a religious employer’s religious

20

mission or the plausibility of its religious justification for an

employment decision. Little, 929 F.2d at 949; Geary, 7 F.3d at

330.

We caution religious employers against over-reading the

impact of our holding. It is by no means the case that all claims

of gender discrimination against religious employers are

impermissible. Indeed, as we have discussed above, many such

claims may not raise serious constitutional questions. If a

religious employer does not offer a religious justification for an

adverse employment action against a non-ministerial employee,

it is unlikely that serious constitutional questions will be raised

by applying Title VII. See Lukaszewski v. Nazareth Hosp., 764

F. Supp. 57, 60 (E.D. Pa. 1991) (finding that a plaintiff’s ADEA

claim did not raise serious constitutional questions in part

because the religious employer’s nondiscriminatory reason for

terminating the employee (using racial epithets), was a

legitimate, nondiscriminatory reason for a secular employer to

fire an employee); Weissman, 38 F.3d at 1045 (noting, in

declining to find serious constitutional questions by applying the

ADEA in that case, that “the Temple failed to allege deficiencies

in [] arguably religious duties or to assert any other religious

reasons for [the plaintiff’s] termination.”).

Finally, we do not hold that a plaintiff seeking to

establish pretext by a religious employer need establish that the

comparators engaged in precisely the same conduct as that said

to support the adverse employment action against the plaintiff.

Whether the proffered comparable conduct is sufficiently similar

to avoid raising substantial constitutional questions must be

judged on a case-by-case basis. Suffice it to say that under the

circumstances presented here, resolving this case would require

the District Court to compare the relative severity of violations

of religious doctrine. Congress has not manifested an

affirmative intention to apply the statute to a religious employer

in the face of such constitutional difficulties. Curay-Cramer,

thus, does not present in Count Three a viable claim under Title

VII.

21

V. Conclusion

We conclude that Curay-Cramer has failed to state a

claim upon which relief can be granted with respect to the first

two counts of her Complaint because signing the pro-choice

advertisement was not protected conduct under Title VII’s

opposition clause. Curay-Cramer’s third count fails because

Congress has not clearly expressed an affirmative intention to

apply Title VII to a claim, as asserted here, against a religious

employer in the present context. Therefore, we will affirm the

judgment of the District Court dismissing the first three counts

of Curay-Cramer’s Complaint under FED. R. CIV. P. 12(b)(6)

and dismissing without prejudice her state law claims.

22