LeBoon v. Lancaster Jewish

Opinions of the United

2007 Decisions States Court of Appeals

for the Third Circuit

9-19-2007

LeBoon v. Lancaster Jewish

Precedential or Non-Precedential: Precedential

Docket No. 05-2073

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007

Recommended Citation

"LeBoon v. Lancaster Jewish" (2007). 2007 Decisions. Paper 332.

http://digitalcommons.law.villanova.edu/thirdcircuit_2007/332

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 05-2073

LINDA LEBOON,

Appellant.

v.

LANCASTER JEWISH COMMUNITY CENTER

ASSOCIATION

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civ. No. 04-cv-00430)

Magistrate Judge: Hon. Jacob P. Hart

Argued on September 26, 2006

Before: RENDELL, CHAGARES and ROTH, Circuit Judges

(Opinion Filed September 19, 2007 )

J. Michael Considine, Jr., Esquire (ARGUED)

Suite 100

12 East Barnard Street

West Chester, PA 19382

Attorney for Appellant

Daniel J. Brennan, Esquire

Christine N. Schultz, Esquire (ARGUED)

Susanin, Widman & Brennan, P.C.

455 South Gulph Road

Suite 240, Executive Terrace

King of Prussia, PA 19406

Attorneys for Appellee

OPINION

ROTH, Circuit Judge:

In this employment discrimination case, a former

employee of the Lancaster Jewish Community Center claimed

discrimination on the basis of religion (evangelical Christianity)

and retaliation for protected EEO activity. The District Court

granted summary judgment in favor of the employer.

We first find that we have jurisdiction to hear the appeal

although it was filed over 30 days after the docketing of the

District Court’s summary judgment opinion and order; because

the District Court did not comply with the separate-document

rule, the employee had 180 days from the date of docketing to

file her appeal. Second, we affirm the District Court because

(a) during the relevant period the Lancaster Jewish Community

Center qualified as a “religious corporation, organization, or

institution” exempted from the religious discrimination

provisions of Title VII; and (b) the employee has not produced

sufficient evidence of a causal link between her alleged EEO

activity and her termination. Finally, we hold that the District

Court did not abuse its discretion in denying the employee’s

motion to reopen discovery after she had filed a motion for

summary judgment.

2

I. Factual and Procedural Background

Plaintiff-appellant Linda LeBoon, an evangelical

Christian, was employed as a bookkeeper by the Lancaster

Jewish Community Center Association (LJCC) from November,

1998, until August 30, 2002, when she was terminated.1

The LJCC was a non-profit corporation located in

Lancaster County, Pennsylvania. Its stated mission was to

“enhance and promote Jewish life, identity, and continuity.”

During the relevant time period it was managed by a Board of

Trustees, a number of committees, and an executive director. Its

bylaws provided that the rabbis of the three area synagogues

serve ex officio as non-voting members of the Board.

The LJCC operated a variety of programs, including a

summer camp and preschool, and published a newspaper, the

Lancaster Jewish News. It held events for various Jewish

holidays, including a Hanukkah dinner. Its funding came from

a variety of sources, including an average of 16.5% annually

from the Lancaster Jewish Federation during the time of

LeBoon’s employment. It also received aid from the United

Way for certain programs. The remaining sources of revenue

were membership dues, program fees, rents, and donations from

individuals and synagogues. Membership was open to Jews and

Gentiles alike.

At the beginning of 2002, the LJCC hired Natalie

Featherman as the new interim Executive Director. It is

essentially undisputed that the LJCC was in serious financial

trouble when Featherman took over – just one month later, the

LJCC held a retreat to discuss money issues.2 LeBoon admits to

1

At the beginning of 2004, the LJCC merged with the

Lancaster Jewish Federation; the resulting entity is the Jewish

Community Alliance of Lancaster.

2

LeBoon attempts to argue that the LJCC was in better

financial condition than it says it was by pointing to year end

financial numbers. The record reflects, however, that the

3

not trusting Featherman and also stated that her relationship with

Featherman began to deteriorate in the spring of 2002 because

of a memo Featherman wrote directed at two other LJCC

employees. LeBoon further stated that Featherman had

generally poor relations with the entire LJCC staff.

In March, 2002, a custodian named Troy Rollman was

terminated. LeBoon testified she opposed his termination

because she believed it was motivated by a disability that

resulted in a speech impediment. On May 30, 2002,

Featherman terminated Sandy Simms, an African-American

employee at Lancaster’s Office of Aging, who performed

receptionist duties at the LJCC. Simms had failed to arrive at

work the previous day and never alerted the LJCC that she

would be absent. LeBoon claims, with the support of a co-

worker’s affidavit, that she complained to Featherman that

Simms was fired because of her race.

As the spring of 2002 turned to summer, the LJCC’s

financial prospects did not get any warmer. According to the

LJCC, Featherman concluded that LeBoon’s position (a full-

time bookkeeper) was unnecessary and could be performed by

another co-worker. On August 30, 2002, three months after

Simms’ discharge and six months after Rollman’s, Featherman

fired LeBoon.

LeBoon filed suit in federal court alleging religious

discrimination, retaliation, and wrongful discharge in violation

of Pennsylvania’s public policy. As relevant for our purposes,

she claimed that she was terminated because she is a Christian

and Featherman learned that LeBoon had attended a Jews for

Jesus concert a few days before her termination, or,

alternatively, in retaliation for LeBoon’s complaints about the

terminations of Rollman and Simms.

numbers looked better than they really were because the LJCC

received an advance on the subsequent year’s funds.

4

With the consent of the parties, the District Court referred

this case to the Magistrate Judge to conduct all proceedings

pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. On

December 16, 2004, the Magistrate Judge granted the LJCC’s

motion for summary judgment and denied LeBoon’s cross

motion for summary judgment. As to LeBoon’s claim of

religious discrimination, the Magistrate Judge found that it was

precluded by Title VII’s exemption of religious corporations

from the prohibition against religious discrimination. The

Magistrate Judge also dismissed LeBoon’s retaliation claim

because she failed to establish evidence from which a

reasonable jury could infer causality. Finally, the Magistrate

Judge dismissed the state law claim for lack of federal

jurisdiction.

On December 23, LeBoon filed a motion for

reconsideration. In its response, the LJCC conceded that the

decision had been based in part on a manifest error of fact

regarding the percentage of the LJCC’s funding that came from

the Lancaster Jewish Federation Campaign. On January 14,

2005, the Magistrate Judge entered an order vacating the order

of December 16, “so that the Court may reconsider this matter.”

After reconsidering the case in light of the correct facts, the

Magistrate Judge once again determined that the LJCC was a

religious organization exempted from the religious

discrimination provisions of Title VII and reissued an order on

February 17, 2005, granting the LJCC the same relief it provided

in its December 16, 2004, order.

Approximately a week later, LeBoon filed a second

motion for reconsideration. The motion was a verbatim copy of

the motion for reconsideration filed after the Magistrate Judge’s

December 16, 2004, ruling. The Magistrate Judge denied this

second motion for reconsideration on March 11, 2005. LeBoon

filed her notice of appeal on April 4, 2005.

5

II. Discussion

A. Jurisdiction

The trial court had jurisdiction pursuant to Title VII of

the Civil Rights Act of 1964 and 28 U.S.C. § 1331. The LJCC

contests our jurisdiction of the appeal, however, on the grounds

that LeBoon’s notice of appeal was untimely. We have

jurisdiction to review our own jurisdiction when it is in doubt,

see Constitution Bank v. Tubbs, 68 F.3d 685, 691 (3d Cir. 1995),

and find that we have appellate jurisdiction under 28 U.S.C. §

1291.

The LJCC argues that we lack jurisdiction of LeBoon’s

appeal because LeBoon did not file a notice of appeal within 30

days of the Magistrate Judge’s February 17, 2005, order

granting, for a second time, the LJCC’s motion for summary

judgment. See Fed. R. App. P. 4. LeBoon responds that her

appeal is timely because her second motion for reconsideration,

filed on February 25, 2005, tolled the 30-day limit to file an

appeal; since the Magistrate Judge did not rule on that second

motion until March 11, 2005, her April 4, 2005, notice of appeal

was within the 30-day deadline. Although we question whether

a litigant can toll the time for appeal by filing a second,

essentially identical motion for reconsideration of a final order,

we need not decide the issue. The reason for this is the

Magistrate Judge’s failure to comply with the separate-order

requirement of Federal Rule of Civil Procedure 58. Under

Rules 58(b) and 79(a), LeBoon had 180 (not 30) days to appeal

from the order of February 17, 2005; thus her appeal, noticed on

April 4, was timely.

Under Federal Rule of Appellate Procedure 4(a)(1)(A),

notices of appeal must generally be filed “within 30 days after

the . . . order appealed from is entered.” However, “if Federal

Rule of Civil Procedure 58(a)(1) requires a separate document,”

the judgment is considered entered “when the judgment or order

is entered in the civil docket under Federal Rule of Civil

Procedure 79(a) and when the earlier of these events occurs: [1]

the judgment or order is set forth on a separate document, or [2]

6

150 days have run from entry of the judgment or order in the

civil docket under Federal Rule of Civil Procedure 79(a).” Fed.

R. App. P. 4(a)(7)(A)(ii). Thus, if a certain order is subject to

the separate-document requirement of Federal Rule of Civil

Procedure 58 and no separate document exists, an appellant has

180 days to file a notice of appeal – 150 for the judgment to be

considered “entered,” plus the usual 30 days from the entry of

judgment.

Federal Rule of Civil Procedure 58(a)(1) requires every

judgment and amended judgment to be set forth in a separate

document unless it is “an order disposing of a motion . . . (D) for

a new trial, or to alter or amend the judgment, under Rule 59; or

(E) for relief under Rule 60.” Fed. R. Civ. P. 58(a)(1). To

summarize the convoluted procedural history again, the

Magistrate Judge initially ruled on cross-motions for summary

judgment on December 16, 2004. On December 23, LeBoon

filed a motion for reconsideration, pointing out a factual error in

the court’s opinion; in its response, the LJCC conceded that the

decision had been based in part on a manifest error of fact.

Consequently, on January 14, 2005, the Magistrate Judge

entered an order vacating the order of December 16, “so that the

Court may reconsider this matter.” On February 17, 2005, the

Magistrate Judge issued an Opinion and Order that again denied

LeBoon’s motion for summary judgment and granted the

LJCC’s.

Although at first blush the February 17 Order could be

understood as merely ruling on LeBoon’s Rule 59 motion for

reconsideration, it is clear that in fact its primary function was

to dispose of the cross-motions for summary judgment, which

were again pending because the earlier order ruling on them had

been vacated. Thus the February 17 Order was subject to the

separate-order rule. See Fed. R. Civ. Pro. 58 advisory

committee notes (2002 amendment) (when the disposition of a

post-judgment motion results in an amended judgment, the

separate-document rule applies to the amended judgment);

Employers Ins. of Wausau v. Titan Int’l, Inc., 400 F.3d 486, 489

(7th Cir. 2005) (when a post-judgment motion is granted, and

7

therefore produces an amended judgment, the amended

judgment must be set forth on a separate document).3

Since the February 17 Order was subject to the separate-

order requirement of Rule 58, we next ask whether it complied

with Rule 58. If it did not, LeBoon’s appeal is timely, because

she filed a notice of appeal within 180 days from the docketing

of the inadequate order.

No magic words are necessary to satisfy the separate

document rule; for instance, an “order’s denomination as an

‘order,’ rather than a ‘judgment,’ does not mean that it fails to

satisfy the separate document requirement.” Local Union No.

1992, IBEW v. Okonite Co., 358 F.3d 278, 285 (3d Cir. 2004).

Rather, an order is treated as a separate document if it satisfies

three criteria: (1) it must be self-contained and separate from

the opinion, (2) it must note the relief granted, and (3) it must

omit (or at least substantially omit) the trial court’s reasons for

disposing of the claims. Id.; In re Cendant Corp. Securities

Litig., 454 F.3d 235, 241 (3d Cir. 2006).

The February 17 Order easily satisfies the second and

third criteria. 4 Because it is not “self-contained and separate

from the opinion,” however, it does not satisfy the first. In

Cendant, we explained that although the separate-document

requirement does not mean that the judgment must necessarily

3

The LJCC concedes this. LeBoon, inexplicably, contests it.

4

The February 17 Order reads:

a. Plaintiff’s Motion for Summary Judgment is DENIED;

b. Defendant’s Motion for Summary Judgment is

GRANTED with regard to Plaintiff’s Claims under 42

U.S.C. § 2000(e);

c. This case is ORDERED DISMISSED for lack of

federal jurisdiction. JUDGMENT IS ENTERED

in this case in favor of Defendant. The Clerk of Court

is hereby directed to close this case for statistical

purposes.

8

be distinct from another document, it means “the judgment must

be set forth in a document that is independent of the court’s

opinion or decision, regardless whether that opinion takes

written form.” Id. at 242. To be independent of the court’s

opinion, an order must be separately titled and captioned, not

paginated consecutively to the opinion or memorandum, not

stapled or otherwise attached to the opinion, and must be

docketed separately. See id. at 241; Local Union No. 1992, 358

F.3d at 284-85. The February 17 Order is set forth in a

document titled “ORDER AND OPINION.” The document

contains only one caption and one signature line and is

consecutively paginated throughout. The judgment portion of

it appears about three-quarters of the way down page 14 of the

15-page document and is separately headed “ORDER.” The

entire document was docketed as “OPINION AND ORDER.”

Thus the order does not satisfy the separate-document rule.

Consequently the judgment set forth in it should be considered

“entered” under Fed. R. App. P. 4(a)(7)(A)(ii) 150 days after

February 17, 2005 (the day it was docketed), and LeBoon had 30

days after that to file her appeal. Fed. R. App. P. 4(a)(1)(A).5

The final question regarding the timeliness of LeBoon’s

appeal is whether she was entitled to the additional 150 days to

file an appeal or whether, as the LJCC argues, she lost the

protections of the separate-document rule by clearly signaling

that she understood the February 17 Order as a final judgment

subject to appeal. The LJCC contends that LeBoon waived the

application of the separate-document rule by filing a motion for

5

Although LeBoon’s appeal was filed before 150 days had

elapsed (and thus before the formal entry of judgment), we are

not prevented from entertaining it. See Fed. R. App. P. 4(a)(2)

(“Filing Before Entry of Judgment. A notice of appeal filed

after the court announces a decision or order – but before the

entry of the judgment of order – is treated as filed on the date of

and after the entry”); Fed. R. App. P. 4(a)(7)(B) (“A failure to

set forth a judgment or order on a separate document when

required by Federal Rule of Civil Procedure 58(a)(1) does not

affect the validity of an appeal from that judgment or order.”)

9

reconsideration of the February 17 Order, eventually appealing

the order, and by stating at oral argument, through counsel, that

she understood the February 17 Order to be the final judgment.

We disagree.

It is clear that a litigant can waive the application of the

separate-document rule in the sense that she may file a valid

appeal without waiting for the lapse of 150 days from the

docketing of a faulty judgment, i.e., before the faulty judgment

has been formalized by the passage of the time period

contemplated by Rule of Appellate Procedure 4(a)(7)(A).

Bankers Trust Co. v. Mallis, 435 U.S. 381 (1978) (per curiam).

The LJCC’s position, however, is that when a litigant signals

that she understands that a final judgment has been filed despite

the order’s failure to comply with the separate-document rule,

she must file an appeal within 30 days of the faulty judgment or

lose her ability to appeal altogether. This is a dubious argument.

See United States v. Indrelunas, 411 U.S. 216, 221-22 (1973)

(per curiam) (although the Government had clearly signaled its

understanding that a stipulation for damages was the final

judgment, the separate-document provision must be

“mechanically applied in order to avoid new uncertainties as to

the date on which a judgment is entered” and therefore the

Government’s appeal was timely); Gregson & Assocs.

Architects v. Gov’t of the Virgin Islands, 675 F.2d 589 (3d Cir.

1982) (per curiam) (holding appeal was timely although the

appellant admitted it had understood a faulty judgment to be

final); Fed. R. App. P. 4(a) advisory committee notes (2002

amendments) (“[i]n drafting new Rule 4(a)(7)(B) [which

provides that appeals filed before the lapse of the 150 days that

convert a faulty judgment into a final one are valid], the

Committee has been careful to avoid phrases such as ‘otherwise

timely appeal’ that might imply an endorsement” of the rule in

a minority of the circuits that appellants who waive the separate-

document requirement must file an appeal within 30 days of the

entry of the “faulty” judgment).

Even if it were possible to waive the protections of the

separate-document rule, LeBoon did not do so here. Waiver is

“the intentional relinquishment or abandonment of a known

10

right.” United States v. Olano, 507 U.S. 725, 733 (1993). It is

all too obvious from LeBoon’s pleadings that she was unaware

she could avail herself of an additional 150 days because of the

formal inadequacy of the February 17 Order. At most, she could

have forfeited her right, see id.; we decline to hold, however,

that this court is deprived of jurisdiction over an appeal through

a litigant’s unknowing forfeiture of the additional time granted

her by the Rules of Civil and Appellate Procedure, and find

instead that LeBoon’s April 4 notice of appeal was timely.6

B. Religious Organization Exemption

The Magistrate Judge granted summary judgment to the

LJCC on Leboon’s claim of religious discrimination because it

found that the LJCC was a “religious organization” exempted

from compliance with the religious discrimination provisions of

Title VII by Section 702 of the Civil Rights Act of 1964.

Leboon argues the LJCC was not a religious organization under

6

Leboon’s Notice of Appeal refers only to the Order of

March 11, 2005, and not to the February 17 Order. This

technical inadequacy, however, does not in itself deprive us of

jurisdiction over the appeal from the underlying order on the

summary judgment motions. See Matute v. Procoast Nav. Ltd.,

928 F.2d 627 (3d Cir. 1991) (although appellant filed notice of

appeal from his motion for reconsideration and did not state his

intention to appeal from the underlying dismissal, the formally

deficient filing did not result in a loss of the right to appeal; it

was clear in context that appellant intended to appeal from the

underlying order and not simply from the denial of his motion

for reconsideration), overruled on other grounds by Neely v.

Club Med Mgmt. Svcs., Inc., 63 F.3d 166 (3d Cir. 1995); Town

of Norwood, Mass. v. New England Power Co., 202 F.3d 408,

415 (1st Cir. 2000) (if the post-judgment motion addressed the

same issues decided in the underlying judgment and the district

court relied on the judgment in ruling on the post-judgment

motion, the issues decided in the underlying judgment are

properly before the court of appeals, even if the notice of appeal

fails to designate the underlying judgment).

11

the statute at the relevant time because it lacked financial or

administrative ties with a synagogue and its nature and purposes

were primarily cultural, not religious. The LJCC responds that

although some of its activities may have been secular in nature,

its Jewish mission and orientation qualified it as a religious

organization. We hold that the LJCC was entitled to the

protection of Section 702 during the period under scrutiny

because its structure and purpose were primarily religious.

Section 702 of the Civil Rights Act of 1964, 42 U.S.C. §

2000e-1(a), “exempts religious organizations from Title VII’s

prohibition against discrimination in employment on the basis of

religion.” Corp. of the Presiding Bishop of the Church of Jesus

Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 329 (1987).

It provides that Title VII “shall not apply . . . to a religious

corporation, association, educational institution, or society with

respect to the employment of individuals of a particular religion

to perform work connected with the carrying on by such

corporation, association, educational institution, or society of its

activities.” 42 U.S.C. § 2000e-1(a).

The statute does not define what constitutes “a religious

corporation, association, educational institution, or society”; as

the Ninth Circuit Court of Appeals has put it, “[a]ll significant

religious and secular characteristics must be weighed to

determine whether the corporation’s purpose and character are

primarily religious.” EEOC v. Townley Eng’g & Mfg. Co., 859

F.2d 610, 618 (9th Cir. 1988). Over the years, courts have

looked at the following factors: (1) whether the entity operates

for a profit, (2) whether it produces a secular product, (3)

whether the entity’s articles of incorporation or other pertinent

documents state a religious purpose, (4) whether it is owned,

affiliated with or financially supported by a formally religious

entity such as a church or synagogue, (5) whether a formally

religious entity participates in the management, for instance by

having representatives on the board of trustees, (6) whether the

entity holds itself out to the public as secular or sectarian, (7)

whether the entity regularly includes prayer or other forms of

worship in its activities, (8) whether it includes religious

instruction in its curriculum, to the extent it is an educational

12

institution, and (9) whether its membership is made up by

coreligionists. See Samford v. Killinger, 113 F.3d 196 (11th Cir.

1997); EEOC v. Kamehameha Schools / Bishop Estate, 990 F.2d

458 (9th Cir. 1993); Townley, 859 F.2d at 618-19 (9th Cir.

1988); EEOC v. Mississippi College, 626 F.2d 477 (5th Cir.

1980).

It is apparent from the start that the decision whether an

organization is “religious” for purposes of the exemption cannot

be based on its conformity to some preconceived notion of what

a religious organization should do, but must be measured with

reference to the particular religion identified by the organization.

Thus not all factors will be relevant in all cases, and the weight

given each factor may vary from case to case. For instance,

although the absence of a proselytizing effort may be a factor

under certain circumstances, it will have no significance with a

non-proselytizing religion – or thus with a determination

whether a Jewish organization is religious. Cf. Kamehameha,

990 F.2d at 463 (listing as a factor leading to the conclusion that

defendant schools were not entitled to the religious exemption

that they had “explicitly disavowed any effort to convert non-

Protestant students”). With this caveat in mind we proceed to

the analysis.

The LJCC is a non-profit organization. Its Articles of

Incorporation and its Bylaws state that its mission is “to enhance

and promote Jewish life, identity, and continuity.” During the

relevant period (defined by LeBoon herself as 1998 to 2002), the

walls of the LJCC’s lobby carried its mission statement, which

was to “develop, involve, and sustain a cohesive Jewish

community through identity, education, and cooperation for all

ages.”

The LJCC’s corporate designee testified that the LJCC

“espouse[d] Jewish values” although “the Jewish values [it]

espouse[d] are universal.” These values include “Tikkun olam,”

meaning healing the world, “Tzadakah,” meaning doing the

right thing, and “Rachamim,” meaning tolerance of other faiths.

The LJCC attempted to teach these values in various ways; for

instance, a certain charity drive involving the collection of

13

pennies was described as being “designed to get children

involved in tzadakah.”

The rabbis from the three local synagogues played an

advisory role in the LJCC’s management. Under the LJCC’s

bylaws, they served as honorary, non-voting members of the

Board of Trustees. When the LJCC held a retreat in February

2002 to discuss its financial troubles, all three rabbis attended.

Minutes of the Executive Committee and Personnel Committee

meetings show that Natalie Featherman’s contract as Executive

Director was not renewed for the reason, among others, that she

did not “have the confidence of the leaders of the synagogues

and other organizations.” The rabbis and presidents of the three

local synagogues were involved in the search for a new

executive director.

Although the LJCC was financially independent from the

local synagogues (as the majority of its budget came from

“programming services and rentals”), both the synagogues and

local Jewish organizations gave it instrumental financial

support. The synagogues assisted with fundraising and the

Lancaster Jewish Federation campaign contributed between 15

and 17% of the LJCC’s budget annually. The extent to which

the LJCC expected to be supported by coreligionists is shown by

the fact that it named the different donor levels with Hebrew

words. In order to be considered a “Zahav” (“gold”)-level donor

to the LJCC, a person had to contribute $613 – as many dollars

as the commandments in the Hebrew Bible. See Cecil Roth, The

Standard Jewish Encyclopedia 1331 (1959) (entry for

“Mitzvah”).

While endeavoring not to be identified with any one of

the three local synagogues, the LJCC maintained close and

active ties with them and other Jewish organizations. The LJCC

strove to serve as a “clearing house” for local Jewish people and

kept literature from all three area synagogues. Reciprocally, the

synagogues distributed the LJCC’s information. The

synagogues, and particularly the rabbis, also provided

programming input and were involved in the LJCC’s

celebrations of Jewish holidays. One local synagogue,

14

Congregation Shaarai Shomayim, built a Sukkah (a temporary

structure used during the holiday of Sukkot) in the LJCC’s

family park and was involved in a Hanukkah dinner in 1999.

The Jewish women’s organization Hadassah held its annual

Rabbi’s Forum at the LJCC at least until 2003, when it decided

to hold it at one of the local synagogues because of its

deteriorating relationship with Natalie Featherman. In early

2002 the LJCC hosted a meeting of the “Messiah Truth Project,”

an organization that aims to combat the conversion of Jews to

Christianity.

Jewish religious belief played a significant role in the

life of the LJCC. In 1998, at Hanukkah, the LJCC’s building

was rededicated by the rabbis of the three local synagogues, and

the rabbis “ceremonially attached [a] mezuzah to the door of the

Social Hall.” A mezuzah is a scroll inscribed with certain verses

from the Torah which the Jews are commanded by the Torah to

affix on every doorway. Standard Jewish Encyclopedia 1314.

The LJCC also observed the Jewish Sabbath and, on at least one

occasion, stood by this religious duty against its financial

interest – at the end of 2001, despite its financial woes, the

Board unanimously decided not to allow a certain organization

to rent the facilities for a holiday fair because it did not wish to

host a profit-making activity on the Sabbath. Board meetings

from 1998 also describe plans for a “Melavveh Malkah,” which

is the “concluding Sabbath meal.” Standard Jewish

Encyclopedia 1292.

Several of the LJCC’s activities involved observance of

the Jewish religious calendar, although these activities did not

necessarily involve holy services. During the relevant time,

Board meetings frequently began with a reading from the Torah

related to that week in the Hebrew calendar. The center held

events for Sukkot, Purim, Hanukkah, and Yom HaShoah, a

holiday in remembrance of the Holocaust, when prayers were

said for the dead.

The LJCC kept a kosher kitchen, although non-kosher

foods could be brought into the building. In 1999, the LJCC’s

mashgiach, or person in charge of supervising compliance with

15

kosher laws, resigned. It is undisputed that a new mashgiach

was not hired. However, the LJCC worked with one of the

rabbis to create a kosher committee to supervise the kitchen, and

attempted to ensure that functions would be kept kosher for the

comfort of those who strictly observed the kosher mandate.

To the extent that the LJCC also served as an educational

institution, the balance of Jewish, as opposed to other content,

in the curriculum was in flux during the period under scrutiny.

Indeed, when the new director, Natalie Featherman, was hired,

a part of her mandate was to “put[] an emphasis on the Jewish

in Jewish Community Center.” For instance, Featherman

introduced a Judaic curriculum into the preschool program,

which had been non-denominational prior to mid-2002, and

supplemented it by a parallel enrichment program with a Judaic

base.

The LJCC’s corporate designee testified that the

preschool held “Tot-Shabbat,” a weekly celebration of the

Sabbath for toddlers, involving the distribution of challah (a

traditional bread) and the recitation of blessings. The Notes to

the Financial Statements for 2001 and 2002 state that “[i]n

keeping with the philosophy of the Jewish Community Center,

[the preschool] integrate[d] the Jewish holidays as they [arose]

throughout the year. [It] also explore[d] multicultural themes

and each child’s unique cultural background.”

Judaic programming was available for adults through the

Holocaust Memorial Library and Center for Diversity and

Tolerance Education. The Center also held Beit Midrash (study

hall) meetings with rabbis and other Jewish educators. In 1999,

the LJCC ran a program called “Jewish U,” a Jewish education

series. The record does not clarify the content of this series. For

a time, the B’nai B’rith Youth Organization, a world-wide

organization for Jewish teens, met at the LJCC. It stopped doing

so when the group’s advisor resigned from the position.

To summarize, the LJCC saw itself as a center for the

local Jewish community, identified itself as Jewish through the

mezuzah on its doorway, relied on coreligionists for financial

16

support, and offered instructional programs with a Jewish

content. The Jewish religious calendar provided the rhythm for

the LJCC’s yearly (and even weekly) activities; the three area

rabbis were involved in management decisions, including the

search for an executive director; and the Board of Trustees

began meetings with Biblical readings and remained acutely

conscious of the Jewish character of the organization. These

characteristics of the LJCC, taken together, clearly point to the

conclusion that the LJCC was primarily a religious organization.

LeBoon argues that despite all this the LJCC is not

sufficiently religious to qualify for Section 702 protection. She

points out that it engaged in secular activities, such as lectures

and instructions with no religious content, and once even rented

space to a Hindu group for meetings , that its employees were

overwhelmingly Gentile, that it accepted United Way funds with

the promise that it would not discriminate in the funded

programs, and that it failed to ban non-kosher foods. None of

these factors is decisive.

First, religious organizations may engage in secular

activities without forfeiting protection under Section 702. See

Hall v. Baptist Memorial Care Corp., 215 F.3d 618 (6 th Cir.

2000) (where a college has clear religious overtones, the fact

that it trains its students for health care, a secular activity, does

not deprive it of Section 702 protection); Feldstein v. Christian

Science Monitor, 555 F. Supp. 974, 977-78 (D.Mass.1983) (a

newspaper with a close relationship with the Christian Science

Church was allowed to discriminate in favor of co-religionists

although it held itself out as an objective and unbiased reporter

of world news). Of course the religious organization exemption

would not extend to an enterprise involved in a wholly secular

and for-profit activity. See Townley, 859 F.2d at 610 (declining

to extend Section 702 protection to a corporation manufacturing

industrial equipment that claimed a religious exemption on the

basis of its owners’ intent to pervade the activity with their

religious belief).

Second, religious organizations need not adhere

absolutely to the strictest tenets of their faiths to qualify for

17

Section 702 protection. See Hernandez v. Comm'r, 490 U.S.

680, 699 (1989) (“[i]t is not within the judicial ken to question

the centrality of particular beliefs or practices to a faith, or the

validity of particular litigants' interpretations of those creeds”);

Thomas v. Review Bd. of Indiana Employment Sec. Division,

450 U.S. 707, 715-16 (1981) (declining to hold that a certain

individual’s belief was not “religious” for purposes of a free

exercise claim because there existed interfaith differences of

interpretation). For example here, the LJCC’s tolerance of non-

kosher foods on its premises is balanced by its continued attempt

to maintain a kosher kitchen.

Third, religious organizations may declare their intention

not to discriminate, as the LJCC did to the United Way and in its

employee handbook, without losing the protection of Section

702. See Hall, 215 F.3d at 625 (Section 702 exemption could

not be waived, even if the entity invoking it had “represented

itself as being an equal opportunity employer and . . . received

federal funds”).

Fourth, the organization need not enforce an across-the-

board policy of hiring only coreligionists. Little v. Wuerl, 929

F.2d 944, 951 (3d Cir. 1991); Samford v. Killinger, 113 F.3d

196, 199-200 (11th Cir. 1997) (no need for an educational

institution to engage in a “strict policy of religious

discrimination” to be entitled to the exemption).

We disagree with LeBoon’s contention that the LJCC’s

willingness to welcome Gentile members and even to host

Hindu services is incompatible with the view that the LJCC was

a religious organization. Indeed, these characteristics are clearly

tied to some of the Jewish principles that guided the LJCC –

tolerance toward other faiths, healing the world, and doing the

right thing.7 We will not deprive the LJCC of the protection of

7

Although the LJCC itself acknowledges that some of these

principles exist outside Judaism, to the extent that the LJCC

followed them as Jewish principles this does not make them any

less significant.

18

Section 702 because it sought to abide by its principles of

“tolerance” and “healing the world” through extending its

welcome to non-Jews.

We also decline LeBoon’s invitation to hold that the

LJCC is a center for Jewish culture rather than religion for the

reasons explained by the Magistrate Judge, namely, because to

engage in such an analysis would risk precisely the sort of state

entanglement with religion that the Supreme Court has

repeatedly warned against. See Amos, 483 U.S. at 343

(Brennan, J., concurring) (noting that the determination whether

a particular activity of a religious organization is religious or

secular “results in considerable ongoing government

entanglement in religious affairs”); Lemon v. Kurtzman, 403

U.S. 602, 613 (1971); Leboon v. Lancaster Jewish Cmty. Ctr.

Ass’n, 04-cv-430, 2005 WL 387642 at *3 n.3(E.D. Pa. Feb. 17,

2005).

Finally, we are not persuaded by the Ninth Circuit Court

of Appeals’ suggestion, on the basis of legislative history, that

Section 702 should be understood to cover little more than

formal houses of worship. Townley, 859 F.2d at 618. The court

based this assertion on one of the congressional debates that led

to the passage of the Civil Rights Act of 1964, which it

summarized as follows:

In 1963, the House Judiciary Committee

drafted H.R. 7152, the bill which was the basis of

much of the Civil Rights Act of 1964. Title VII

of the bill included a section that stated the title

would not apply to a “religious corporation,

association, or society.” . . . [During the House

debate] Representative Purcell proposed

amending H.R. 7152 to allow an educational

institution to discriminate on the basis of religion

if the institution was wholly or partly supported or

managed “by a particular religion or by a

particular religious corporation, association, or

society,” or if the institution’s curriculum was

directed toward the propagation of a particular

19

religion. EEOC Legislative History of Titles VII

and XII of the Civil Rights Act of 1964, at 3197

(1968). . . .

[A]n issue in the debate was whether such

institutions were already protected by the

“religious corporation” exemption. The

consensus was that they were not protected if they

were merely “affiliated” with a religious

organization. . . .

Congress’s conception of the scope of

section 702 was not a broad one. All assumed that

only those institutions with extremely close ties to

organized religions would be covered. Churches,

and entities similar to churches, were the

paradigm.

Townley, 859 F.2d at 617-18.

The amendment was introduced and eventually approved.

We do not, however, believe that this one bit of legislative

history supports the assertion in Townley that Congress assumed

only “[c]hurches, and entities similar to churches” would be

protected by the “religious corporation, association, and society”

language (i.e., by what is now Section 702) without the

proposed amendment to the bill. Id. at 618. First, as Townley

itself acknowledges, “[the] debate is far from comprehensive,”

and although some congressmen expressed concern that the

courts would interpret the existing “religious corporation,

association, or society” language narrowly and not extend the

exemption to religiously affiliated colleges and schools, the

perception that the language was insufficient was hardly

unanimous. Indeed, the discussion was so far from enlightening

on the intended beneficiaries of the protection as to prompt one

Congressman to comment that “if there ever was a legislative

history which became confused in less than an hour, this is it. .

. . [E]very shade of opinion has been ventured on this language

which is conceivable.” EEOC Legislative History at 3204.

Second, the debaters’ concern overwhelmingly regarded the

20

ability of a secular educational institution teaching secular

subjects, but affiliated with or owned by a religious order or

organization, to hire preferentially persons of the same faith.

See, e.g., EEOC Legislative History at 3199 (Ouachita Baptist

College), 3202 (Catholic colleges and schools). It is a large leap

from acknowledging this concern, whether or not well-founded,

to concluding that the Congressmen believed the existing bill to

protect virtually nothing beyond formal houses of worship. In

fact, the concern expressed during the debate is largely

irrelevant to the question we face today, since the LJCC is

readily distinguishable from the examples of schools and

colleges that pepper the transcript. The LJCC’s main purpose

was to “enhance and promote Jewish life, identity, and

continuity,” not to teach calculus or chemistry, whether or not

in a religious atmosphere. Thus we do not find the legislative

history helpful and decline to follow the conclusion drawn from

it in Townley.

Because, during the period under consideration, the

LJCC’s primary purpose was religious, we will affirm the

District Court’s dismissal of LeBoon’s claim of religious

discrimination.

C. Retaliation Claim

LeBoon argues the Magistrate Judge erred in granting

summary judgment for the LJCC on her claim of retaliation

under Title VII. The Magistrate Judge held that although

LeBoon’s evidence, considered in the light most favorable to

her, supported the conclusion that she had opposed conduct by

the LJCC that she believed to be unlawful discrimination, she

had not produced enough evidence to allow a reasonable fact-

finder to find that she was fired because of her complaints.

LeBoon contends that she has produced sufficient evidence of

a causal connection. We agree with the Magistrate Judge that

LeBoon cannot survive summary judgment on her claim of

retaliation.

To establish a prima facie case of retaliation under Title

VII, a plaintiff must show that (1) she engaged in protected

21

activity, (2) the employer took a materially adverse action

against her, and (3) there was a causal connection between the

protected activity and the employer’s action. Moore v. City of

Philadelphia, 461 F.3d 331, 341-42 (3d Cir. 2006).8

LeBoon clearly suffered a materially adverse action,

since she was terminated from her job. She has also proffered

evidence that she engaged in activity protected by Title VII

(namely, coworker Deborah Brown’s affidavit that she

witnessed LeBoon complaining to Featherman, at the end of

May, 2002, that a certain African-American employee had been

terminated because of her race).9 The question is whether

8

In order to show that she was terminated because of her

complaints about the firing of her coworkers, LeBoon need not

prove that retaliation was the sole reason for the LJCC’s

decision; she must prove, however, that it was a determinative

factor of the employment decision, meaning that she would not

have been terminated but for her protected activity. Watson v.

SEPTA, 207 F.3d 207, 215 (3d Cir. 2000); Caver v. City of

Trenton, 420 F.3d 243, 267 (3d Cir. 2005).

9

Protected activity for purposes of a prima facie case of

retaliation does not mean a formal action against the employer.

“Opposition” to discrimination under the retaliation provision

“can take the form of informal protests of discriminatory

employment practices, including making complaints to

management.” Moore v. City of Philadelphia, 461 F.3d 331, 343

(3d Cir.2006) (internal citation and quotation marks omitted.)

In addition, the plaintiff making a retaliation claim need not

prove the merits of the underlying discrimination complaint, but

only that a reasonable person in these circumstances would have

concluded that the employer was engaging in discriminatory

conduct. Id. at 344. Here, LeBoon’s belief was not clearly

unreasonable, although the terminated co-worker had taken an

unauthorized day off immediately before being fired.

LeBoon also claims that she complained to Featherman

and others about six months before her termination about the

firing of an employee who may have had a speech impediment,

22

LeBoon has placed enough evidence in the record to create a

genuine issue of material fact as to whether there was a causal

link between her complaints and her termination. We hold that

she has not.

LeBoon argues that the causal link is established by the

temporal proximity of her complaint to her termination (three

months) and by several episodes in the intervening periods that

show that her relationship with Featherman deteriorated after

her complaint. The LJCC disagrees.

We consider “a broad array of evidence” in determining

whether a sufficient causal link exists to survive a motion for

summary judgment. Farrell v. Planters Lifesavers Co., 206

F.3d 271, 284 (3d Cir. 2000). Where the temporal proximity

between the protected activity and the adverse action is

“unusually suggestive,” it is sufficient standing alone to create

an inference of causality and defeat summary judgment. See

Clark County School Dist. v. Breeden, 532 U.S. 268, 273-74

(2001) (temporal proximity alone, when “very close,” can in

some instances establish a prima facie case of retaliation); Jalil

v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989) (reversing

summary judgment in favor of the defendant where plaintiff had

been discharged two days after his employer’s receipt of his

EEOC claim). Where the temporal proximity is not “unusually

suggestive,” we ask whether “the proffered evidence, looked at

as a whole, may suffice to raise the inference.” Farrell, 206

F.3d at 280 (internal citation and quotation marks omitted).

Among the kinds of evidence that a plaintiff can proffer are

intervening antagonism or retaliatory animus, inconsistencies in

the employer’s articulated reasons for terminating the employee,

or any other evidence in the record sufficient to support the

inference of retaliatory animus. Id. at 279-81. See also

custodian Troy Rollman. There is no support for this in the

record beyond LeBoon’s own testimony; in any event, any claim

of retaliation based on this alleged complaint would fail for the

same reasons as the claim related to the termination of LeBoon’s

African-American coworker.

23

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (“The

mere existence of a scintilla of evidence in support of the

plaintiff's position will be insufficient; there must be evidence

on which the jury could reasonably find for the plaintiff.”).

Although there is no bright line rule as to what

constitutes unduly suggestive temporal proximity, a gap of three

months between the protected activity and the adverse action,

without more, cannot create an inference of causation and defeat

summary judgment. See Clark County School Dist. 532 U.S. at

273 (citing favorably Richmond v. ONEOK, Inc., 120 F.3d 205,

209 (10th Cir.1997), which rejected such an inference where the

events were three months apart); Andreoli v. Gates, 482 F.3d

641, 650 (3d Cir. 2007) (five-month time period between

employee’s complaint and first adverse action was, without

additional evidence, insufficient to raise an inference of

causation). Thus we ask whether there is sufficient evidence in

the record for a reasonable fact-finder to determine that

LeBoon’s termination was caused by her complaint about the

termination of her coworker.

LeBoon has presented evidence of her strained

relationship with Featherman during the last several months of

her employment. It is undisputed, however, that LeBoon started

having difficulties with Featherman almost immediately upon

Featherman’s appointment as Executive Director. In January,

2002, she expressed her disagreement with the LJCC’s hosting

of a Messiah Truth Project meeting; in February, she

complained to Featherman about accounting irregularities (and

also reported them to a Pennsylvania hotline); also in February,

she was relieved of the facility management aspects of her

position; in April or May, 2002, the security of the business

office, for which LeBoon was responsible, was compromised,

and as a result LeBoon established a home office; LeBoon and

Featherman disagreed as to whether Featherman authorized this.

In May, LeBoon reported to the Board Featherman’s decision to

offer another employee, Stefan Dabrowski, additional

compensation in the form of a “reimbursement” of the health

insurance premium that the LJCC did not have to pay because

he had opted out of insurance, and also Featherman’s backdating

24

of a memo to the personnel file about this decision. Featherman

was forced to explain herself to the Board in a memorandum.

Also in May, the Joint Personnel Committee sent a

memorandum to the Board expressing its concern with

Featherman’s actions, several of which were reported by

LeBoon. The memorandum memorializes another instance of

conflict between Featherman and LeBoon, arising from

LeBoon’s request that Featherman formalize a reprimand to

another employee. Again in the same month, the LJCC received

payment of a grant meant for an elevator in response to invoices

sent by Featherman, and LeBoon called the grantor to state the

elevator work had not yet begun. The grantor wrote Featherman

to return the money on June 3, only a few days after LeBoon’s

African-American coworker was terminated; LeBoon testified

that Featherman must have known LeBoon had caused the

request for the grant to be returned.

None of the events after LeBoon’s complaint about the

termination of her coworker in late May, 2002, show a

qualitatively different relationship between LeBoon and

Featherman. The record includes evidence that Featherman

asked LeBoon to report to Dabroski rather than directly to her (a

change which, according to LeBoon herself, was in response to

her insistence on reporting Featherman’s irregularities to the

Board); that LeBoon again complained to an official of the

LJCC about an irregularity involving an employee’s time sheets,

which caused Featherman to tell LeBoon to stop “snooping

around her employees”; and that, two weeks before being fired,

LeBoon wrote a memo to Featherman recording her compliance

with Featherman’s request that Dabrowski be paid as yet

unearned vacation pay. The record also shows that another

employee, Deborah Brown, resigned in June, explaining in her

letter of resignation that Featherman had told Brown she could

no longer trust her because Brown reported her grievances

regarding Featherman to the Personnel Committee.

Thus, although the evidence in the record clearly shows

a tense relationship between LeBoon and Featherman, it does

not sustain the inference that it was caused by LeBoon’s

protected activity. Rather, there is a clear pattern of LeBoon’s

25

complaining to Board members about Featherman or insisting

on respect for formalities and Featherman’s displeasure at these

reports and limitations on her authority even before any mention

of possible discriminatory conduct on the part of the LJCC;

there are also clear indications that LeBoon was not the only

person who suffered the consequences of complaining to the

Board about Featherman.

LeBoon argues that she can show causation because of

inconsistencies in the LJCC’s explanations for her termination.10

She contends that the LJCC did not save any money by

terminating her, since it paid those who took over her tasks more

than it saved.

There can be no serious dispute that the LJCC was in dire

financial straits during the relevant period. The Board minutes

reflect an increasing preoccupation with the LJCC’s chances of

survival; at the Board meeting held four days before LeBoon’s

termination, the treasurer reported the LJCC did not “have

enough to get through another month,” and the possibility of

declaring bankruptcy was considered. As to the redistribution

of LeBoon’s duties, after LeBoon’s termination the bookkeeping

was done by Featherman, Dabroski, and some volunteers; it was

not until the merger creating the Jewish Alliance of Lancaster

that two different employees took over the duties that had been

LeBoon’s. Although financial difficulties in themselves do not

explain why LeBoon in particular was fired, the LJCC’s

explanation is not so inconsistent or incongruous, in the absence

of any other evidence, as to give rise to an inference that

LeBoon was terminated because of her protected activity.

10

Although an examination of the employer’s proffered

legitimate reason for the adverse action is frequently delayed

until the second and third parts of the familiar McDonnell

Douglas burden-shifting framework in pretext cases, “evidence

supporting the prima facie case is often helpful in the pretext

stage and nothing about the McDonnell Douglas formula

requires us to ration the evidence between one stage or the

other.” Farrell, 206 F.3d at 286.

26

We agree with the District Court that no reasonable jury

could find that LeBoon’s termination was caused by her

complaint about the termination of an African-American

coworker, and will affirm the grant of summary judgment on

LeBoon’s retaliation claim.

D. The District Court’s Denial of LeBoon’s Motion to

Reopen Discovery

The final question before us is whether the District Court

erred by denying LeBoon’s motion to reopen discovery to allow

the deposition of David Goodman, a person affiliated with the

Messiah Truth Project, after he had been located.

A district court’s denial of discovery is reviewed for

abuse of discretion. United States v. Hedaithy, 392 F.3d 580,

605 (3d Cir. 2004). Here, LeBoon moved to reopen discovery

in February, 2005, over two months after the close of discovery.

At the time of her motion, LeBoon had filed a motion for

summary judgment, indicating that, from her perspective, the

record was sufficient to warrant relief in her favor. See

Bencivenga v. Western Pa. Teamsters & Employees, 763 F.2d

574, 576 (3d Cir. 1985). In addition, she did not file an affidavit

indicating that she needed additional discovery to respond to the

LJCC’s motion for summary judgment, as provided under

Federal Rule of Civil Procedure 56(f). See Radich v. Goode, 886

F.2d 1391 (3d Cir. 1989) (district court did not abuse discretion

by granting summary judgment despite appellant’s contention

that more discovery was needed when appellant failed to comply

with Rule 56(f) and specify with particularity what discovery

was needed). We conclude, therefore, that the Magistrate Judge

did not abuse his discretion in denying LeBoon’s motion.

IV. Conclusion

For the reasons stated above, we will affirm the District

Court’s order denying LeBoon’s motion for summary judgment

and granting summary judgment to the Lancaster Jewish

Community Center.

27

LeBoon v. Lancaster Jewish Community Center Assoc.,

05-2073

RENDELL, Circuit Judge, dissenting.

This case presents an issue of statutory interpretation. As

the majority points out, Title VII “does not define what

constitutes ‘a religious corporation, association, educational

institution, or society.’” Maj. Op. at 12. Our task, therefore, is

to determine what Congress meant when it employed those

words and provided that the hiring and firing decisions of such

entities should be immune from suits alleging discrimination on

the basis of religion. Rather than inquire into Congress’s intent,

however, the majority refers with broad brush to the approaches

taken by other courts, fails to give serious consideration to the

relevant legislative history, and embraces a hybrid-scattershot

test that examines whether the Lancaster Jewish Community

Center (“LJCC”) kept a kosher kitchen, affixed a mezuzah to its

doorway or recorded its board meetings using the Hebrew

calendar. From the particulars of the LJCC’s operation, the

majority concludes that the LJCC is Jewish enough to qualify

as a “religious corporation.”

I suggest that the majority’s analysis and ultimate ruling

disregard basic canons of statutory interpretation, invite ill-

advised judicial forays into the minutiae of private religious

practice and, worst of all, sanction discriminatory employment

decisions that go far beyond those Congress intended to exempt

from Title VII. Therefore, I must respectfully dissent from this

aspect of the majority’s opinion.11

11

I do not disagree with the majority’s rulings with respect to

parts I, II.A, II.C and II.D.

28

I.

We come to this issue tabula rasa. As I noted above,

Congress did not include within Title VII a definition of the

term “religious corporation.” See Maj. Op. at 19-21. Nor have

we yet had occasion to consider the meaning of that phrase.

Indeed, a survey of our sister courts of appeals reveals that

“[t]here is little precedent on the meaning of ‘religious

corporation’ under [§ 702(a)].” Fike v. United Methodist

Children’s Home of Va., Inc., 547 F. Supp. 286, 290 (E.D. Va.

1982); see also EEOC v. Townley Eng’g & Mfg. Corp., 859

F.2d 610, 618 (9th Cir. 1988) (noting that “the case law on this

question is not very helpful”). Nevertheless, this lack of

authority does not diminish our responsibility to interpret

“religious corporation” in a way that “give[s] effect to

Congress’s intent.” Rosenberg v. XM Ventures, 274 F.3d 137,

141 (3d Cir. 2001).

It is axiomatic that, when the meaning of a phrase

employed by Congress is undefined and unclear, we must begin

our efforts to determine its meaning with a review of the

relevant legislative history. “The Supreme Court has repeatedly

stated: ‘Where . . . the resolution of a question of federal law

turns on a statute and the intention of Congress, we first look to

the statutory language and then to the legislative history if the

statutory language is unclear.’” Murphy v. Dalton, 81 F.3d 343,

350 (3d Cir. 1996) (quoting Blum v. Stenson, 465 U.S. 886, 896

(1984)); see also United States v. Gregg, 226 F.3d 253, 257 (3d

Cir. 2000) (“Where the statutory language does not express

Congress’s intent unequivocally, a court traditionally refers to

the legislative history and the atmosphere in which the statute

was enacted in an attempt to determine the congressional

purpose.”); Dir., Office of Workers’ Comp. Programs v. Sun

Ship, Inc., 150 F.3d 288, 291 (3d Cir. 1998) (“If the statutory

language is ambiguous, we look to legislative history to

determine congressional intent.”). The majority fails to take

even this most basic step, referring in conclusory fashion to the

analysis of the legislative history supplied by another court.

Maj. Op. at 19-21. A thorough analysis of the legislative

history makes clear that Congress intended the phrase “religious

29

corporation” to mean those organizations funded or controlled

by a religious group.

II.

The current version of Title VII includes two exemptions

pertinent to this case. The first is located in § 702(a) and

provides that the anti-discrimination provisions of Title VII

“shall not apply . . . to a religious corporation, association,

educational institution, or society.” The second is located in

§ 703(e)(2) and provides that

it shall not be an unlawful employment practice

for a school, college, university, or other

educational institution or institution of learning to

hire and employ employees of a particular

religion if such school, college, university, or

other educational institution or institution of

learning 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 or institution of learning is

directed toward the propagation of a particular

religion.

While Title VII’s drafters included the § 702(a)

exception in the first draft of H.R. 7152 – “the bill which was

the basis of much of the Civil Rights Act of 1964,” Townley,

859 F.2d at 617 – they did not include the § 703(e)(2)

exception. Fearing that § 702(a) would not include situations

in which an educational institution had aligned itself with a

particular faith, but was not fully owned or supported by that

faith, Representative Graham Purcell offered an amendment

that would create the exception now located in § 703(e)(2). At

issue in the floor debate over the Purcell Amendment was

whether it was necessary – that is, whether the exemption

located under § 702(a) was already sufficient to cover the

relationships of concern to Rep. Purcell. Or course, Rep.

30

Purcell believed that it was not and, in support of his argument,

said:

In my study of the bill, I discovered that

generally the church-affiliated schools and

colleges that are not protected by these two

attempts to exempt them.

Almost without exception, the term

“religious corporation” would not include

church-affiliated schools unless this definition

should received the most liberal possible

interpretation by the courts. Actually most

church-related schools are chartered under the

general corporation statutes as nonprofit

institutions for the purpose of education.

EEOC Legislative History of Titles VII and XI of the Civil

Rights Act of 1964, at 3197 (1968) (emphasis added).12

Later in the debate, Representative Herbert Ray Roberts

rose to inquire about the status of a religious orphanage in his

district and whether it would be considered exempt under

§ 702(a). In response, Representative Franklin Delano

Roosevelt, Jr. rose and asked whether “the organization . . .

[was] wholly owned by [the] religious order.” Id. at 3201

(emphasis added). When Representative Roberts responded

that it was, Representative Roosevelt said that it would

“unquestionably” be exempt under § 702(a). Id. Representative

Roberts rose once again to inquire about the same orphanage

12

Notably, the LJCC has represented itself as an “educational

organization” before the Internal Revenue Service, see Appx. at

1058, and as an entity created “[t]o provide educational,

recreational, social, cultural, and human services to all members

of the community,” before the Commonwealth of Pennsylvania

Department of State, see id. at 1080.

31

and, in response, Representative Emanuel Celler, then

Chairman of the Judiciary Committee and instrumental in the

drafting and passage of the Civil Rights Act, rose to say that the

orphanage would fall under § 702(a) “[i]f it [was] a wholly

church supported organization, that is, a religious corporation

that comes under section [702(a)].” Id. at 3204 (emphasis

added). In short, “the consensus was that [religious

corporations] were not protected [under § 702(a)] if they were

merely ‘affiliated’ with a religious organization.” Townley, 859

F.2d at 617.

Eventually, Congress passed the Purcell Amendment,

confirming that it understood the § 703(e)(2) exemption to

require a lesser degree of association between an entity and a

religious sect than what would be required under § 702(a). This

is made all the more obvious by the fact that, since § 702(a)

already exempted religious “educational institution[s],” there

would have been no need to create an entirely new section if

Congress had already intended § 702(a) to encompass

relationships in which schools or colleges were not actually

owned or controlled by a formal religious organization.

Therefore, the distinction between § 702(a) and § 703(e)(2) is

that the former requires an extremely close nexus between the

entity and the religion while the latter requires a lesser showing.

See, e.g., Fike, 547 F. Supp. at 290 n.3 (describing the

§ 703(e)(2) exemption as the “more lenient exemption” of the

two). Thus, § 703(e)(2) applies only to an entity that is “in

whole or in substantial part, owned, supported, controlled or

managed by a particular religion,” while § 702(a) requires a

showing that the entity is more than “in substantial part, owned,

supported, controlled or managed by a particular religion.” This

leaves very little room for an organization financially or

structurally independent of a religious order to avail itself of the

§ 702(a) exemption.

Looking at the LJCC through this lens, there is no doubt

that it does not qualify under § 702(a). With respect to

governance, the LJCC, during the relevant time period, was not

run by a synagogue, but by a board independently elected by the

Center’s members. As the majority points out, while the rabbis

32

from each of the three local synagogues attended board

meetings, they only “played an advisory role,” serving as

“honorary, non-voting members” of the Board. Maj Op. at 14.

With respect to financial assistance, there is simply no evidence,

nor has the LJCC contended, that any of the local synagogues

gave the LJCC any money in any of the years at issue. Instead,

the LJCC sustained itself largely by dues and income from the

rental of its facilities. The only support it received from an

arguably “religious” organization was, as the majority points

out, from the Lancaster Jewish Federation. See id. The LJCC

does not argue that the Federation was akin to a synagogue.

Therefore, far from being more than “in substantial part, owned,

supported, controlled or managed by a particular religion,” the

LJCC was an independent entity not controlled by any religious

sect while it employed Linda LeBoon and cannot now use

§ 702(a) to shield itself from LeBoon’s suit.

III.

The majority’s discussion of the legislative history

misses the point, as it fails to address the concern of the

debaters that is relevant to the question before us – namely, the

relationship required between an organization and its religion

under §§ 702(a) & 703(e)(2). Instead, the majority notes that

the representatives were concerned with “the ability of a secular

educational institution teaching secular subjects, but affiliated

with or owned by a religious order or organization, to hire

preferentially persons of the same faith.” Maj. Op. at 20-21.

While the purpose of the amendment was, undoubtedly, to

address the ability of religious schools to hire and fire

preferentially, the debate explored the extent to which that had

already been achieved by § 702(a), and it is this feature of the

debate that sheds light on the meaning of that exemption.

Additionally, the majority writes that “the LJCC is

readily distinguishable from the examples of schools and

colleges that pepper the transcript” of the legislative history.

Maj. Op. at 21. The question of whether the LJCC is “readily

distinguishable” from the schools and colleges discussed in the

33

debate is irrelevant because the question is not at issue.13 What

is important for our purposes is that the legislative history

reveals what Congress understood to be the differences between

the relevant exemptions, both of which refer to religious

schools and colleges. The discussion of whether § 702(a) was

sufficient to cover independent religious schools informs the

meaning of “religious corporation” since § 702(a) treated both

entities in the same way.

The majority’s terse discussion of the legislative history

robs its analysis of the necessary focus on Congress’s intent and

consequently infects its ability to craft a coherent and

manageable test for determining what constitutes a “religious

corporation, association, educational institution, or society.”

Rather than adopting an approach that analyzes the closeness of

the LJCC’s formal relationship with a particular religious

group, the majority announces at the outset of its discussion that

the LJCC is entitled to the § 702(a) exemption “because its

structure and purpose” are primarily religious. However, it then

proceeds to discuss neither structure nor purpose, but, rather,

catalogues Jewish attributes of the LJCC’s daily operations,

such as the features of the its programming, its observance of

the Sabbath, its pre-school curriculum and the extent to which

the Jewish calendar “provided the rhythm” of its activities.

Maj. Op. at 17. As if this approach were not already

sufficiently nebulous, the majority offers a series of caveats,

which dictate that a religious corporation may avail itself of

§ 702(a) and still “engage in secular activities,” fail to conform

to “the strictest tenets” of its faith, declare its intention not to

discriminate even while doing just that, and, finally, hire

persons who subscribe to other faiths while reserving the right

to fire those same employees, solely on the basis of their

religion, should it choose to do so at some point in the future.

Maj. Op. at 17-18.

13

The question would have been relevant had the LJCC

sought protection under the § 703(e)(2) exemption, which it did

not.

34

The majority’s test is unwieldy and rooted in neither the

text of Title VII nor in the understanding of the Congress that

wrote it.

IV.

In sum, Congress understood § 702(a) to cover only

those entities that, unlike the LJCC, are controlled by a religious

sect. See Townley, 859 F.2d at 617 (“All assumed that only

those institutions with extremely close ties to organized religion

would be covered [by § 702(a)]. Churches, and entities similar

to churches, were the paradigm.”). However, another serious

concern cuts in favor of reading § 702(a) as I suggest, and that

is, as even the majority points out, that “‘[i]t is not within the

judicial ken to question the centrality of particular beliefs or

practices to a faith, or the validity of particular litigants’

interpretations of those creeds.’” Maj. Op. at 18 (quoting

Hernandez v. Comm’r, 490 U.S. 680, 699 (1989)).

Unfortunately, this is exactly the sort of scrutiny that the

majority applies to the LJCC, giving us a five-page analysis of

the particulars of the Center’s commitment to Judaism – an

analysis exemplified by its pronouncement that “the LJCC’s

tolerance of non-kosher foods on its premises is balanced by its

continued attempt to maintain a kosher kitchen.” Id. By

adopting a test that turns on the attributes of the LJCC’s

religious practice, the majority mistakenly assumes that we have

the competence to, and should, sort through the various

activities of a religiously inclined organization and pick out

those that are meaningful and those that are not. We have

previously declined to do so. See Africa v. Pennsylvania, 662

F.3d 1025, 1030 (3d Cir. 1981) (“Judges are not oracles of

theological verity, and the Founders did not intend for them to

be declarants of religious orthodoxy.”); see also DeHart v.

Horn, 227 F.3d 47, 55-57 (3d Cir. 2000) (citing many cases

establishing “a consistent and resounding theme” that represents

our, and the Supreme Court’s, reluctance to evaluate the

particulars of religious practice). We should not do so here. It

is neither practical nor desirable and, ultimately, unnecessary

given Congress’s intent.

35

V.

For these reasons, I would reverse the District Court’s

order and remand for further proceedings on LeBoon’s

discrimination claim.

36