Petition for Writ of Certiorari — Laura Barbour Bowes, as Executor of the Estate of Eva Palmer, Petitioner v. Liberty University, Inc.

Supreme Court briefNov 17, 2023

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No. 23A356

In the

Supreme Court of the United States

LAURA BARBOUR BOWES, AS EXECUTOR OF

THE ESTATE OF EVA PALMER,

Petitioner,

LIBERTY UNIVERSITY, INC.,

Respondent.

-----------------------------------------ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

-----------------------------------------APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

------------------------------------------

Richard F. Hawkins, III

Counsel of Record

THE HAWKINS LAW FIRM, PC

2222 Monument Avenue

Richmond, VA 23220

(804) 308-3040

rhawkins@thehawkinslawfirmpc.com

Counsel for Petitioner

GibsonMoore Appellate Services, LLC

206 East Cary Street ♦ Richmond, VA 23219

804-249-7770 ♦ www.gibsonmoore.net

TABLE OF CONTENTS

Appendix

Page:

Judgment

U.S. Court of Appeals for the Fourth Circuit

filed June 30, 2023 .............................................. 1a

Order

U.S. Court of Appeals for the Fourth Circuit

filed July 5, 2023 ................................................. 3a

Amended Opinion

U.S. Court of Appeals for the Fourth Circuit

filed July 5, 2023 ................................................. 5a

Memorandum Opinion and Order

United States District Court

Western District of Virginia

Lynchburg Division

filed December 1, 2021...................................... 66a

Memorandum Opinion

United States District Court

Western District of Virginia

Lynchburg Division

filed December 10, 2021.................................... 87a

Order

United States District Court

Western District of Virginia

Lynchburg Division

filed December 10, 2021.................................. 110a

Order – Denying Petition for Rehearing

U.S. Court of Appeals for the Fourth Circuit

filed July 28, 2023 ........................................... 111a

[FILED JUNE 30, 2023]

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

___________________

No. 21-2390 (L)

(6:20-cv-00031-NKM-RSB)

___________________

EVA PALMER

Plaintiff - Appellant

LIBERTY UNIVERSITY, INC.

Defendant - Appellee

-----------------------------AMERICANS UNITED FOR SEPARATION OF

CHURCH AND STATE

Amicus Supporting Appellant/Cross-Appellee

PEPPERDINE UNIVERSITY; BRIGHAM YOUNG

UNIVERSITY; THE CATHOLIC UNIVERSITY OF

AMERICA; HOUSTON BAPTIST UNIVERSITY

Amici Supporting Appellee/Cross-Appellant

___________________

No. 21-2434

(6:20-cv-00031-NKM-RSB)

___________________

EVA PALMER

Plaintiff - Appellee

LIBERTY UNIVERSITY, INC.

Defendant - Appellant

-----------------------------AMERICANS UNITED FOR SEPARATION OF

CHURCH AND STATE

Amicus Supporting Appellant/Cross-Appellee

PEPPERDINE UNIVERSITY; BRIGHAM YOUNG

UNIVERSITY; THE CATHOLIC UNIVERSITY OF

AMERICA; HOUSTON BAPTIST UNIVERSITY

Amici Supporting Appellee/Cross-Appellant

___________________

JUDGMENT

___________________

In accordance with the decision of this court, the

judgment of the district court in Case No. 21-2390 is

affirmed.

In accordance with the decision of this court, Case

No. 21-2434 is dismissed, and the court vacates the

Constitutional Ruling.

This judgment shall take effect upon issuance of

this court's mandate in accordance with Fed. R. App.

P. 41.

/s/ PATRICIA S. CONNOR, CLERK

[FILED JULY 5, 2023]

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

___________________

No. 21-2390 (L)

(6:20-cv-00031-NKM-RSB)

___________________

EVA PALMER,

Plaintiff – Appellant,

LIBERTY UNIVERSITY, INC.,

Defendant – Appellee.

-----------------------------AMERICANS UNITED FOR SEPARATION OF

CHURCH AND STATE,

Amicus Supporting Appellant/Cross-Appellee.

PEPPERDINE UNIVERSITY; BRIGHAM YOUNG

UNIVERSITY; THE CATHOLIC UNIVERSITY OF

AMERICA; HOUSTON BAPTIST UNIVERSITY,

Amici Supporting Appellee/Cross-Appellant.

___________________

ORDER

___________________

The court amends its opinion filed June 30, 2023,

as follows:

On page 7, in the final sentence of the first

paragraph, the citation to “Id. at 1134” is corrected to

“See J.A. 1134.”

On page 20, in the first sentence of footnote 5, the

references to “ADEA Ruling” are corrected to

“Statutory Ruling.”

On page 21, in the first sentence of footnote 6, the

reference to “ADEA Ruling” is corrected to “Statutory

Ruling.”

For the Court – By Direction

/s/ Patricia S. Connor, Clerk

[FILED JULY 5, 2023]

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

___________________

No. 21-2390

___________________

EVA PALMER,

Plaintiff – Appellant,

LIBERTY UNIVERSITY, INC.,

Defendant – Appellee.

-----------------------------AMERICANS UNITED FOR SEPARATION OF

CHURCH AND STATE,

Amicus Supporting Appellant/Cross-Appellee,

PEPPERDINE UNIVERSITY; BRIGHAM YOUNG

UNIVERSITY; THE CATHOLIC UNIVERSITY OF

AMERICA; HOUSTON BAPTIST UNIVERSITY,

Amici Supporting Appellee/Cross-Appellant.

___________________

No. 21-2434

___________________

EVA PALMER,

Plaintiff – Appellee,

LIBERTY UNIVERSITY, INC.,

Defendant – Appellant.

-----------------------------AMERICANS UNITED FOR SEPARATION OF

CHURCH AND STATE,

Amicus Supporting Appellant/Cross-Appellee,

PEPPERDINE UNIVERSITY; BRIGHAM YOUNG

UNIVERSITY; THE CATHOLIC UNIVERSITY OF

AMERICA; HOUSTON BAPTIST UNIVERSITY,

Amici Supporting Appellee/Cross-Appellant.

___________________

Appeals from the United States District Court for the

Western District of Virginia, at Lynchburg. Norman

K. Moon, Senior District Judge. (6:20-cv-00031-NKMRSB)

___________________

Argued: January 26, 2023 Decided: June 30, 2023

Amended: July 5, 2023

___________________

Before KING and RICHARDSON, Circuit Judges,

and MOTZ, Senior Circuit Judge.

___________________

Appeal No. 21-2390 affirmed, and Appeal No. 21-2434

dismissed and vacated, by published opinion. Judge

King wrote the majority opinion, in which Judge Motz

joined. Judge Motz wrote a concurring opinion. Judge

Richardson wrote an opinion concurring in the

judgment.

___________________

ARGUED: Richard F. Hawkins, III, THE HAWKINS

LAW FIRM, PC, Richmond, Virginia, for

Appellant/Cross-Appellee. King Fitchett Tower,

WOODS ROGERS VANDEVENTER BLACK PLC,

Roanoke, Virginia, for Appellee/Cross-Appellant. ON

BRIEF: Leah M. Stiegler, WOODS ROGERS PLC,

Richmond, Virginia; Horatio G. Mihet, Roger K.

Gannam, Orlando, Florida, Mathew D. Staver,

Washington, D.C., Daniel J. Schmid, LIBERTY

COUNSEL, Lynchburg, Virginia, for Appellee/CrossAppellant. Eric C. Rassbach, The Hugh and Hazel

Darling Foundation Religious Liberty Clinic,

PEPPERDINE CARUSO SCHOOL OF LAW, Malibu,

California; Noel J. Francisco, Megan Lacy Owen, J.

Benjamin Aguiñaga, JONES DAY, Washington, D.C.,

for Amici Pepperdine University, Brigham Young

University, The Catholic University of America, and

Houston Baptist University. Richard B. Katskee,

Bradley Girard, Gabriela Hybel, AMERICANS

UNITED FOR SEPARATION OF CHURCH AND

STATE, Washington, D.C., for Amicus Americans

United for Separation of Church and State.

___________________

KING, Circuit Judge:

In these consolidated appeals from the Western

District of Virginia, plaintiff Eva Palmer challenges

the district court’s award of summary judgment to

defendant Liberty University, Inc. (“Liberty”) on

Palmer’s claim of age discrimination, pursued under

provisions of the Age Discrimination in Employment

Act (the “ADEA”). See Palmer v. Liberty Univ., Inc.,

No. 6:20-cv-00031 (W.D. Va. Dec. 10, 2021), ECF No.

37 (the “Statutory Ruling”). On the other hand,

Liberty, by cross-appeal, challenges an earlier award

of summary judgment that was made to Palmer, in

which the court ruled that Palmer was not a

“minister” for purposes of the First Amendment’s socalled “ministerial exception.” See Palmer v. Liberty

Univ., Inc., No. 6:20-cv-00031 (W.D. Va. Dec. 1, 2021),

ECF No. 35 (the “Constitutional Ruling”).

As explained herein, we agree with the district

court that Palmer failed to produce sufficient evidence

of age-based discrimination to overcome Liberty’s

summary judgment motion on that issue.

Accordingly, we are satisfied to affirm the Statutory

Ruling in favor of Liberty. Moreover, in light of that

disposition — and pursuant to the constitutional

avoidance doctrine — we refrain from resolving

whether Palmer was a minister for purposes of the

First Amendment’s ministerial exception. As a result,

we are obliged to dismiss Liberty’s cross-appeal and

vacate the Constitutional Ruling.

Founded in 1971, Liberty is a Christian higher

education institution located in Lynchburg, Virginia.1

With approximately 13,000 students enrolled at the

main campus — and an additional 90,000 students

attending online — the educational courses at Liberty

“are taught from a biblical worldview and [are]

designed in line with [the University’s] mission to

1 We accept and recite herein the relevant facts — as the district

court was obliged to do — in the light most favorable to Palmer,

as the nonmoving party, with respect to Liberty’s summary

judgment motion on Palmer’s ADEA claim. See T.H.E. Ins. Co.

v. Davis, 54 F.4th 805, 812 n.2 (4th Cir. 2022) (citing Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88

(1986)).

develop Christ-centered men and women.” See J.A.

41.2 To that end, the faculty members are considered

by Liberty to be “messengers of Liberty’s Christian

worldview,” with the expectation that they

incorporate Christian principles into teaching. Id. at

166.

For her part, Palmer — a self-professed follower of

Christ — was an art professor at Liberty for more

than 30 years, from 1986 to 2018. Palmer began

teaching at Liberty as a part-time art instructor in

1986, and was soon thereafter promoted to a full-time

position. In 1992, Palmer was elevated to the rank of

“Assistant Professor,” which she maintained until her

promotion to “Associate Professor” in 2006. Finally, as

discussed herein, Palmer was promoted to “Full

Professor” in October 2016. During her career at

Liberty, Palmer taught “studio art courses” — i.e.,

traditional “ink and pen” art, such as painting,

pottery, and ceramics — in the Studio & Digital Arts

Department (the “Department”), a part of Liberty’s

School of Visual and Performing Arts (“SVPA”). While

employed by Liberty, Palmer did not teach classes in

the “digital arts,” an area focusing on topics such as

graphic design, production technology, digital

illustration, and digital imaging.

For context, Liberty promotes its faculty members

(nearly all of whom are employed on an annual basis

and serve without tenure) based on certain specified

criteria. As relevant here, for a faculty member to be

2 Citations herein to “J.A. ___” refer to the contents of the Joint

Appendix filed by the parties in this appeal.

10a

elevated to Full Professor — the highest faculty rank

attainable at Liberty — the faculty member must

have, inter alia, “at least five (5) years of successful

teaching experience at the associate professor rank.”

See J.A. 1328. Liberty faculty members are obliged to

demonstrate “recent scholarly or professional

productivity . . . in significant regional or national

forums,” including by publishing

successful textbooks, scholarly monographs,

scholarly articles in journals published with

peer review, numerous articles in non-refereed

professional magazines, numerous articles in

high quality magazines aimed at segments of

the general public, successful artistic

performances (as recognized by other

professionals in one’s field), books, articles, and

creative performances actually published,

presented, or under contract.

Id. at 1328-29.

In addition to the above-referenced criteria for

promotion, Liberty faculty members receive annual

performance evaluations based on what is called a

“Faculty Portfolio” (the “Portfolio”). See J.A. 917. The

Portfolio consists of nine specified criteria, but only

the first of those — entitled “Operational elements of

instruction/administration” — is pertinent here. That

criterion asks the following question: “When teaching,

do you record grades in Blackboard, return

assignments and answer email in a timely fashion,

use technology in a manner appropriate to the

discipline, and meet all instruction-related

deadlines?” Id. at 1331 (emphasis added).

The Portfolio requires a faculty member to

initially conduct a self-evaluation of his or her own

11a

performance. Those self-evaluations are then

reviewed by the faculty member’s department chair,

who

provides

additional

comments

and

recommendations. At the final step in the evaluation

process, the department chair’s submissions are

reviewed by the appropriate dean and, if necessary,

supplemented with further recommendations.

According to University policy and procedures, faculty

members

are

expected

implement

recommendations they receive in the Portfolio. Here,

Palmer reported directly to a Liberty official named

Smith, who served as Chair of the Department. Chair

Smith reported directly to a Dean named Hayes, who

had been for a time an Associate Dean of the SVPA,

but in 2018 was elevated to the role of SVPA Dean.

And as SVPA Dean, Hayes reported directly to Dr.

Hicks, the Provost of Liberty.

Starting in 2013, Palmer — then an Associate

Professor — applied for promotion to the academic

rank of Full Professor. Initially, Palmer’s promotion

efforts were unsuccessful, primarily due to her low

rate of producing scholarly works and publications.

Around that time, in an effort to facilitate her

promotion, Palmer worked with her supervisors —

Department Chair Smith and Dean Hayes — to

develop a so-called “Professional Development Plan”

(the “Promotion Plan”). Broadly speaking, the

Promotion Plan spelled out the expectations that

Palmer had to satisfy to become a Full Professor. The

Promotion Plan primarily emphasized that Palmer

needed to substantially increase her scholarly output.

Meanwhile, in another section entitled “Regarding

Technology,” the Promotion Plan related that Palmer

should also work toward developing a digital art

12a

skillset and improve her technology skills.

Recognizing that she needed to develop those types of

digital art skills, Palmer likewise established

personal “goals for improvement” related to

technology. See J.A. 1134.

From 2014 to 2016, Palmer worked toward

meeting the goals set forth in the Promotion Plan.

Perhaps most important, Liberty administrators

recognized that Palmer had substantially increased

her scholarly work and presented her work at peerreviewed conferences. As a result, Palmer was

promoted to Full Professor in October 2016 — at the

age of 77. At that time, Dean Hayes — who supported

Palmer’s

promotion

efforts

—

correspondence that Palmer had “satisfactorily

completed a three-year plan to increase . . . the

quantity and quality of her creative output, exhibit

her work, present at peer-reviewed conferences,

publish as appropriate, improve her teaching, and

meaningfully participate in . . . university functions.”

See J.A. 979.

Around that same time period, Palmer also

received annual Portfolio evaluations. Those

evaluations — which contained recommendations

from Department Chair Hayes and Dean Smith —

recurrently emphasized the need for Palmer to

improve her technology and digital art skills in order

to teach digital art courses and to incorporate

technology into her existing courses. See J.A. 938-39

(2013-14 Portfolio comment by Chair Smith

recommending that Palmer “continue [taking]

technology courses” and make improvements

regarding “incorporation of educational technology”

into courses); id. at 940 (2014-15 Portfolio notation by

Chair Smith rating Palmer as “Below Expectations”

13a

and recommending that Palmer “further develop her

skills in essential areas related to digital technology

and communication”); id. at 941 (2015-16 Portfolio

notation by Chair Smith rating Palmer as “Below

Expectations”

area

technology

and

recommending that Palmer “further develop her

skills in essential areas related to digital technology”);

id. at 945-946 (2016-17 Portfolio comment by Dean

Hayes recognizing continued and ongoing issues with

Palmer’s teaching style); id. at 946 (2017-18 Portfolio

comment by Palmer herself that she was continuing

to “learn and utilize new technologies” in her courses);

but see id. at 949 (2017-18 Portfolio comment by Dean

Hayes advising of “significant criticisms” relating to

Palmer’s “teaching style effectiveness”).

Following Palmer’s promotion to Full Professor in

October 2016, Liberty experienced an increase in

demand for digital art courses, along with a related

need for instructors and professors qualified to teach

such courses. Notwithstanding extensive Portfolio

recommendations that Palmer bolster her technology

and digital art skills, along with Palmer’s promise to

improve those skills, she was nonetheless not

qualified in the Fall of 2017 to teach digital art

courses for Liberty.

Beginning in the Fall of 2017, Department Chair

Smith and Dean Hayes expressed reservations about

whether Palmer’s teaching contract should be

renewed for the upcoming 2018-19 school year. In

November 2017, the Dean — in consultation with the

Chair — resolved that Palmer’s contract for the

upcoming school year should not be renewed. That

decision, according to both administrators, was

14a

predicated on the Department’s need to hire more

“cross-over” faculty members — i.e., those who could

teach both studio and digital arts courses, either in

person or online. To that end, the Dean and Chair

assessed how they would handle Palmer’s notice of

nonrenewal. The two administrators discussed the

possibility that Palmer could retire instead of facing

nonrenewal (although Smith and Hayes had not

discussed that option with Palmer, and she had

otherwise not indicated any desire to retire).

Following up on those deliberations, Chair Smith sent

Dean Hayes a document identifying Palmer as

“Retiring” for the 2018-19 school year, as opposed to

indicating a “Non-Renewal.” See J.A. 1341 (the “first

retirement comment”).

By correspondence of November 30, 2017, Dean

Hayes formally notified Provost Hicks about the

nonrenewal recommendation for Palmer, specifying

two supporting reasons. First, the Dean related that

Palmer was not qualified to teach digital arts courses

— which were courses where Liberty was “struggling”

to meet an increase in student demand — despite

persistent Portfolio recommendations by the Dean

and the Chair that Palmer “gain further skills with

digital design software.” See J.A. 988. Second, the

Dean underscored that Palmer was not qualified to

teach any courses on Liberty’s online platform. Dean

Hayes also informed the Provost that Palmer was the

only faculty member in the Department who had not

taught digital art courses for Liberty, and who did not

possess the requisite technology skills to teach such

courses.

Furthermore, the Dean’s November 2017

correspondence explained the discrepancy between

his October 2016 suggestion that Palmer be promoted

15a

to Full Professor, and his November 2017

recommendation against renewing Palmer’s teaching

contract. Dean Hayes recognized that “Palmer was

promoted last year” to Full Professor because of a

“three year trend in her academic scholarship.” See

J.A. 988. But he observed that Palmer’s “scholarship

[had] not resulted in improving the range of

content . . . [she] can teach for [the Department],”

including online and digital arts-based courses. Id.

Soon thereafter, Provost Hicks suggested to Dean

Hayes the possibility of giving Palmer a year to

improve her technology and digital art skills, or

consequently face nonrenewal for the following 201920 school year. The Dean rejected the Provost’s

suggestion in a December 2017 email, relating that

Palmer would “have great difficulty with any changes,

and this would most likely exacerbate negative

student experiences.” See J.A. 1409 (the “resistant-tochange comment”). A few months later, in March

2018, the Provost remarked that he would consider

characterizing Palmer’s forthcoming nonrenewal as a

“retirement,” but only if Palmer brought up an issue

of retirement in response to the nonrenewal. See J.A.

1340-43, 1329 (the “second retirement comment”).

In April 2018, Liberty notified Palmer — who was

then 79 years old — that her teaching contract would

not be renewed for the upcoming 2018-19 school year.

Although Palmer responded unfavorably to the

nonrenewal notice, she did not raise any issue about

retirement. Accordingly, Liberty did not give Palmer

16a

the option of retiring before her termination, which

occurred at the end of May 2018.3

After exhausting her administrative remedies

with

the

Equal

Employment

Opportunity

Commission, Palmer initiated this lawsuit in the

Western District of Virginia in March 2020. See

Palmer v. Liberty Univ., Inc., No. 6:20-cv-00031 (Mar.

20, 2020), ECF No. 1. Her complaint — which solely

pursues an ADEA claim of unlawful age

discrimination — alleges that Liberty “discriminated

against Palmer” by not “renew[ing] her employment

contract for bogus reasons.” Id. at 5.

After extensive discovery proceedings, Liberty

moved for summary judgment in July 2021. In

support of that request, Liberty asserted that the

ministerial exception — an affirmative defense to

liability rooted in the First Amendment — serves to

bar Palmer’s ADEA lawsuit from being pursued in

federal court.4 Liberty maintained that Palmer (as an

3 Following Palmer’s April 2018 nonrenewal, Liberty posted a job

listing seeking an art instructor with “some experience in studio

art,” along with “expertise in one of the following: graphic design,

animation, motion graphics, UI/UX design, responsive web

(Continued)

4 As the Supreme Court has recognized, the First Amendment’s

ministerial exception “precludes application of [employmentdiscrimination] legislation to claims concerning the employment

relationship between a religious institution and its ministers.”

See Hosanna-Tabor Evangelical Lutheran Church & Sch. v.

EEOC, 565 U.S. 171, 188 (2012). The exception “operates as an

affirmative defense to an otherwise cognizable claim, not a

jurisdictional bar[,] . . . because [it concerns] ‘whether the

allegations the plaintiff makes entitle him to relief,’ not whether

17a

art Professor at Liberty) qualifies as a minister under

the legal principles established by the Supreme

Court’s

recent

decisions

Hosanna-Tabor

Evangelical Lutheran Church & School v. Equal

Employment Opportunity Commission, 565 U.S. 171

(2012), and Our Lady of Guadalupe v. MorrisseyBeru, 140 S. Ct. 2049 (2020). Meanwhile, Palmer filed

in July 2021 a cross-motion for summary judgment on

the ministerial exception constitutional issue,

maintaining that she was not a minister — either

formally or informally — while employed by Liberty.

In November 2021, Liberty filed another motion

for summary judgment, addressing the merits of

Palmer’s ADEA claim. More specifically, Liberty

asserted that the ADEA claim fails as a matter of law,

in that Palmer did not produce sufficient direct or

circumstantial evidence of age-based discrimination

by Liberty to warrant a jury trial.

The district court resolved the parties’ summary

judgment motions by separate rulings rendered in

December 2021. First, by its Constitutional Ruling,

the court granted Palmer’s motion for summary

judgment, concluding that Palmer was not a minister

for purposes of the ministerial exception. Second, by

its Statutory Ruling, the court awarded summary

judgment to Liberty, rejecting Palmer’s ADEA claim

on its merits.

the court has ‘power to hear the case.’” Id. (quoting Morrison v.

Nat’l Australia Bank Ltd., 561 U.S. 247, 254 (2010)).

18a

By its Constitutional Ruling of December 1, 2021,

the district court determined that, pursuant to the

Supreme Court’s decisions in Hosana-Tabor and Our

Lady of Guadalupe, Palmer was not a minister during

her teaching career at Liberty, and thus ruled that

the ministerial exception does not bar her ADEA

claim. As the Ruling explained, “Liberty never

referred to [Palmer] as a ‘minister,’ ‘chaplain,’ ‘pastor,’

or any other similar term.” See Constitutional Ruling

9-10. The court also related that, “[a]lthough [Palmer]

led students in prayer before class, the evidence . . .

does not support that [Palmer] did anything more

ministerial, such as taking students to church

services or giving religious lessons.” Id. at 15. Thus,

the court concluded that Palmer was not a minister

for purposes of the First Amendment’s ministerial

exception.

By its Statutory Ruling of December 10, 2021, the

district court awarded summary judgment to Liberty

on Palmer’s lone claim of ADEA age discrimination.

On that score, the Statutory Ruling addressed and

resolved, inter alia, two related issues: “(1) whether

Palmer has established direct evidence of [age]

discrimination; [and] (2) if she has not established

direct evidence, whether she has established

sufficient indirect evidence to make out a prima facie

employment discrimination case under the analysis

laid out in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973).” See Statutory Ruling 2.

In explaining its Statutory Ruling, the district

court first concluded that Palmer had failed to

produce any direct evidence of age discrimination. In

19a

the court’s view, the direct evidence that Palmer

offered — i.e., the notations that Palmer was

“retiring” and Hayes’s comment that Palmer would

“have great difficulty with any changes,” see J.A. 948,

1409 — did not “‘reflect directly the alleged

discriminatory attitude’” of Liberty, nor did they

“‘bear directly on the contested employment

decision,’” see Statutory Ruling 9-10 (quoting Warch

v. Ohio Cas. Ins. Co., 435 F.3d 510, 520 (4th Cir.

2006)). Nevertheless, the court recognized that, if

those

comments

did

“reflect

age-based

discrimination,” Palmer yet could not show “that her

age was the but-for cause of her . . . non-renewal.” Id.

at 12 (citing Gross v. FBL Fin. Serv., Inc., 557 U.S.

167, 177-78 (2009)). The court emphasized that

“Liberty’s evidence about terminating Palmer for

being unable to teach digital arts courses is a

legitimate motivation and Palmer has not offered

sufficient evidence to show that Liberty’s stated

reason was not the reason for her termination.” Id. at

13.

The district court then assessed whether Palmer’s

age discrimination claim could be premised on a

theory of circumstantial evidence. Against the

backdrop of the Supreme Court’s 1973 McDonnell

Douglas decision — which requires a plaintiff to

initially make a prima facie case in order to proceed

under that evidentiary theory — the court reasoned

that, although Palmer was a “member of a protected

class” (i.e., age 40 or older), had “suffered an adverse

employment action,” and was “replaced by or treated

less favorably than someone outside the protected

class or someone substantially younger,” she had

failed to meet Liberty’s legitimate expectations at the

time of her 2018 nonrenewal because she failed to

20a

develop a digital art skillset. See Statutory Ruling 1314.

In that regard, the Statutory Ruling emphasized

that, although Department Chair Smith and Dean

Hicks repeatedly “prompt[ed] Palmer to develop a

digital art skillset” by way of the Portfolio, she “never

developed that skillset.” See Statutory Ruling 14. As

to Palmer’s claim that she “was not aware of the full

extent of Liberty’s dissatisfaction with her

performance,” the court deemed that fact as

“irrelevant to the ADEA analysis because ‘it is the

perception of the decision maker which is relevant,

not the self-assessment of the plaintiff.’” Id. (quoting

Hawkins v. PepsiCo, Inc., 203 F.3d 274, 280 (4th Cir.

2000)). Because Palmer failed to make a prima facie

case of age discrimination, the court concluded that

her ADEA claim could not proceed on a circumstantial

evidence theory. On those bases, the Statutory Ruling

awarded summary judgment to Liberty.

In December 2021, Palmer timely appealed from

the Statutory Ruling. That appeal was filed in this

Court as Appeal No. 21-2390. Two weeks thereafter,

on December 29, 2021, Liberty noticed its crossappeal of the Constitutional Ruling. Liberty’s appeal

was filed as Appeal No. 21-2434. We have

consolidated those appeals, and we possess

jurisdiction over them pursuant to 28 U.S.C. § 1291.

II.

We review an award of summary judgment de

novo. See Bright v. Coastal Lumber Co., 962 F.2d 365,

368 (4th Cir. 1992). Summary judgment is only

appropriate when — viewing the facts in the light

21a

most favorable to the nonmoving party (here, Palmer)

— the moving party (Liberty) has demonstrated that

“‘there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of

law.’” See FDIC v. Cashion, 720 F.3d 169, 173 (4th

Cir. 2013) (quoting Fed. R. Civ. P. 56(a)).

III.

On appeal, Palmer contends that we should vacate

the Statutory Ruling and remand to the district court

for a jury trial on her age discrimination claim. More

specifically, Palmer maintains that she presented

both direct and circumstantial evidence of age-based

discrimination by Liberty, and that the district court

thus erred in awarding summary judgment to Liberty

on her ADEA Claim. Meanwhile, despite urging

affirmance as to the Statutory Ruling, Liberty urges

in its cross-appeal that we should reverse the

Constitutional Ruling and decide that Palmer was a

minister under the First Amendment.

As explained below, Palmer has failed to produce

direct or circumstantial evidence of age-based

discrimination by Liberty. Accordingly, we are obliged

to affirm the Statutory Ruling. In light of that

affirmance, we will adhere to the constitutional

avoidance doctrine and not address the constitutional

question of whether Palmer was a minister during her

teaching career at Liberty.

We begin our analysis with Palmer’s appellate

challenge to the propriety of the Statutory Ruling.

Under the ADEA, an employer may not “discharge

any individual or otherwise discriminate against any

22a

individual . . . because of such individual’s age.” See

29 U.S.C. § 623(a)(1). An employee who alleges that

her employer violated that prohibition “must prove by

a preponderance of the evidence (which may be direct

or circumstantial), that age was the ‘but-for’ cause of

the challenged employer decision.” See Gross v. FBL

Fin. Servs., Inc., 557 U.S. 167, 177-78 (2009). That is,

“an employee cannot prevail . . . by showing that age

was one of multiple motives for an employer’s

[adverse employment] decision; the employee must

prove that the employer would not have fired her in

the absence of age discrimination.” See Westmoreland

v. TWC Admin. LLC, 924 F.3d 718, 725 (4th Cir. 2019)

(internal quotation marks omitted).

Direct evidence of age discrimination has been

described in the employer/employee context as

evidence that the employer “announced, or admitted,

or otherwise unmistakably indicated that age was a

determining factor.” See Cline v. Roadway Express,

Inc., 689 F.2d 481, 485 (4th Cir. 1982). In other words,

the requisite direct evidence in an ADEA case is

“evidence of conduct or statements that both reflect

directly the alleged discriminatory attitude and that

bear directly on the contested employment decision.”

See Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 520

(4th Cir. 2006) (internal quotation marks omitted).

If a plaintiff cannot produce direct evidence of agebased discrimination, an ADEA claim can

nevertheless be pursued under a circumstantial

evidence theory. See McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 801-02 (1973); Mereish v. Walker,

359 F.3d 330, 333-35 (4th Cir. 2004) (applying

McDonnell Douglas framework to ADEA claim). To

proceed thereunder, three steps must be satisfied:

23a

(1) the plaintiff must first establish a prima

facie case of [age discrimination]; (2) the

burden of production then shifts to the

employer to articulate a nondiscriminatory or

non-retaliatory reason for the adverse action;

(3) the burden then shifts back to the plaintiff

to prove by a preponderance of the evidence

that the stated reason for the adverse

employment action is a pretext and that the

true reason is discriminatory.

See Guessous v. Fairview Prop. Invs., LLC, 828 F.3d

208, 216 (4th Cir. 2016).

On the first step, the plaintiff can make a prima

facie case of age discrimination by demonstrating that

“(1) [she] is a member of a protected class, (2) [she]

suffered an adverse employment action (such as

discharge), (3) [she] was performing [her] job duties

at a level that met the employer’s legitimate

expectations at the time of the adverse employment

action, and (4) [her] position remained open or was

filled by a similarly qualified applicant outside the

protected class.” See Baqir v. Principi, 434 F.3d 733,

742 (4th Cir. 2006). Of importance, if the plaintiff fails

to make the requisite prima face case, our inquiry

under the McDonnell Douglas framework ends at step

one. See King v. Rumsfeld, 328 F.3d 145, 150 (4th Cir.

2003) (concluding that employer did not need to

supply explanation for adverse employment action

because plaintiff failed to make prima facie case).

Against this backdrop of controlling legal

principles, we will first assess whether Palmer

produced direct evidence of age discrimination to

pursue her ADEA claim in federal court. Because she

24a

has not, we will then assess whether Palmer has

produced circumstantial evidence of age-based

discrimination — more specifically, whether she has

made a prima facie case of age discrimination under

the McDonnell Douglas framework.

We have no trouble agreeing with the district

court’s conclusion in its Statutory Ruling that Palmer

failed to produce direct evidence of age

discrimination. As in the district court proceedings,

Palmer emphasizes on appeal the first and second

retirement comments made by the Dean and the

Provost — along with the Dean’s resistant-to-change

comment — as constituting direct evidence of age

discrimination. According to Palmer, those comments

demonstrate that Liberty harbored age-based animus

towards her and did not renew her contract on

account of her age. As explained further below, we

disagree.

Starting with the retirement comments, at least

two of our sister circuits have concluded that mere

comments or inquiries about retirement — without

more — fail to constitute direct evidence of age

discrimination. See Moore v. Eli Lilly & Co., 990 F.2d

812, 818 (5th Cir. 1993) (resolving that employer’s

questions about employee’s age and retirement plans

did not reveal discriminatory intent); Woythal v. TexTenn Corp., 112 F.3d 243, 247 (6th Cir. 1997)

(concluding that employer’s questions about

employee’s retirement “do not amount to evidence”

that age was motivation for termination); Lefevers v.

GAF Fiberglass Corp., 667 F.3d 721, 724 (6th Cir.

2012) (recognizing that “questions concerning an

25a

employee’s retirement plans do not alone constitute

direct evidence of age discrimination”). We agree with

and adopt that well-reasoned proposition. As applied

to the facts here, neither the first nor the second

retirement comments amount to direct evidence of

age-based discrimination that is attributable to

Liberty.

For starters, the retirement comments were not

actually presented to Palmer — rather, they were

made by the Dean and by the Provost of Liberty

during internal deliberations about how to handle

Palmer’s nonrenewal if she brought up the possibility

of retirement. Second, even if those comments had

been addressed directly to Palmer, they were devoid

of any reference to Palmer’s age. See Halloway v.

Milwaukee Cnty., 180 F.3d 820, 825 (7th Cir. 1999)

(recognizing that employer’s requests that employee

retire are not reference to age). And on this record,

neither the first nor the second retirement comments

— without more — constitute direct evidence of agebased discrimination by Liberty.

Our conclusion that the retirement comments do

not amount to direct evidence of age discrimination

also finds support in a 1997 Seventh Circuit decision.

See Kaniff v. Allstate Insurance Co., 121 F.3d 258 (7th

Cir. 1997). In Kaniff, a supervisor suggested that the

plaintiff retire after the defendant learned that the

plaintiff was not adequately performing. The Kaniff

plaintiff asserted that the supervisor’s comment

amounted to direct evidence of age-based

discrimination. The court of appeals disagreed,

however, emphasizing that “the suggestion of

retirement was made only after” the company had

determined that the plaintiff was not performing

adequately. Id. at 263. As the Seventh Circuit

26a

explained, “the possibility of retirement was raised by

[the employer] only in order to spare [the employee]

the embarrassment of being terminated.” Id. Similar

to that decision, Dean Hayes and Provost Hicks

contemplated retirement as an option if Palmer

brought up that issue as an alternative to

nonrenewal. Most notably — and again similar to the

facts underlying Kaniff — the retirement comments

emphasized here were made after the Dean and the

Provost had concluded that Palmer was not meeting

the University’s legitimate technology-related

expectations.5

ii.

Moving on, the resistant-to-change comment made

by Dean Hayes in December 2017 also does not

constitute direct evidence of age discrimination.

Specifically, the Dean’s comment does not “reflect

directly the alleged discriminatory attitude” of

Liberty. See Warch, 435 F.3d at 520. Similar to the

two retirement comments, the resistant-to-change

comment was not connected to Palmer’s age. We agree

with the district court’s cogent point that “Palmer

provides no evidence that Liberty believed Palmer

was resistant to change solely, or even partially,

because of her age.” See Statutory Ruling 12. Rather,

5 Addressing the two retirement comments, the Statutory Ruling

explained that Palmer’s case was not a “forced retirement,”

which the district court acknowledged can be “impermissible

under the ADEA.” See Statutory Ruling 11 (internal quotation

marks omitted). We agree with that assessment. Indeed,

“Liberty only contemplated offering Palmer the opportunity to

retire after . . . deciding that it would terminate her for not

developing digital skills.” Id. (emphasis added). Thus, it cannot

be said that Liberty “forced” Palmer to retire from her position

as an art professor.

27a

“Liberty believed that Palmer was resistant to change

because of her demonstrated failure to develop digital

skills after her supervisors repeatedly advised her to

do so.” Id.

Despite Palmer’s inability to present direct

evidence of age discrimination on the part of Liberty,

we must — pursuant to the McDonnell Douglas

framework — also assess whether her ADEA claim

can be premised on a circumstantial evidence theory.

On that score, the parties mainly dispute whether

Palmer has satisfied the third element of the prima

facie case — whether she “was performing [her] job

duties at a level that met the employer’s legitimate

expectations at the time” of her nonrenewal. See

Baqir, 434 F.3d at 742.6 To satisfy that factor, “a

plaintiff need not ‘show that she was a perfect or

model employee.’” See Sempowich v. Tactile Sys.

Tech., Inc., 19 F.4th 643, 650 (4th Cir. 2021) (quoting

Haynes v. Waste Connections, Inc., 922 F.3d 219, 225

(4th Cir. 2019)). Rather, “a plaintiff must show that

she was qualified for the job and that she was meeting

her employer’s legitimate expectations.” Id. (quoting

Haynes, 922 F.3d at 225).

On appeal, Palmer maintains that she was

meeting Liberty’s legitimate expectations at the time

of her 2018 nonrenewal. For support, Palmer

In the district court, Liberty argued that Palmer could not

prove the fourth element of a prima facie case — i.e., that her

“position remained open or was filled by a similarly qualified

applicant outside the protected class.” See Baqir, 434 F.3d at

742. Although the court ruled that Palmer satisfied the fourth

element, Liberty does not challenge on appeal that aspect of the

Statutory Ruling.

28a

emphasizes her October 2016 promotion to Full

Professor, arguing that the 2016 promotion

demonstrates her adequate performance at the time

of her 2018 nonrenewal. Additionally, Palmer

maintains that, in light of her 2016 promotion, she

had no reason to believe that she was otherwise

failing to meet Liberty’s technology-related

expectations. Meanwhile, Liberty takes the position

that, although Palmer had been promoted to Full

Professor in October 2016, she still did not satisfy

Liberty’s legitimate expectations at the time of her

2018 nonrenewal because of her failure to develop

technology or digital art skills. According to Liberty,

the record indisputably reflects that two of the

Liberty administrators — Dean Hayes and

Department Chair Smith — repeatedly informed

Palmer that she needed to improve her technology

and digital art skills, but Palmer inexplicably failed

to develop those skills.

Put simply, we agree with the Statutory Ruling

that Palmer was not meeting Liberty’s legitimate

expectations at the time of her 2018 nonrenewal. As

the district court aptly recognized, “Liberty has put

forward substantial evidence documenting repeated

attempts to prompt Palmer to develop a digital art

skillset,” but Palmer “never developed that skillset.”

See Statutory Ruling 14. Indeed, the Portfolio

evaluations — along with Palmer’s own self-imposed

“goals for improvement” — reflect as much. See J.A.

1134. Those notations tellingly reveal that the Liberty

administrators repeatedly urged Palmer to develop a

digital art skillset, and that Palmer was aware of that

necessity. Yet Palmer failed to develop the requested

skillset, either before or after her October 2016

promotion.

29a

That

conclusion

notwithstanding,

Palmer

staunchly insists that her October 2016 promotion to

Full Professor — standing alone — creates a genuine

dispute of fact that precludes the Statutory Ruling’s

award of summary judgment to Liberty. Palmer

suggests that her promotion “wiped the slate clean,”

and that any pre-promotion performance evaluations

are irrelevant to the analysis of her case. But Palmer’s

“clean slate” contention suffers from at least two

crucial infirmities. First, that contention is

temporally flawed. That is, Palmer has failed to

explain why her performance in October 2016 means

that she was performing adequately at the time of her

nonrenewal — which was in April 2018.

Second, Palmer’s “clean slate” contention

overlooks the undisputed fact that, after her October

2016 promotion to Full Professor, Dean Hayes and

Department Chair Smith had ongoing concerns about

her lackluster technology and digital art skills. For

example, in the 2016-17 Portfolio evaluation, the

Dean pointed out that there were recurring issues

with Palmer’s “teaching style.” See J.A. 946. And in

the 2017-18 Portfolio evaluation, although Palmer

claimed she was “learn[ing] and utliz[ing] new

technologies,” the Dean directly rebuffed that

comment, stating that “significant criticisms [exist]

pertaining to [Palmer’s] communication and teaching

style effectiveness.” Id. at 946, 949.

Resisting our conclusion that she was not meeting

Liberty’s legitimate expectations at the time of her

nonrenewal, Palmer points to our 2021 decision in

Sempowich v. Tactile Systems Technology. In

Sempowich, we concluded that a plaintiff-employee —

who had been repeatedly rated by her employer as a

high-performing employee — was satisfying the

30a

employer’s legitimate expectations at the time of an

adverse employment action. More specifically, we

recognized in Sempowich that, “[i]f an employer

genuinely believed that one of its employees was

performing poorly on metrics the employer perceives

as critical . . . it seems likely that it would at the very

least not rate the employee’s performance highly or

give her awards, a salary raise, or an equity grant.”

See 19 F.4th at 650. And we explained that those

positive evaluations and accolades — which were

bestowed upon the Sempowich plaintiff mere “weeks

before” the adverse employment action — “raised [a]

reasonable inference . . . that [the employee] was

performing at a satisfactory level.” Id. at 650-51

(internal quotation marks omitted). By contrast,

Palmer was simply not meeting Liberty’s technologyrelated expectations up and until the time of her 2018

nonrenewal. Unlike in Sempowich, the lone accolade

that Palmer can point to — her October 2016

promotion — was bestowed upon her more than a year

before her nonrenewal. Thus, Palmer’s reliance on

Sempowich is misplaced.

Simply put, we agree with the Statutory Ruling

and Liberty that Palmer has failed to make a prima

facie case of age discrimination, in that Palmer cannot

show that she was meeting Liberty’s legitimate

expectations at the time of her 2018 nonrenewal. And

because Palmer is unable to proceed beyond the first

step of the McDonnell Douglas framework, her ADEA

claim also cannot be premised on a circumstantial

evidence theory.

Finally, Palmer’s ADEA claim suffers from yet

another infirmity: if Palmer had produced direct or

31a

circumstantial evidence of age discrimination, she

would nevertheless need to show that age was the

but-for cause of her nonrenewal. As discussed above,

the Supreme Court recognized in its 2009 Gross

decision that “the ADEA’s text does not provide that

a plaintiff may establish discrimination by showing

that age was simply a motivating factor.” See 557 U.S.

at 173. Rather, “the plaintiff retains the burden of

persuasion to establish that age was the ‘but-for’

cause of the employer’s adverse action.” Id. at 177.

Pursuant to Gross, the “employee must prove that the

employer would not have fired her in the absence of

age discrimination,” not prove that “age was one of

multiple motives” for the adverse employment

decision. See Westmoreland, 924 F.3d at 725.

Stated succinctly, Palmer has failed to

demonstrate that age was the but-for cause of her

2018 nonrenewal. Palmer was not meeting Liberty’s

legitimate expectations at the time of her nonrenewal,

in that she repeatedly failed to develop a digital art

skillset. And Palmer has failed to contend with the

fact that the comments she characterizes as evidence

of age discrimination — the retirement comments

plus the resistant-to-change comment — were made

subsequent to the Chair and the Dean having

resolved not to renew her teaching contract for the

2018-19 school year. Thus, it cannot be said that

Liberty “would not have fired [Palmer] in the absence

of age discrimination.” See Westmoreland, 924 F.3d at

725.

***

In sum, because Palmer has failed to produce

either direct or circumstantial evidence of age-based

discrimination, Liberty is entitled to summary

32a

judgment on her ADEA claim. As such, we are

constrained to affirm the Statutory Ruling.7

We turn next to Liberty’s cross-appeal — that is,

Appeal No. 21-2434 — relating to the Constitutional

Ruling. Although Liberty concedes that we could

resolve this litigation in its favor simply by affirming

the Statutory Ruling, it prefers that we also decide

whether Palmer was a minister under the First

Amendment’s ministerial exception. Pursuant to the

constitutional avoidance doctrine, however, we

decline Liberty’s invitation to render an advisory

opinion on that issue.

As the Supreme Court has recognized, “[i]t is a

well[-]established principle governing the prudent

exercise of . . . jurisdiction that normally [a federal

court] will not decide a constitutional question if there

is some other ground upon which to dispose of the

case.” See Escambia Cnty. v. McMillan, 466 U.S. 48,

51 (1984) (citing Ashwander v. Tenn. Valley Auth.,

297 U.S. 288, 347 (1936) (Brandeis, J., concurring)).

To that end, Justice Brandeis emphasized in his

7 Despite concluding that Palmer cannot make a prima facie

case, the district court proceeded to analyze the second and third

steps of the McDonnell Douglas framework — whether Liberty

had articulated a legitimate nondiscriminatory reason for the

nonrenewal decision and, if it had articulated such reasons,

whether Palmer could show that Liberty’s proffered reason was

pretextual. Although we appreciate the able judge’s thorough

reasoning, Palmer simply cannot make a prima facie case of age

discrimination, in that she failed to meet Liberty’s legitimate

expectations at the time of her 2018 nonrenewal. Accordingly,

we refrain from analyzing the second and third steps of the

McDonnell Douglas framework. See King, 328 F.3d at 150.

33a

landmark Ashwander concurrence that “if a case can

be decided on either of two grounds, one involving a

constitutional question, the other a question of . . .

general law, the Court will decide only the latter.” See

297 U.S. at 347 (Brandeis, J., concurring). Almost a

century later, that “cardinal principle of judicial

restraint” stands for a wholly uncontroversial

proposition. See PDK Lab’ys Inc. v. U.S. Drug Enf’t

Admin., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts,

J., concurring). And as our distinguished Chief

Justice — then serving on a court of appeals —

explicitly recognized, “if it is not necessary to decide

more, it is necessary not to decide more.” Id.; see also

Casa de Maryland v. U.S. Dep’t of Homeland Sec., 924

F.3d 684, 706 (4th Cir. 2019) (applying constitutional

avoidance doctrine and declining to decide

constitutional question).

In these circumstances, we need not deviate from

the strictures of the constitutional avoidance doctrine

and decide whether Palmer was a minister for

purposes of the ministerial exception. Foremost, the

ministerial exception is an affirmative defense to

liability — not a jurisdictional bar — and there is no

controlling authority to otherwise suggest that such

an issue should be resolved in the first instance. To

that end, two of our sister circuits — in similar

circumstances — have invoked the constitutional

avoidance doctrine and declined to decide a

ministerial exception issue. See Headley v. Church of

Scientology Intern., 687 F.3d 1173, 1181 (9th Cir.

2012) (invoking constitutional avoidance doctrine and

declining to resolve ministerial exception issue); Penn

v. New York Methodist Hosp., 884 F.3d 416, 427 n.5

(2d Cir. 2018) (same). Our exercise of judicial

restraint in this situation is entirely consistent with

34a

the Supreme Court’s own preference: “[t]here will be

time enough to address the applicability of the

[ministerial] exception to other circumstances if and

when they arise.” See Hosanna-Tabor, 565 U.S. at

196.8

Although we are satisfied to adhere to the

constitutional avoidance doctrine in this situation, we

will briefly explain our decision to dismiss Liberty’s

cross-appeal of the Constitutional Ruling. As we

recognized in our Norfolk Southern precedent of 2010,

“[w]e are always obliged to assure ourselves that a

live dispute exists between the parties at all stages of

litigation.” See Norfolk S. Ry. Co. v. City of

Alexandria, 608 F.3d 150, 161 (4th Cir. 2010). To that

end, “[a] dispute is moot when the parties lack a

8 We pause to mention an important point: adherence to the

constitutional avoidance doctrine is not an indication — in any

way — of agreement with Judge Richardson’s unnecessary

assessment of the ministerial exception issue. See post at 42-56.

And that assessment is not authoritative in any manner. Rather,

in keeping with Ashwander and its progeny, we are obliged to

resolve this cross-appeal solely on the statutory ground that does

not implicate the constitutional question. More specifically, we

rule herein that Liberty is entitled to summary judgment on the

merits of Palmer’s ADEA claim, and we do not reach or resolve

the constitutional issue of whether that claim is barred by the

ministerial exception. To reiterate, as Justice Brandeis well

explained — and as a legion of subsequent decisions has

consistently confirmed — “if a case can be decided on either of

two grounds, one involving a constitutional question, the other a

question of . . . general law, the Court will decide only the latter.”

See Ashwander, 297 U.S. at 347 (Brandeis, J., concurring); see,

e.g., Escambia Cnty., 466 U.S. at 51; Casa de Maryland, 924 F.3d

at 706. In these circumstances, a court of appeals — much less a

lone appellate judge — does not possess a roving writ to

gratuitously decide an interesting constitutional issue.

35a

legally cognizable interest in the outcome.” Id.

(internal quotation marks omitted). And “the parties

lack such an interest when . . . our resolution of an

issue could not possibly have any practical effect on

the outcome of the matter.” Id. As we observed in

Norfolk Southern, “[t]he customary practice when a

case is rendered moot on appeal is to vacate the moot

aspects of the lower court’s judgment,” if the mootness

“occurred through happenstance, rather than through

the voluntary action of the losing party.” Id. at 161-62

(internal quotation marks omitted).

In these circumstances, a decision on the merits of

the Constitutional Ruling “could not possibly have

any practical effect on the outcome of the matter.” See

Norfolk S., 608 F.3d at 161. That is, the resolution of

a ministerial exception constitutional issue in this

case would necessarily “result in an advisory opinion

being rendered” on a moot issue. Id. at 162. And

although a party “may desire that we render an

opinion to satisfy [a] demand for vindication or

curiosity about who’s in the right and who’s in the

wrong, we may only decide cases that matter in the

real world.” Id. at 161 (internal quotation marks

omitted).

Finally, we recognize that Liberty’s cross-appeal

has been rendered moot “not by virtue of any

voluntary action of either party, but instead by the

vagaries of circumstance.” See Norfolk S., 608 F.3d at

162. As such, in addition to dismissing Liberty’s crossappeal, our Norfolk Southern precedent compels that

we vacate the unreviewed Constitutional Ruling. See

Goldman v. Brink, 41 F.4th 366, 369 (4th Cir. 2022)

(applying Norfolk Southern precedent, dismissing

appeal, and vacating “unreviewed” constitutional

ruling).

36a

IV.

Pursuant to the foregoing, we affirm the Statutory

Ruling, dismiss Liberty’s cross-appeal, and vacate the

Constitutional Ruling.

Appeal No. 21-2390 — AFFIRMED

Appeal No. 21-2434 — DISMISSED AND VACATED

37a

DIANA GRIBBON MOTZ, Senior Circuit Judge,

concurring:

I concur fully in Judge King’s excellent opinion for

the court, which thoroughly explains why the district

court properly granted summary judgment to Liberty

University on Eva Palmer’s age discrimination claim.

I write separately only in response to the discussion

of the ministerial exception in Judge Richardson’s

concurrence, with which I respectfully disagree. In my

view, this is not a case where the ministerial

exception would apply, and I want to avoid any

suggestion that this court would hold to the contrary.

First, a brief review of the pertinent facts.

Throughout Palmer’s more than three decades of

employment by Liberty and Liberty-affiliated

entities, she had always served as an art teacher.

Palmer’s educational background is in the arts: she

has a bachelor’s degree in education, with a

concentration in art, as well as two master’s degrees

in the fine arts. Before her nonrenewal, Palmer

worked in Liberty’s Studio & Digital Arts

Department, which was housed within the School of

Visual & Performing Arts. In this role, Palmer taught

traditional “studio arts” courses like painting,

pottery, and ceramics. As her recent course syllabi

confirm, she instructed her students on skills such as

“stretch[ing] and prim[ing] a canvas,” “[a]pplying

color theory in mixing paint,” and “[d]evelop[ing] a

design portfolio.”

Palmer never taught any courses on theology or

religion. Nor did she have any experience as a

minister. What is more, the position description for

Studio & Digital Arts faculty members is completely

38a

secular. For example, recent art faculty position

descriptions solicit applicants with a master’s degree

in the fine arts and expertise in “graphic design,

animation, motion graphics, UI/UX design,

responsive web design, and game design with some

experience in studio art.” The position description’s

“job summary” and list of qualifications do not

mention religion. Thus, as the district court noted,

“nothing in Palmer’s job description referred to

ministerial duties.” Palmer v. Liberty Univ., Inc., No.

20-31, 2021 WL 6201273, at *5 (W.D. Va. Dec. 1,

2021). In short, Palmer’s most recent job title,

“Professor of Art,” accurately and succinctly captures

the role she performed for Liberty.

Liberty, of course, is a private, Christian

university. In its faculty handbook, Liberty charges

its faculty with “impart[ing] to students a liberal arts

education which provides for academic, spiritual,

personal, and professional development.” The

handbook states further that Liberty faculty must “be

a model of biblical lifestyle, character, and

relationship in every aspect of [their] lives.”

Additionally, one of the nine specified criteria on

which Liberty faculty are evaluated is “Integration of

Biblical Worldview.” But as Liberty readily admits,

“[f]aculty are not expressly required to engage in

specific religious conduct in the classroom.” Liberty

Opening-Response Br. at 8.

Palmer considers herself “a follower of Jesus

Christ.” Palmer often began her class sessions by

“reading one or two verses from the Book of Psalms or

Proverbs,” albeit “without [further] comment or

discussion.” She would also “ask for prayer requests”

and pray with her students. Palmer did not, however,

deliver sermons or lead her students in Bible study.

39a

Indeed, as Palmer testified during a deposition,

“there’s no time in the classroom for teaching the

subject of art to teach Bible.” Thus, as the district

court concluded, the record provides “scant evidence

of [Palmer] actually integrating theological lessons

into her classes.” Palmer, 2021 WL 6201273, at *7.

Outside of the classroom, Palmer took advantage of

Liberty’s many faith offerings.1 She frequently

attended worship services and convocations. But

Palmer did not take her students to services and

convocations or sit with her students if they also

happened to be in attendance.

To summarize, it is undisputed that Palmer

herself is deeply religious and, because she worked at

a religious university, availed herself of the

opportunity to pray with her students and talk openly

about her faith in the classroom. But it is also

undisputed that Palmer was an art professor, that

Palmer never taught religion classes, that Liberty did

not require Palmer to engage in any specific religious

conduct in her capacity as an art professor, that

Palmer never considered herself a minister, and that

Liberty never held Palmer out as a minister.

Liberty and Judge Richardson contend that these

facts suffice to trigger the ministerial exception and

defeat Palmer’s age discrimination suit. Recent

Judge Richardson points out that Palmer “enrolled in the

university’s ‘Doctor of Ministry’ program, earning more than 30

credit hours towards her degree.” Conc. Op. at 51 n.4. This

simply evidences Palmer’s keen interest in the subject. The

record offers no indication that Liberty so much as encouraged

(let alone required) her to enroll in this program. Palmer

explained that she enrolled in the program not because she

wanted to become a minister, but because she wanted to study

the Bible in depth.

40a

guidance from the Supreme Court does not support

such an expansive view of the ministerial exception.

II.

Federal courts of appeals have long recognized a

ministerial exception to certain antidiscrimination

lawsuits between an employee and employer. See, e.g.,

EEOC v. Catholic Univ. of Am., 83 F.3d 455 (D.C. Cir.

1996); Scharon v. St. Luke’s Episcopal Presbyterian

Hospitals, 929 F.2d 360 (8th Cir. 1991); Natal v.

Christian and Missionary Alliance, 878 F.2d 1575 (1st

Cir. 1989). But the Supreme Court did not explicitly

endorse this exception until 2012 in Hosanna-Tabor

Evangelical Lutheran Church & School v. Equal

Employment Opportunity Commission, 565 U.S. 171

(2012). The Court further defined the contours of the

ministerial exception in the successor case of Our

Lady of Guadalupe School v. Morrissey-Berru, 140 S.

Ct. 2049 (2020).

Hosanna-Tabor and Our Lady of Guadalupe

clarify that the ministerial exception can apply even

when an employee, in addition to performing religious

functions, has substantial secular responsibilities. At

the same time, those cases make clear that the

ministerial exception does not apply to everyone

employed by a religious entity. See Our Lady of

Guadalupe, 140 S. Ct. at 2060 (“Under [the

ministerial exception], courts are bound to stay out of

employment disputes involving those holding

important positions with churches and other religious

institutions.”). After all, the ministerial exception’s

purpose is to ensure that religious institutions retain

ultimate authority over their relationship with

“certain key employees,” not to entirely insulate

41a

religious entities from generally applicable

antidiscrimination laws. See id. at 2055, 2060.

Those cases thus counsel that the ministerial

exception is just that — an exception, applicable only

to a subset of a religious entity’s employees. They do

not provide a basis to enlarge the ministerial

exception to cover this easily distinguishable case.

III.

Judge Richardson essentially concedes that

Palmer did not teach religion classes. See Conc. Op. at

53 (noting that “Palmer did not provide formal

religious instruction.”). And he expressly concedes

that she did not lead a religious organization, conduct

worship services, or preside over important religious

ceremonies and rituals. See id. at 50 n.3. Nonetheless,

he concludes that Palmer served as “an official

‘messenger’ of [Liberty’s] faith” and therefore is a

“‘minister’ for First Amendment purposes.” Id. at 42,

50.2 But this conclusion blinks at the facts presented

given the posture of this case, which comes to us as an

appeal from the grant of summary judgment to

Liberty. Accordingly, we must view the facts in the

light most favorable to Palmer and draw all

reasonable inferences in her favor. Given this

2 Judge Richardson insists that Palmer is a minister because

Liberty “expected Palmer to conform her classes to its religious

message, and to help it spread that message.” Conc. Op. at 50.

For support, he cites Liberty’s mission statement as reproduced

in its faculty handbook and website, and notes that faculty were

evaluated on, among other criteria, whether they integrate a

Biblical worldview into their “teaching/administrative

responsibilities.” Id. at 51. To be sure, these sources establish

that Liberty is a religious institution, but they do not establish

that Palmer’s day-to-day job rendered her a “key employee” who

would qualify as a minister.

42a

standard, the facts undeniably paint a picture of

Palmer’s role very different from that of the teachers

in Hosanna-Tabor and Our Lady of Guadalupe, and

therefore I cannot agree that the ministerial

exception would apply here.

When determining whether an employee of a

religious entity qualifies for the ministerial exception,

we must examine all the “circumstances of her

employment,” training our focus on “what [the]

employee does.” Hosanna-Tabor, 565 U.S. at 190; Our

Lady of Guadalupe, 140 S. Ct. at 2064.

As an art professor, Palmer taught “3D Art,”

“Painting I,” “Drawing I,” “Introduction to Design,”

and related courses. Her course syllabi confirm that

she taught the same sort of secular art lessons that

one would expect to receive at a public, nonreligious

university. Likewise, she graded her students on the

quality of original artwork they produced, as well as

certain written assignments about art. Palmer did

begin her classes with a short prayer and openly

discussed her belief in the existence of God, but unlike

the teachers in Hosanna-Tabor and Our Lady of

Guadalupe, Palmer did not teach religion classes.

Judge Richardson minimizes the undisputed fact

that Palmer never taught religion, contending that

this “single difference” should not matter in the end.

See Conc. Op. at 53. But it is noteworthy that Cheryl

Perich, Agnes Morrissey-Berru, and Kristen Biel —

the teachers in Hosanna-Tabor and Our Lady of

Guadalupe — were all considered “catechists,” i.e.,

teachers of religion. 565 U.S. at 178; 140 S. Ct. at

2057, 2066–67. Thus, while the Supreme Court has

declined to “adopt a rigid formula for deciding when

43a

an employee qualifies as a minister,” it has only

applied the ministerial exception to cases involving

“teachers at religious schools who [were] entrusted

with the responsibility of instructing their students in

the faith.” Our Lady of Guadalupe, 140 S. Ct. at 2055,

2062 (quoting Hosanna-Tabor, 565 U.S. at 190); see

also Hosanna-Tabor, 565 U.S. at 192 (emphasizing

that Perich, who “taught her students religion four

days a week,” served “[a]s a source of religious

instruction” and “performed an important role in

transmitting the Lutheran faith to the next

generation”).

Indeed, the Our Lady of Guadalupe majority

highlighted that Morrisey-Berru and Biel “were

Catholic elementary school teachers, which meant

that they were their students’ primary teachers of

religion.” 140 S. Ct. at 2067. The Court explained that

“[t]he concept of a teacher of religion is loaded with

religious significance,” noting that in scripture “Jesus

was frequently called rabbi,” which means teacher.

Id. Thus, the Supreme Court has made clear that one

important factor in determining the ministerial

exception’s applicability is whether an employee

provides religious instruction — and it is not one that

should be lightly disregarded. Accordingly, even if not

dispositive, it is highly relevant that Palmer did not

teach religion. See id. at 2057, 2067 (emphasizing that

Morrissey-Berru and Biel were “responsible for the

faith formation of the students in their charge”).

Moreover, contrary to my concurring friend’s

suggestion, the fact that Palmer did not teach religion

is not “the only major difference” between this case

and Our Lady of Guadalupe. See Conc. Op. at 53. The

44a

two teachers in Our Lady of Guadalupe prepared

their students to participate in Mass, communion,

and confession; both teachers were evaluated on

whether they had religious signs and displays in their

classrooms; and both attended religious services with

their students. 140 S. Ct. at 2057, 2059, 2066. And, in

addition to regarding both teachers as catechists, the

schools in Our Lady of Guadalupe also made clear

that they viewed those teachers as key employees for

purposes of the schools’ religious mission.

One of those teachers, Morrissey-Berru, “took

religious education courses at the school’s request . . .

and was expected to attend faculty prayer services.”

Id. at 2056. The other, Biel, taught at a school that

required that she pray with her students on a daily

basis. Id. at 2059. Both Morrissey-Berru and Biel

were subject to the direct oversight of religious

leaders within the Roman Catholic Church. In

Morrissey-Berru’s case, her employment was

conditioned on the annual approval of “[t]he pastor of

the parish, a Catholic priest.” Id. at 2057. Biel’s school

principal was a Catholic nun. Id. at 2059.

Unlike the elementary school teachers in Our

Lady of Guadalupe, Palmer did not instruct her

students on the significance of various religious

sacraments. She was not required to install religious

displays in her classroom, and she was not expected

to attend religious education courses or accompany

her students to religious services. Moreover, Liberty

did not require Palmer to report to religious leaders.

Instead, she reported to the Chair of the Studio &

Digital Arts Department, who in turn reported to the

Associate Dean of the School of Visual & Performing

Arts.

45a

Furthermore, Palmer was not given instructions

on how to implement a Christian worldview into her

teaching. Unlike her Our Lady of Guadalupe

counterparts, Palmer evidently was accorded

significant discretion as to whether and to what

extent she wished to integrate faith into the

classroom. In fact, the record indicates that the only

religious activities that Palmer engaged in were

voluntary. Notably, Palmer did not incorporate a

single theological lesson into her course syllabi, but

this apparently proved no impediment to Palmer’s

promotion to “Full Professor,” the highest academic

rank at Liberty. In sum, it is a mistake to conflate

Palmer’s personal devotion to her faith with whether

she was the type of key employee who performed a

vital religious function for her employer. Not only

does this case not involve a teacher who was charged

with teaching religion classes, it also does not involve

a teacher who was given any concrete responsibility

for integrating faith into her classroom activities.

Were that not telling enough, the record here

includes ample evidence of how Liberty advertised

vacant art faculty jobs to would-be applicants. Those

position descriptions said nothing about religion;

rather, they focused on the technical expertise that

art faculty needed in the studio and digital arts.

Thus, Palmer’s case does not, as my friend Judge

Richardson suggests, “look[] extremely similar” to

Our Lady of Guadalupe. Conc. Op. at 52. The

differences are abundant. The ministerial exception,

as interpreted by the Supreme Court, simply does not

apply to Palmer.3

Judge Richardson would go still further than the Supreme

Court has. He would not limit his proposed holding to Palmer,

46a

IV.

Make no mistake: the conception of the ministerial

exception advanced by my concurring colleague is no

mere application of existing precedent. It is a

dramatic broadening of the ministerial exception that

would swallow the rule. Cf. DeWeese-Boyd v. Gordon

Coll., 163 N.E.3d 1000, 1017 (Mass. 2021), cert.

denied, 142 S. Ct. 952 (2022) (declining to apply the

ministerial exception to an associate professor of

social work, and explaining that doing so would mark

a “significant expansion of the ministerial exception

doctrine”). It is also one that if adopted would carry

profound practical consequences.

The ministerial exception effectively “gives an

employer free rein to discriminate because of race,

sex, pregnancy, age, disability, or other traits

protected by law when selecting or firing their

‘ministers,’ even when the discrimination is wholly

unrelated to the employer’s religious beliefs or

practices.” Our Lady of Guadalupe, 140 S. Ct. at 2072

(Sotomayor, J., dissenting).4 It is no exaggeration to

the faculty member involved in this case. Instead, sidestepping

the Court’s repeated admonitions that the ministerial exception

is a fact-based inquiry that must be based on the totality of the

circumstances, he asserts that “every professor at Liberty” is a

minister. See Conc. Op. at 56. In so doing, Judge Richardson

tacitly embraces the idea “that the Religion Clauses require civil

courts to defer to religious organizations’ good-faith claims that

a certain employee’s position is ‘ministerial.’” See Our Lady of

Guadalupe, 140 S. Ct. at 2069–70 (Thomas, J., concurring); see

also Hosanna- Tabor, 565 U.S. at 196 (Thomas, J., concurring).

This is not a position the Court has accepted.

4 Let us not forget that Palmer’s case is fundamentally one about

alleged age-based employment discrimination. There is no

suggestion anywhere in the record or briefs that Liberty

terminated Palmer’s employment for any religious reason. The

47a

say that the ministerial exception “condones animus.”

Id. Thus, the necessary implication of greatly

expanding the ministerial exception is that far fewer

employees would be protected from employment

discrimination.

When it comes to key religious figures, this is a

necessary tradeoff. The First Amendment’s Religion

Clauses require that religious organizations retain

the “power to decide for themselves, free from state

interference, matters of church government as well as

those of faith and doctrine.” Kedroff v. St. Nicholas

Cathedral, 344 U.S. 94, 116 (1952). “Without that

power, a wayward minister’s preaching, teaching, and

counseling could contradict the church’s tenets and

lead the congregation away from the faith.” Our Lady

of Guadalupe, 140 S. Ct. at 2060.

But Palmer was not a key religious figure or a

minister. She was an art professor. Indeed, if basic

acts like praying with one’s students and referencing

God in the classroom are enough to transform an art

professor into the type of key faith messenger who

qualifies for the ministerial exception, one can only

speculate as to who else might qualify for the

exception. See DeWeese-Boyd, 163 N.E.3d at 1017

(observing that if integrating faith “into daily life and

work” at a religious college were all that was required

for the exception to apply, all of the school’s

employees, “whether they be coaches, food service

same is true of Hosanna-Tabor and Our Lady of Guadalupe.

Hosanna-Tabor involved an employee who was allegedly fired in

retaliation for threatening to file an Americans with Disabilities

Act lawsuit, 565 U.S. at 179, and in Our Lady of Guadalupe,

“[t]wo employers fired their employees allegedly because one had

breast cancer and the other was elderly,” 140 S. Ct. at 2071

(Sotomayor, J., dissenting).

48a

workers, or transportation providers,” would be

ministers).

An employee does not shed her right to be free

from workplace discrimination simply because she

believes in God, prays at work, and is employed by a

religious entity. Absent clear guidance from the

Supreme Court, I cannot agree with a view of the

ministerial exception so capacious that it entirely

erodes vital antidiscrimination protections for scores

of workers throughout the United States.

That said, Judge King has more than capably

explained why the constitutional avoidance doctrine

cautions against reaching the ministerial exception

issue in this case. Because it was unnecessary for the

district court to confront this issue, I fully agree with

the decision to vacate that decision and dismiss

Liberty’s appeal from it. I also fully agree with the

decision to affirm the district court’s judgment in

Liberty’s favor as to the substantive age

discrimination claim. But, as explained above, even if

I were to accept Judge Richardson’s prudential

argument in favor of deciding the ministerial

exception issue first, I would conclude that the

exception does not apply here given the facts of this

case.

49a

RICHARDSON, Circuit Judge, concurring in the

judgment:

While I am inclined to agree with my friends in the

majority that Palmer’s age-discrimination case fails

on its merits, that issue strikes me as less

straightforward than they suggest. But I would not

even wade into the merits here, since we must grant

summary judgment to Liberty for a separate reason:

The First Amendment’s “ministerial exception” bars

employment claims made by ministers against a

religious institution. I would rest on that latter

ground.

True, as a general rule, we should not decide

constitutional questions when we could instead

resolve a case on statutory grounds. But this rule of

“constitutional avoidance” is entirely prudential; like

most general rules, it has exceptions. This case

warrants such an exception. The Supreme Court has

admonished against the “very process of inquiry” into

a religious institution’s faith or governance. NLRB v.

Cath. Bishop of Chi., 440 U.S. 490, 502 (1979). Yet

adjudicating the merits of Palmer’s claim would force

us to make that inquiry. Before biting into that apple,

we should determine whether the First Amendment

protects Liberty in this case.

It plainly does. The First Amendment’s

“ministerial exception” bars Palmer’s suit. Though

Palmer did not perform formal religious instruction,

her job description required her to integrate a

“Biblical worldview” into her teaching. And Palmer

admits to regularly praying with students, indeed

starting her classes with a psalm or a prayer.

Accordingly, Liberty viewed her as an official

“messenger” of its faith. Under the Supreme Court’s

50a

recent precedent, Palmer thus qualified as a

“minister.” That entitles Liberty to absolute

immunity over its decision to fire her. So I would

grant Liberty summary judgment on those grounds.

I. Constitutional Avoidance Ought Not Bind Us

Here

Like the majority, I endorse Justice Brandeis’s

“constitutional avoidance” principle: We generally

should not “pass upon a constitutional rule although

properly presented by the record, if there is also

present some other ground upon which the case may

be disposed of.” Ashwander v. Tenn. Valley Auth., 297

U.S. 288, 347 (1936) (Brandeis, J., concurring). But

the Supreme Court has been clear that this “rule” is

prudential. See, e.g., Zobrest v. Catalina Foothills

Sch. Dist., 509 U.S. 1, 7 (1993) (referring to the

“prudential rule of avoiding constitutional questions”

(emphasis added)). In other words, constitutional

avoidance is more like a guideline than a rule; we

need not yield to it when there are “important

reasons” for doing otherwise. Siler v. Louisville &

Nashville R.R. Co., 213 U.S. 175, 193 (1909); see also

Ashwander, 297 U.S. at 347 (Brandeis, J., concurring)

(citing Siler).

One reason that might justify addressing a

constitutional issue over a statutory one could be

federalism—for instance, deference to a state’s

authority to interpret its own statute. See Farm Lab.

Org. Comm. v. Stein, 56 F.4th 339, 355 (4th Cir. 2022)

(Richardson, J., concurring in the judgment). And,

here too, there are “important reasons” for addressing

the lurking constitutional issue of whether the First

Amendment’s ministerial exception bars Palmer’s

claims. Swerving around that issue veers us too close

51a

to the very interests that the First Amendment

protects, and risks entangling us in inherently

religious questions.

To understand why, we need to explore the

ministerial exception in more detail. Although not

specifically recognized by the Supreme Court until its

recent decisions in Hosanna-Tabor Evangelical

Lutheran Church & School v. EEOC, 565 U.S. 171

(2012), and Our Lady of Guadalupe School v.

Morrissey-Berru, 140 S. Ct. 2049 (2020), the exception

has deep roots. It grows out of the broader “churchautonomy doctrine,” which protects religious

institutions’ “power to decide for themselves, free

from state interference, matters of church

government as well as those of faith and doctrine.”

Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116

(1952); see also Our Lady of Guadalupe, 140 S. Ct. at

2061 (describing Hosanna-Tabor and the ministerial

exception as rooted in “the general principle of church

autonomy”). The ministerial exception is a specific

facet of the church-autonomy doctrine that guards a

religious institution’s authority to select certain

personnel. It prevents “the government from

interfering with the decision of a religious group to

fire one of its ministers.” Hosanna-Tabor, 565 U.S. at

181.

Despite its name, the ministerial exception applies

to more employees than those few who are literally

called “ministers.” After all, many faith traditions do

not use that title. See Our Lady of Guadalupe, 140 S.

Ct. at 2063–64. Instead, a “minister” under the

exception is any employee with “vital religious

duties.” Id. at 2066. That includes “any ‘employee’

who”: (1) “leads a religious organization,” (2)

“conducts worship services,” or (3) “serves as a

52a

messenger or teacher of its faith.” Id. at 2064 (quoting

Hosanna-Tabor, 565 U.S. at 199 (Alito, J.,

concurring)) (emphasis removed). Because these

employees are either involved with “the internal

governance of the church,” or else serve as

messengers who “personify its beliefs,” the First

Amendment’s two Religion Clauses—both the

Establishment Clause, Clause 1 of the First

Amendment, and the Free Exercise Clause, Clause 2

of the First Amendment—work together to prohibit

the government from “[r]equiring a church to accept

or retain an unwanted minister, or punishing a

church for failing to do so.”1 Hosanna-Tabor, 565 U.S.

at 188.

Once a court decides that the ministerial exception

applies, its inquiry ends. The employer need not show

that it had a “religious reason” for firing the minister.

Hosanna- Tabor, 565 U.S. at 194. Instead, the

employer may fire the minister for any reason—

including one that, on its face, has no connection to

religion and would otherwise be illegal. See Our Lady

of Guadalupe, 140 S. Ct. at 2072 (Sotomayor, J.,

dissenting).

How is the ministerial exception grounded in both Religion

Clauses? On the one hand, the Establishment Clause prohibits

the federal government (and, post-incorporation, the states)

from creating a state religion, which in England and colonial

America involved, among other things, “filling ecclesiastical

offices.” Hosanna-Tabor, 565 U.S. at 184. On the other hand, the

Free Exercise Clause “protects a religious group’s right to shape

its own faith and mission through its appointments.” Id. at 188.

Thus, although in many contexts these two clauses “exert

conflicting pressures,” here both converge to create the

ministerial exception. Id. at 181 (quoting Cutter v. Wilkinson,

544 U.S. 709, 719 (2005)).

53a

We do not demand a “religious reason” from the

employer for firing their minister because their

decision generally boils down to the same basic

question: “Do we,” the religious organization, “want

this person to make doctrinal or organizational

decisions for us, or to speak for us on religious

matters?” When the answer is “no,” whatever reason

the organization gives doesn’t matter. If a court

imposes a minister on a congregation that doesn’t

want her—even if the court does so based on

employment-law principles—it nonetheless impinges

on the church’s religious interest in choosing who

speaks for it. See Douglas Laycock, Church Autonomy

Revisited, 7 Geo. J.L. & Pub. Pol’y 253, 260–62 (2009);

see also Demkovich v. St. Andrew the Apostle Parish,

3 F.4th 968, 980 (7th Cir. 2021) (en banc). In other

words, simply saying “I don’t want her speaking for

me on religious matters” is itself, in a sense,

expressing a religious motive for firing the minister.

So there is no need to delve into that question.

Some go even further. Not only is there no need to

inquire into a church’s motives, they say, but indeed

that inquiry itself may offend First Amendment

interests. See, e.g., Hosanna-Tabor, 565 U.S. at 205–

06 (Alito, J., concurring) (noting that “the mere

adjudication of such questions would pose grave

problems for religious autonomy”). The Supreme

Court, in NLRB v. Catholic Bishop of Chicago, 440

U.S. 490 (1979), cautioned that the “very process of

inquiry” into the “good faith” of a religious employer

“may impinge on rights guaranteed by the Religion

Clauses,” by risking excessive “entanglement” in

religious affairs. See id. at 501–03; see also Our Lady

of Guadalupe, 140 S. Ct. at 2060 (“[C]ourts are bound

to stay out of employment disputes involving those

54a

holding certain important positions with churches.”

(emphasis added)). Our own Court explained that the

ministerial “exception shelters certain employment

decisions from the scrutiny of civil authorities.” EEOC

v. Roman Catholic Diocese of Raleigh, 213 F.3d 795,

801 (4th Cir. 2000) (emphasis added). And other

judges have understood the ministerial exception—

like qualified immunity, or the Fifth Amendment’s

Double Jeopardy Clause— to protect a religious

institution not only from ultimate liability, but also

from judicial inquiry itself. See, e.g., Belya v. Kapral,

59 F.4th 570, 577–80 (2d Cir. 2023) (Park, J.,

dissenting from denial of rehearing en banc); Tucker

v. Faith Bible Chapel Int’l, 36 F.4th 1021, 1049–55

(10th Cir. 2022) (Bacharach, J., dissenting).

The extent to which Catholic Bishop’s

“entanglement” concerns—as a constitutional

matter—survive the demise of Lemon v. Kurtzman,

403 U.S. 602 (1971), is an open question. See Cath.

Bishop, 440 U.S. at 501 (citing Lemon as prohibiting

“excessive governmental entanglement”). After all,

“Lemon and its ilk are not good law” any longer.

Firewalker-Fields v. Lee, 58 F.4th 104, 121 n.5 (4th

Cir. 2023). Today, we must evaluate Establishment

Clause claims using “historical practice and

understanding.” Id. at 122. But I need not say that a

court’s inquiry into a minister’s employment is

unconstitutional in order to say that it is—as a

prudential matter—a bad idea for us to become so

entangled.2

2 That said, there is some historical support for the idea that the

First Amendment prohibits the government from entangling

itself in church leadership selection. Hosanna-Tabor itself noted

that, when a Catholic bishop asked whom he should appoint to

lead the Catholic Church in the newly acquired Louisiana

55a

Deciding this case on statutory grounds would

lead to exactly that kind of entanglement. Skirting

the ministerial exception by dismissing an

employment-discrimination claim on its merits forces

us to inquire into the church’s motives for firing its

minister. But, as discussed already, the church’s

decision is intrinsically bound up in religious

doctrine. To subject such a decision to the scrutiny of

temporal courts threatens the church’s “power to

decide for themselves, free from state interference,

matters of . . . faith.” Kedroff, 344 U.S. at 116. And the

sort of “inquiry” that entangles us in matters of faith

encompasses more than just digging through a

religious institution’s employment files and deposing

its leaders. In my view (and at the risk of sounding

too metaphysical), the mere act of questioning the

institution’s motives—even if the court ultimately

decides that those motives are “pure”—cheapens its

authority over ecclesiastical affairs.

Suppose that a Baptist church fires one of its

elderly preachers, saying that his sermons weren’t

Territory, then-Secretary of State James Madison declined to

even weigh in. 565 U.S. at 184. In Madison’s view, even

“rendering an opinion,” id., would violate the “scrupulous policy

of the Constitution in guarding against a political interference

with religious affairs.” Letter from James Madison to Bishop

Carroll (Nov. 20, 1806), reprinted in 20 Records of the American

Catholic Historical Society of Philadelphia 63–64 (1909)); but cf.

Letter from James Madison to Bishop Carroll (Nov. 20, 1806),

reprinted in 20 Records at 64–65 (offering, in a separate

“Private” letter, a more detailed opinion on the Bishop’s

selection). So, even applying the new history-and-tradition test,

see Firewalker, 58 F.4th at 121–22, the ministerial exception

may constitutionally bar judicial inquiry into a religious

employer’s motives. But, because I decline—as a matter of

prudence—to engage in that inquiry, I need not decide

definitively whether such an inquiry would be unconstitutional.

56a

quite “fire-y” enough. For the previous three years,

the church had consistently warned him about the

problem, reporting that congregants were dozing off

while he was at the pulpit. But the preacher

nonetheless turns around and sues, claiming age

discrimination. We would rightly dismiss that suit as

barred by the First Amendment; we would not, for a

moment, entertain wading into the merits of the

preacher’s claim. And we certainly would not deign to

decide whether he was “meeting his employer’s

legitimate expectations” when he was let go, and thus

whether he could make out a prima facie case of

discrimination. We would recognize that even asking

that question goes too far.

But that is exactly what the majority does here.

See Majority Op. at 21–24. And, if you’re determined

to reach the merits, asking such a question is almost

inevitable. Discrimination cases center on the

employer’s motives, since a fundamental question in

each one is whether the employer engaged in

intentional discrimination. See Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 153 (2000) (“The

ultimate

question

every

employment

discrimination case involving a claim of disparate

treatment is whether the plaintiff was the victim of

intentional discrimination.”). Indeed, the burdenshifting framework of McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973), from which the prima

facie case derives, is just a way of dividing

“intermediate evidentiary burdens” that “serves to

bring the litigants and the court expeditiously and

fairly to this ultimate question”: What motivated the

employer’s decision? Tex. Dept. of Comm. Affairs v.

Burdine, 450 U.S. 248, 253 (1981). And that “process

of inquiry”—“not only the conclusions”—is what risks

57a

entanglement, Cath. Bishop, 440 U.S. at 502, and is

what we ought to steer clear of.

In sum, deciding the merits of an agediscrimination case—whether we rule for the

employer or not—requires us to “inquire” into that

employer’s motives. But, if the plaintiff was the

employer’s minister, then that is precisely what we

should avoid. So—at least as a matter of prudence—

we should decide if that’s the case before going any

further.

II. The Ministerial Exception Bars Palmer’s

Suit

Thus, before peering into the merits of Palmer’s

age-discrimination case, we should resolve a

threshold question: Does the First Amendment’s

ministerial exception bar it? The answer: It does. The

key issue is whether Palmer had “vital religious

duties,” Our Lady of Guadalupe, 140 S. Ct. at 2066,

specifically whether she “serve[d] as a messenger” of

Liberty’s religious teachings,3 id. at 2064 (quoting

Hosanna-Tabor, 565 U.S. at 199 (Alito, J.,

concurring)). Although Palmer did not teach formal

religion classes, she was nonetheless expected—by

both Liberty and its students—to imbue her classes

with a “Biblical worldview.” In other words, Liberty

expected Palmer to conform her classes to its religious

message, and to help it spread that message. So she

3 As discussed above, other such duties would include “lead[ing]

a religious organization” and “conduct[ing] worship services or

important religious ceremonies or rituals.” Our Lady of

Guadalupe, 140 S. Ct. at 2064 (quoting Hosanna-Tabor, 565 U.S.

at 199 (Alito, J., concurring)). But nothing in the record suggests

that Palmer performed either of these functions for Liberty. So,

if the ministerial exception applies, it is because Palmer served

as Liberty’s “messenger.”

58a

was Liberty’s “messenger,” and thus its “minister” for

First Amendment purposes. As such, Palmer’s claims

cannot proceed.

A. Palmer imbued her classes with a

“Biblical worldview,” as Liberty required

To understand whether Palmer served as a

“messenger” of Liberty’s faith, we must first delve into

their employment relationship.

Liberty University is an openly evangelical

institution. Its mission is to “develop[ ] Christcentered men and women with the values, knowledge,

and skills essential to impact the world.” J.A. 374. As

part of this mission, Liberty commits to “[p]romot[ing]

the synthesis of academic knowledge and Christian

worldview.” J.A. 374. And Liberty explicitly states its

mission both in its faculty handbook and on its

website. Also in its handbook is Liberty’s statement

on its worldview: “Liberty University embraces a

worldview that is both historically Christian and

Biblical.” J.A. 64. The handbook continues: “At

Liberty, students receive an education that integrates

this Christian and Biblical worldview.” J.A. 64.

Eva Palmer began working as an art professor at

Liberty in 1986. She did not have a theology or

ministry degree.4 And, she never taught formal

classes on religion. So she never considered herself to

be a “minister,” and Liberty never gave her that

official title.

4 While Palmer did not have a religious degree when joining the

faculty, during her time at Liberty she enrolled in the

university’s “Doctor of Ministry” program, earning more than 30

credit hours towards her degree.

59a

Yet that doesn’t mean that Liberty had no

religious expectations for Palmer. Indeed, her

employment contract explicitly incorporated the

faculty handbook’s requirements. And, alongside the

provisions above, the handbook required faculty to

“maintain the integrity of our teaching by ensuring

that its content is . . . compatible with the University’s

Christian worldview as reflected in the doctrinal

statement.” J.A. 67. Every year, Liberty enforced

these expectations by evaluating its faculty—

including Palmer—on their “Integration of Biblical

Worldview.” J.A. 1331; see also J.A. 32. That

component of their evaluation asked: “In what ways

do you actively integrate Biblical worldview in your

teaching/administrative responsibilities?” J.A. 1332.

Palmer generally got good reviews in this stead.

When asked whether she “exhibited commitment to

Christian principles,” her students—in their formal

end-of-semester

evaluations—apparently

gave

Palmer “above-average scores.” J.A. 34. And one

faculty evaluator noted, after observing one of

Palmer’s classes, that “[h]er speech is laced with

references to God and comparisons of His work in

creation to our work as creative artists.” J.A. 115. He

also noted that Palmer “opens class with opportunity

for prayer.”J.A. 115.

Palmer’s own characterization of her teaching

matches up with these faculty and student reviews.

She denies formally teaching religious doctrine

during instructional time. But she admits that she

“discussed God with her students and prayed with her

students,” J.A. 250, and acknowledges that she

“typically began” class with a psalm or a prayer. J.A.

259. When asked how she “integrate[s] Biblical

worldview” into her classes, she replied: “I integrate

60a

principles and concepts from Scripture, make

Scripture references, pray with my classes and

individuals, and set the example in my own standard

of living.” J.A. 938.

B. Palmer served as a “messenger”

Liberty’s religious teachings

Viewing these facts in light of Our Lady of

Guadalupe shows that Palmer was Liberty’s

“minister” for First Amendment purposes.

Our Lady of Guadalupe considered two Catholic

elementary

school

teachers’

employmentdiscrimination claims. In holding that the ministerial

exception barred those claims, the Court found

several facts to be particularly informative. First, the

teachers at issue were expected, as spelled out in their

employment contracts and faculty handbooks, to

“‘model and promote’ Catholic ‘faith and morals’” and

“infuse[ ]” those values “through all subject areas.”

Our Lady of Guadalupe, 140 S. Ct. at 2056–57.

Second, they were evaluated for compliance with

these requirements. See id. Third, they “prayed with

[their] students.” Id. at 2057. And fourth, they

“provided religious instruction.” Id.

Palmer’s case looks extremely similar. Much like

the schools in Our Lady of Guadalupe, Liberty’s

mission was to “[p]romote the synthesis of academic

knowledge and Christian worldview.” J.A. 374. And,

like the teachers in Our Lady of Guadalupe, Palmer

was expected to serve this mission and promote

Christian values, both by acting as a role model for

her students and by integrating a Biblical worldview

into her art classes. Likewise, Palmer was evaluated

on whether she complied with this requirement.

What’s more, just as in Our Lady of Guadalupe,

61a

Palmer admits to regularly praying with the students

in class—indeed, starting class with a prayer or a

psalm. So the only major difference between the two

cases is that Palmer did not provide formal religious

instruction.

Should that single difference matter? No. Our

Lady of Guadalupe emphasized that there is no “rigid

formula,” 140 S. Ct. at 2062 (quoting Hosanna-Tabor,

565 U.S. at 190)), for deciding when the ministerial

exception applies, and chastised the lower court for

“demanding nothing less than a ‘carbon copy’ of the

specific facts in Hosanna-Tabor.” 140 S. Ct. at 2060

(quoting 926 F.3d 1238, 1239 (9th Cir. 2019) (Nelson,

J., dissenting from denial of rehearing en banc)). The

lower court erred, said Our Lady of Guadalupe, by

treating “the circumstances that we found relevant in

[Hosanna-Tabor] as checklist items to be assessed

and weighed against each other in every case.” 140 S.

Ct. at 2067.

In other words, Hosanna-Tabor did not create an

exclusive list of necessary conditions. It did not

require religious institutions to bat a thousand on the

factors that it identified. True, said the Court, the

teachers in Our Lady of Guadalupe lacked certain

characteristics of those from Hosanna-Tabor. They,

like Palmer, had neither a religious title nor a

religious degree, two factors that Hosanna-Tabor

alluded to. See Our Lady of Guadalupe, 140 S. Ct. at

2065; Hosanna-Tabor, 565 U.S. at 191–92. But, while

those factors made Hosanna-Tabor “an especially

easy” case, neither of them was “essential.” Our Lady

of Guadalupe, 140 S. Ct. at 2062, 2067 (cleaned up).

Just as it would be a mistake to treat HosannaTabor as an exclusive “checklist” and seek out a

62a

“carbon copy” of its facts, so too with Our Lady of

Guadalupe. The overall question that we must ask to

determine whether Palmer was Liberty’s “minister” is

whether she “serve[d] as a messenger or teacher of its

faith.” Id. at 2064 (quoting Hosanna-Tabor, 565 U.S.

at 199 (Alito, J., concurring)) (emphasis removed).

That the Catholic elementary school teachers in Our

Lady of Guadalupe engaged in formal religious

instruction—by literally teaching classes on religious

doctrine and preparing students for Mass—made it

“especially easy” for the Court to tell that they were

“messengers” of the schools’ faith. But the Court did

not rest on that reason alone.

To start, the formal religion classes at issue in Our

Lady of Guadalupe were “short.” 140 S. Ct. at 2071

(Sotomayor, J., dissenting). One of the plaintiffs

taught religion for only 200 minutes per week—that’s

less than 45 minutes per day. See id. at 2059. The

teachers still “taught primarily secular subjects.” Id.

at 2072 (Sotomayor, J., dissenting). But the Court

recognized that it was not just through formal

“instruction about the Catholic faith” that the

teachers aided the school in providing a religious

education. Id. at 2066. Instead, the Court noted

that—even in their ostensibly “secular” classes—the

teachers were still “expected to guide their students,

by word and deed, toward the goal of living their lives

in accordance with the faith.” Id. After all, the

teachers’ employment agreements and faculty

handbooks required them to “infuse[ ]” Catholic

values “through all subject areas.” Id. at 2056–57. So

too here.

Further, stepping back from the specific details of

the teachers’ employment agreements, the Court

recognized that “[t]he religious education and

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formation of students is the very reason for the

existence of most private religious schools.” Id. at

2055. Thus, “the selection and supervision of the

teachers upon whom the schools rely to do this work

lie at the core of their mission.” Id. The same is true

with Liberty. Students attend colleges like Liberty

not with the expectation that they will get all of their

religious education in formal classes on theology or in

worship services. Instead, they expect that every class

on every subject will integrate a Biblical worldview,

and that every teacher will be a model of faith. See

Gordon Coll. v. DeWeese-Boyd, 142 S. Ct. 952, 955

(2022) (Alito, J., statement respecting denial of

certiorari) (“[R]eligious education at Gordon College

does not end as soon as a student passes [formal

religion] courses and leaves the chapel. Instead, the

college asks each member of the faculty to ‘integrate’

faith and learning.”). Religious faith is not confined to

a time and place.

Put plainly, by announcing that it requires its

professors to integrate a Biblical worldview into all of

their classes, and to model their faith, Liberty is

sending a religious message to its students, their

parents, and the rest of the public: “These classes—

and our faculty’s actions—comport with our

institution’s reading of the Bible.” In every lesson that

they teach, Liberty’s professors impart that message

to their students. True, Liberty gives its professors

“significant discretion” about how to do so: There are

not specific religious lessons that professors like

Palmer must teach, or specific “religious displays”

that they must install in their classrooms. See

Concurring Op. at 37. But it is nonetheless critical—

from Liberty’s perspective—that it has wide latitude

to remove its professors for sending the wrong

64a

message. Otherwise, a “wayward [professor’s]

preaching, teaching, and counseling could contradict

[Liberty’s] tenets and lead the [students] away from

the faith.” Our Lady of Guadalupe, 140 S. Ct. at 2060.

Indeed, this is the entire reason that Liberty has

eschewed the tenure system—to ensure that it can

make “internal management decisions that are

essential to the institution’s central mission.” Id.; see

J.A. 166.

Because Palmer—like every professor at Liberty—

served as the school’s religious “messenger” to its

students, she was its “minister” for First Amendment

purposes. The ministerial exception thus bars her

employment-discrimination claim.

***

I commend my friends’ efforts to follow Justice

Brandeis’s advice, and to skirt unnecessary

constitutional questions. But, to borrow another

Brandeisian phrase, constitutional avoidance is not

an “inexorable command.” Washington v. W.C.

Dawson & Co., 264 U.S. 219, 238 (1924) (Brandeis, J.,

dissenting) (discussing stare decisis); see also Bell v.

Maryland, 378 U.S. 226, 322 (1964) (Black, J.,

dissenting) (discussing constitutional avoidance).

Sometimes, “important reasons” implore us to

confront a constitutional issue head-on. Siler, 213

U.S. at 193. Such is the case here. Standing behind

the First Amendment’s ministerial exception is a

principle that, where possible, courts should avoid

even inquiring into a religious institution’s motives

for firing one of its ministers. Weighing in on the

merits of Palmer’s case—even if we ultimately side

with Liberty—requires us to judge its motives, and

thus make that inquiry. And Palmer was indeed

65a

Liberty’s “minister,” since she served as an important

“messenger” for its religious teachings. Accordingly,

while I would reach the same conclusion as the

majority— Palmer’s suit should be dismissed—I

would do so on different grounds. I thus respectfully

concur only in the judgment.

66a

[FILED DECEMBER 1, 2021]

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF VIRGINIA

LYNCHBURG DIVISION

EVA PALMER,

Plaintiff,

LIBERTY UNIVERSITY, INC.,

Defendant.

CASE NO. 6:20-cv-31

MEMORANDUM OPINION

& ORDER

JUDGE NORMAN K. MOON

This matter comes before the Court on Plaintiff

Eva Palmer’s and Defendant Liberty University,

Inc.’s cross-motions for summary judgment on the

applicability of the ministerial exception to Palmer’s

allegation that Liberty wrongfully terminated her

employment in violation of the Age Discrimination in

Employment Act of 1967 (ADEA), 29 U.S.C. § 621, et

seq., Dkt. 13, 14.

Palmer taught art classes at Liberty for over 30

years, from 1986 to 2018. Dkt. 15-1 at ¶ 12. She

taught under a variety of position titles, ending as

Professor of Art in the Studio and Digital Arts

Department of the School of Visual and Performing

Arts. Id. at ¶ 29–30. In April 2018, Liberty informed

Palmer that it would not renew her contract for the

following academic year. Id. at ¶ 12. Palmer

immediately appealed the decision, and Liberty

officials told her after a multi-level review process

67a

that its decision was performance-based,

therefore denied her appeal. Dkt. 1 at ¶ 14.

and

Palmer alleges that Liberty’s proffered reason for

not renewing her contract was a pretext for age-based

discrimination. Id. at ¶ 16. In support of her claim,

she alleges that Liberty replaced her with a younger

employee who was “far less qualified and far less

experienced.” Id. at ¶ 17. She also alleges that Liberty

did not renew the contracts of several other “older”

educators contemporaneously with its decision not to

renew hers. Id. at ¶ 18.

Now, both parties have filed cross-motions for

summary judgment on the issue of the ministerial

exception. Dkt. 13, 14. The ministerial exception

shields religious employers from anti-discrimination

law for employment decisions regarding “ministers.”

See Hosanna-Tabor Evangelical Lutheran Church &

School v. EEOC, 565 U.S. 171 (2012). The Supreme

Court has recently held that the ministerial exception

applies to certain teachers at religious schools in

Hosanna-Tabor and Our Lady of Guadalupe v.

Morrissey-Berru, 591 U.S. ___; 140 S. Ct. 2049 (2020).

Accordingly, Liberty now moves that the Court hold

as a matter of law that the ministerial exception

applies to its decision not to renew Palmer’s contract.

See Dkt. 13. Palmer moves the Court to hold the

reverse—that the ministerial exception does not

apply to her case as a matter of law. See Dkt. 14.

For the reasons laid out below, the Court holds

that Palmer was not a “minister” within the meaning

of the exception, and therefore will grant Palmer’s

motion and deny Liberty’s.

68a

I. LEGAL STANDARD

A. The Ministerial Exception

The ministerial exception bars the application of

anti-discrimination law to religious institutions’

employment

decisions

regarding

“ministers.”

Following a series of lower court decisions recognizing

a religious exemption from anti-discrimination

claims, the Supreme Court first embraced the

ministerial exception in Hosanna-Tabor Lutheran

Church & School v. EEOC, 565 U.S. 171 (2012). In

that case, the Court held that a teacher was barred

from suing her employer, a church with an affiliated

religious school, because she was a “minister.” The

Court explained that the exception arose from both

the Free Exercise Clause and the Establishment

Clause—that the Free Exercise Clause safeguards

religious institutions’ “right to shape [their] own faith

and mission through [their] appointments,” and that

the Establishment Clause prohibits “government

involvement in [] ecclesiastical decisions.” HosannaTabor, 565 U.S. at 188. Considering those two

principles together, the Court held that antidiscrimination law does not govern religious

institutions’

employment

decisions

regarding

ministers. Id. at 189–190.

After settling the question of whether religious

institutions were exempt from antidiscrimination law

with respect to employment decisions regarding

ministers, the Court turned to the issue of whether

the plaintiff in question was in fact a “minister.”

Although the Court declined to adopt a “rigid

formula” for determining which employees are

ministers, it found compelling that the plaintiff (1)

was held out as a minister and given a ministerial

69a

title, (2) had undertaken a “significant degree of

religious training,” (3) held herself out as a minister,

even claiming special housing allowances for

ministers on her taxes, and (4) performed significant

religious functions, including playing “a role in

conveying the Church’s message and carrying out its

mission.” Id. at 191–192. With those considerations in

mind, the Court held that the plaintiff was a

“minister” within the meaning of the exception. Id. at

194.

The Supreme Court further expanded the scope of

the ministerial exception in Our Lady of Guadalupe

School v. Morrissey-Berru, 591 U.S. ___; 140 S. Ct.

2049 (2020). The opinion involved two consolidated

cases in which Catholic primary schools fired teachers

for allegedly discriminatory reasons. In the first case,

a teacher at a Catholic elementary school in Los

Angeles brought an ADA claim when the school

refused to renew her contract shortly after she

requested time off to undergo treatment for breast

cancer. Our Lady of Guadalupe, 140 S. Ct. at 2058–

2059. In the second case, a teacher at another

Catholic elementary school in Los Angeles brought an

ADEA claim after the school moved her from a fulltime to a part-time position and replaced her with a

younger teacher. Id. at 2057–2058.

The Court held that both plaintiffs were ministers

within the meaning of the exception, and thus that

they could not proceed on their anti-discrimination

claims. Id. at 2055. The Court again referenced the

four considerations laid out in Hosanna-Tabor: the

employee’s title, her religious training, how she held

herself out, and what functions she performed. Id. at

2062. But the Court emphasized that what was most

important is “what an employee does.” Id. at 2064.

70a

The Court noted that both teachers were employed

under similar agreements to promote the Catholic

faith, instruct students in religious worship, and

personally model the schools’ values. Id. at 2058–

2060. The Court also noted that both teachers taught

religion courses for part of the day, frequently prayed

with their students, and brought their students to

worship services. Id. The Court held that the absence

of the word “minister” in the teachers’ titles was not

dispositive, nor was their lack of formal religious

education relative to the plaintiff in Hosanna-Tabor.

Id. at 2063–2064. The Court concluded that the four

considerations in Hosanna-Tabor were not “factors to

be assessed and weighed in every case,” but rather a

set of more general guidelines to determine whether

the plaintiff was a minister. Id. at 2068.

B. Summary Judgment and the

Ministerial Exception

Lower courts have broken the ministerial

exception into two closely related questions: first,

whether the employer is a religious institution

covered by the rule, and second, whether the plaintiff

is a minister within the rule’s meaning. See, e.g.,

Lishu Yin v. Columbia Int’l Univ., 335 F. Supp. 3d

803, 812 (D.S.C. 2018) (“In order for the ministerial

exception to apply, an employer must be a religious

institution, and an employee must be a minster.”).

Both issues are “pure question[s] of law,” which the

Court “must determine for itself.” Conlon v.

InterVarsity Christian Fellowship, 777 F.3d 829, 833

(6th Cir. 2015); accord Kirby v. Lexington Theological

Seminary, 426 S.W.3d 597, 608–609 (Ky. 2014)

(“[T]he determination of whether an employee of a

religious institution is a ministerial employee is a

71a

question of law for the trial court, to be handled as a

threshold matter.”).

Summary judgment is the stage of the proceedings

at which the Court must decide whether the exception

applies. The Supreme Court held in Hosanna-Tabor

that the exception is an affirmative defense, not a

jurisdictional bar. Hosanna-Tabor, 565 U.S. at 194, n.

4. Ordinarily, affirmative defenses are pled in the

answer and then resolved by a motion for summary

judgment. See Fed. R. Civ. P. 8(c)(1) (“In responding

to a pleading, a party must affirmatively state any

avoidance or affirmative defense . . . .”); Fed. R. Civ.

P. 56(a) (“A party may move for summary judgment,

identifying each claim or defense—or the part of each

claim or defense—on which summary judgment is

sought.”). In short, “summary judgment will almost

invariably be the appropriate mechanism for deciding

whether the exception applies.” Peter J. Smith and

Robert W. Tuttle, Civil Procedure and the Ministerial

Exception, 86 FORDHAM L. REV. 1847, 1867 (2018).

Federal Rule of Civil Procedure 56(a) provides that

a court should award summary judgment “if the

movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to

judgment as a matter of law.” “As to materiality . . .

[o]nly disputes over facts that might affect the

outcome of the suit under the governing law will

properly preclude the entry of summary judgment.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). To preclude summary judgment, the dispute

about a material fact must be “‘genuine,’ that is, if the

evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Id.; see also JKC

Holding Co. v. Washington Sports Ventures, Inc., 264

F.3d 459, 465 (4th Cir. 2001). If, however, the

72a

evidence of a genuine issue of material fact “is merely

colorable or is not significantly probative, summary

judgment may be granted.” Anderson, 477 U.S. at 250.

In considering a motion for summary judgment under

Rule 56, a court must view the record as a whole and

draw all reasonable inferences in the light most

favorable to the nonmoving party. See, e.g., Celotex

Corp. v. Catrett, 477 U.S. 317, 322–324 (1986); Shaw

v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994).

II. FACTUAL BACKGROUND

Eva Palmer taught at Liberty University from

1986 to 2018. Dkt. 15-1 at ¶ 12. Over the years, she

taught art classes under a variety of position titles,

ending as Full Professor in the Studio and Digital

Arts Department of Liberty’s School of Visual and

Performing Arts. Id. ¶ 27. On April 18, 2018, Palmer

received a letter from Liberty stating that it would not

be renewing her employment contract for the

following academic year. Dkt. 1 at ¶ 9. Palmer

immediately appealed the decision and had several

meetings with Liberty officials. Eventually, Liberty’s

Interim Provost told her that the university had not

renewed her contract for performance reasons. Id. at

¶ 14.

Palmer’s educational background is largely

secular. She holds a B.S. Ed. with a concentration in

art, and two master’s degrees in fine art. Dkt. 15-1 at

¶¶ 3–5. She has no graduate or post-graduate degrees

in religion, theology, or ministry, although she did

complete some coursework in Liberty’s Doctor of

Ministry Program, from which she did not obtain a

degree. Id. at ¶ 6, Dkt. 22-2 at 37–38. Palmer claims

that this coursework was for her personal spiritual

development (Dkt. 22 at 8), and no evidence in the

73a

record indicates that Liberty required her to complete

it for her job. Furthermore, Palmer is not, and has

never been, an ordained minister. Dkt. 15-1 at ¶ 7.

At the core of Palmer’s daily responsibilities was

teaching art classes on subjects like drawing and

sculpture. Id. at ¶¶ 26–32. For a brief time in the mid1990s, she also taught humanities courses. Id. at ¶ 26.

She concedes that she began each class with a short

prayer or psalm reading, but she did not otherwise

integrate Christian lessons into her classes. Id. at ¶

39. Occasionally, her art lessons would reflect Biblical

stories or lessons—such as one effort to “compare[]

her pottery and ceramics to certain Biblical lessons

learned in Jeremiah 18,” but this was not, apparently,

the norm. See Dkt. 15-1 at ¶¶ 26–39.

Outside of class, Palmer did not significantly

participate in her students’ spiritual lives. She did not

bring her students to church services. Id. at ¶ 37. She

occasionally counseled them on personal matters

outside the immediate scope of her teaching duties,

and would have periodic conversations about

spirituality with students, but she never led them in

Bible study, guided them in scripture, or gave them

sermons. Id. at ¶¶ 26–30; Dkt. 13-2 at ¶¶ 21–23.

Liberty is a Christian university, and places some

demands on its faculty and staff to uphold its values.

Dkt. 13-2 at ¶¶ 1–16. The school was founded under

the auspices of the Southern Baptist faith, and its

stated purpose is to “promot[e] the synthesis of

academic knowledge and a Christian worldview.” Id.

at ¶ 5. It has a set of generally applicable policies that

codify its Christian values, and screens applicants for

teaching positions based on their commitment to

those values (although the current screening system

74a

was not in place when Liberty hired Palmer in the

1980s). Id. at ¶¶ 1–16. When faculty members first

begin teaching at the school and at the beginning of

each semester thereafter, Liberty requires that they

complete faith-based workshops through Liberty’s

Center for Teaching Excellence, which “assist[s]

faculty in integrating the Christian worldview into

the classroom.” Id. at ¶ 11. While Liberty faculty are

not “expressly required to engage in specific religious

conduct in the classroom, such as praying with

students, reading Bible verses, holding devotionals,

[or] attending services with students,” Liberty asserts

that faculty are given “the tools and substantial

authority” to impose religious lessons on their classes.

The school’s faculty handbook guides instructors to

“model and encourage spiritual maturity in students

and to be available for spiritual counsel,” but does not

call for faculty to take any particular action to instill

religion in their students. Liberty faculty are

generally required to “exemplify Liberty’s Christian

worldview both inside and outside of the classroom.”

Dkt. 13-2 at 15–16.

III.

ANALYSIS

A. Liberty is a Religious Institution for the

Purpose of the Ministerial Exception

In determining whether the ministerial exception

applies, the Court must first decide whether Liberty

is a “religious institution” within the meaning of the

exception. Conlon, 777 F.3d at 833.

A “religious institution” for the purpose of the

ministerial exception is one that has a mission

“marked by clear or obvious religious characteristics.”

Shaliehsabou v. Hebrew Home of Greater Washington,

Inc., 363 F.3d 299, 310 (4th Cir. 2004). To be a

75a

religious institution for purpose of the ministerial

exception, the institution need not be a traditional

religious organization such as a church, diocese, or

synagogue, or an entity operated by a traditional

religious organization. See Conlon, 777 F.3d at 834.

Several universities have qualified. See Yin, 335 F.

Supp. at 815 (collecting religious university cases).

Liberty’s stated mission is to “encourage students to

embrace Christ and Christian values.” Dkt. 13-1 at

14. Liberty has a governing Doctrinal Statement that

lays out specific theological beliefs and a code of

conduct that requires students to act in accordance

with Liberty’s doctrinal values. Id.; see Yin, 335 F.

Supp. 3d at 815 (“Thus, since [the university] ‘trains

Christians’ and ‘educates people from a biblical

worldview,’ it is a religious group under the

ministerial exception because it possesses ‘obvious

religious characteristics.’”).

In short, Liberty has a stated religious purpose

and numerous policies that further that religious

purpose. Furthermore, Palmer has not made any

arguments on this point. Therefore, the school is a

“religious institution” for the purpose of the

ministerial exception.

B. Palmer was not a Minister Within the

Meaning of the Exception

The second issue is whether Palmer was a

“minister” under the exception. The Supreme Court

has developed a functional analysis to determine

which employees at religious organizations are

“ministers.” In Hosanna-Tabor, the Court laid out

four non-exhaustive considerations: (1) how the

employer held out the employee, including her title,

(2) whether the employee had undergone significant

76a

religious training, (3) how the employee held herself

out, and (4) what functions the employee performed.

Hosanna-Tabor, 565 U.S. at 190–192. In Our Lady of

Guadalupe, the Court emphasized this last factor:

“What matters, at bottom, is what an employee does.”

Our Lady of Guadalupe, 140 S. Ct.. at 2064. The

Court also noted in Our Lady of Guadalupe that none

of those four considerations were dispositive, nor

would they always be relevant—they are not “factors

to be assessed and weighed in every case.” Id. at 2068.

Thus, while the Court must undertake a fact-specific

analysis of Palmer’s title, training, self-regard,

actions, it may also consider any other relevant

considerations to determine whether she was a

“minister” within the exception.

1. How Liberty Held Palmer Out

The first consideration from Hosanna-Tabor is

how the employer held out the employee, including

her title. Every position that Palmer held at Liberty

had a secular title. Dkt. 15-1 at ¶ 27. Her final title

was Professor of Art. Id. Liberty never referred to her

as a “minister,” “chaplain,” “pastor,” or any other

similar term. Id. at ¶ 14. Nor did she ever teach in one

of Liberty’s schools that provide courses in clearly

ministerial subjects, such as the School of Divinity or

the Religion Department. Id. at ¶¶ 31–32. Rather, she

taught in the School of Visual and Performing Arts.

Id. at ¶ 29. In addition, nothing in Palmer’s job

description referred to ministerial duties. See Ex. C,

D, and E to Dkt. 15. When the Liberty put up a job

posting to replace her, the position called for

“expertise in one of more of the following: graphic

design, motion graphics, UI/UX design, responsive

web design, and game design with some experience in

studio art.” Ex. C to Dkt. 15.

77a

In its briefs, Liberty notes that it requires all

faculty to “exhibit commitment to Christian

principles and integrate the Christian worldview in

the classroom.” Dkt. 13-1 at 17. Liberty states that all

faculty must abide by the school’s faith-based policies,

which are incorporated into the school’s Doctrinal

Statement and individual faculty members’

employment agreements. Id. at 17–18. Because

Palmer agreed to abide by the school’s policies,

Liberty argues that the policies should factor into the

Court’s determination of whether she is a minister.

See id.

The first consideration weighs in Palmer’s favor.

Her title was secular, and no evidence in the record

suggests that Liberty regarded her as a minister until

litigation in this case commenced. While an employee

can still be a “minister” under the exception without

being specifically titled as one, nothing about

Palmer’s job title or the way that Liberty held her out

indicates that she was a minister.

2. Palmer’s Religious Training

The second consideration from Hosanna-Tabor is

whether the employee has undergone “significant

religious training.” Hosanna-Tabor, 565 U.S. at 193.

Here, Palmer holds no degrees in religion, theology,

or ministry, and none of her positions at Liberty

required her to have one. Dkt. 15-1 at ¶¶ 6, 23. She

holds a bachelor’s degree in education, and two

master’s degrees in fine art. Id. at ¶¶ 3–6. She has

taken some religious courses in non-degree settings,

including at Liberty, but those courses were for her

personal development, not to train as a minister. Dkt.

22 at 5.

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Liberty

emphasizes

Palmer’s

non-degree

coursework, her “informal” religious training, and the

religious training that Liberty requires of all faculty

members. First, Liberty notes that Palmer took some

courses in Liberty’s Doctor of Ministry program

around 2015 and 2016. Dkt. 13-1 at 7. Second, Liberty

argues that Palmer is “informally qualified” as a

minister because she is a devout Christian. Id. at 16.

Liberty points to the fact that Palmer has been a

“Christian since grade school.” Id. Liberty further

notes that during her time at Liberty, she “attended

church, convocation, Christian missions, Christianbased conferences, and even a faith-driven

archaeological dig in Israel.” Id. Third, Liberty argues

that all Liberty faculty members are required to

undergo training on “how to integrate a Christian

worldview in their respective disciplines.” Id. at 3.

Liberty also asserts that all faculty members are

hired partially based on their religious convictions

and knowledge (id. at 16), but the present system for

screening applicants on those bases was not in place

when Liberty hired Palmer in 1986. Dkt. 22 at 3.

The second consideration weighs neutrally. On the

one hand, Palmer holds no degrees in religion,

theology, or ministry. On the other hand, she took

some graduate-level coursework in those areas at

Liberty and participated in some religious trainings

each semester as part of her professional

development. The Court does not credit Liberty’s

argument that Palmer’s personal religious devotion

and experience somehow constitutes “informal

qualification” as a minister. The controlling cases

clearly indicate that what is important is formal

religious training in preparation for a ministerial

role, not personal devotion. See Hosanna-Tabor, 565

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U.S. at 191 (“To be eligible to become a commissioned

minister, Perich had to complete eight college-level

courses in subjects including biblical interpretation,

church doctrine, and the ministry of the Lutheran

teacher.”) (emphasis added). No court has held that

personal devotion constitutes formal religious

training.

3. How Palmer Held Herself Out

The third consideration from Hosanna-Tabor is

“how the employee held herself out.” Hosanna-Tabor,

565 U.S. at 194. Palmer emphatically argues that she

did not consider herself a minister. In a deposition,

she stated: “I’m not a minister. I’m sorry. I’m not a

minister. I’m not ordained. I’m not licensed. I’m not

legally licensed. I’m not a minister.” Ex. B to Dkt. 22

at 28. Palmer further asserts that she does believe

that women can be ministers at all, stating that

“[s]cripturally, it says not to.” Id.; see also Leslie C.

Griffin, The Sins of Hosanna-Tabor, 88 IND. L.J. 981,

1007 (2013). (“One irony and injustice in the

ministerial rule is that female employees of

denominations that do not ordain ministers suddenly

become ministers at the moment they file[] a

lawsuit.”)

Palmer argues that while she might have held

herself out as a “Christian teacher,” she did not

regard herself as a “teacher of Christianity.” Dkt. 22

at 5. The record supports the fact that Palmer sought

to model Christian virtues in her role as a Professor

because of her personal belief system, but it is less

clear whether and to what extent she sought to impart

specifically theological lessons in her classes. In a

deposition, she differentiated between what she saw

as her role as a Christian person who taught art and

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Liberty’s purported version of her as a teacher of

religion: “Did I talk specifically about Christianity?

No. Being a person of faith and living accordingly is

different in a sense, in a broad sense, to teaching or

talking about Christianity during your classes with

students.” Ex. B to Dkt. 22 at 57–59.

Liberty argues that Palmer did regard herself as

ministering to her students in her classes and as part

of her broader professional duties. Liberty cites to an

essay (titled a “Christian Philosophy of Education”)

that Palmer wrote as part of one of her religion

courses at Liberty. Dkt. 13-1 at 20; Ex. F to Dkt. 13 at

¶ 21. In the essay, Palmer wrote that “[t]he purpose

of Christian education is that the student may know

God and do His will.” Ex. F to Dkt. 13 at ¶ 21. She

contrasted her view of Christian education with her

view of secular education: “Central in secular

education is the study of man and his environment.

Sociology, anthropology, social sciences and natural

sciences are given priority. In Christian education,

God, the Bible and God’s requirements are central.”

Id. Liberty concludes that this essay indicates that

Palmer regarded herself as a minister, and not just a

teacher of a purely secular subject. Dkt. 13-1 at 20.

The third consideration, how the employee held

herself out, weighs in favor of Palmer. Palmer asserts

that she does not believe that women can serve as

ministers. Accordingly, she has never referred to

herself as one. The record supports that while she

sees herself as a “Christian teacher,” she does not see

herself as a “teacher of Christianity”—i.e., while she

sought to model Christian virtues, she did not teach

theological concepts. Liberty’s citation to Palmer’s

essay on her philosophy of education is Liberty’s only

evidence that Palmer regarded herself as holding a

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ministerial role. While the essay does suggest that

Palmer saw her teaching duties as something more

than purely secular, it does not indicate that she saw

herself as a minister, especially in the absence of any

evidence that she actually incorporated the ideas in

the essay into her day-to-day teaching.

4. Palmer’s Job Functions

The fourth consideration from Hosanna-Tabor is

what functions the employee performed. HosannaTabor, 565 U.S. at 193–194. The Supreme Court

emphasized the primacy of this consideration in Our

Lady of Guadalupe: “What matters, at bottom, is

what an employee does.” 140 S. Ct. at 2064. Palmer

states that her primary job duty was to teach art

classes. Dkt. 15 at 4-5. She did not teach any type of

religious curriculum, such as Bible-study, theology,

religion, or ministry. Id. at 5. She contrasts her duties

with those of the plaintiffs in Hosanna- Tabor and

Our Lady of Guadalupe, who were primary school

teachers who taught theology-specific courses for at

least part of the day. Id. at 11. Unlike the plaintiffs in

those cases, she never taught theology-specific

courses; at most, she asserts, she modelled some

Christian values in the course of her secular teaching

duties. See id. at 11–12.

Liberty argues first on this point that Palmer

prayed with students and started each class session

with a prayer. Dkt. 13-1 at 18. Palmer concedes that

she began classes with a prayer. Dkt. 15 at 5. Second,

Liberty argues that Palmer attended convocation

with her students. Dkt. 13-1 at 18. However, unlike

the plaintiffs in Our Lady of Guadalupe, Palmer did

not take her students to worship services, but rather

happened to attend university-wide worship services

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at the same time as her students. Dkt. 15 at 5. Third,

Liberty argues that Palmer “incorporated Christian

principles in the classroom while integrating art and

the Bible.” Dkt. 13-1 at 19. Liberty argues that

Palmer periodically incorporated religious lessons

into her art classes and sought to develop a Master of

Fine Arts program which would “integrate a

Christian worldview into best practices for creating

visual imagery.” Id. at 3. Fourth, Liberty extensively

cites to its employment handbook and Palmer’s

employment agreements to argue that Palmer had

religious duties; Liberty argues that the handbook

and agreements signify that Palmer had a duty to

“integrate” Christian ministry into her art lessons. Id.

at 4. However, Liberty provides scant evidence of her

actually integrating theological lessons into her

classes, instead asserting generally that she did so.

See id.

On balance, this consideration weighs in Palmer’s

favor. The core function of Palmer’s job, teaching art

classes, was secular in nature. Although she led

students in prayer before class, the evidence in the

record does not support that she did anything more

ministerial, such as taking students to church

services or giving religious lessons.

Liberty’s evidence about its employee handbook

and Palmer’s employment agreement is only truly

relevant to the extent that Palmer acted consistently

with them. The question is not what Palmer was

supposed to do or encouraged to do, but what she

actually did. See Our Lady of Guadalupe, 140 S. Ct.

at 2064. Liberty cannot point to its voluminous

policies about faculty responsibilities as evidence that

Palmer undertook ministerial functions; it must

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provide evidence of her undertaking ministerial

actions. It has not put that evidence into the record.

The exact issue at hand here—whether Liberty

encouraging Palmer to integrate religious instruction

into her curriculum rendered her a minister—was the

main issue in the Supreme Judicial Court of

Massachusetts’s recent decision in DeWeese-Boyd v.

Gordon College, 163 N.E.3d 1000 (Mass. 2021).

DeWeese-Boyd held that the ministerial exception did

not apply to a religious college’s decision to terminate

a sociology professor. The arguments that Liberty

makes in this case closely echo the arguments that

Gordon College made in that case. Gordon College

requires faculty to adhere to a Statement of Faith and

certain behavioral standards, much like Liberty does.

DeWeese-Boyd, 163 N.E.3d at 1004. Gordon College

requires faculty to integrate a “Christian worldview”

into their curriculums, much like Liberty does. Id. at

1005. Both schools expect, but do not explicitly

require, that faculty will attend school-sponsored

religious services. The plaintiffs in both cases

engaged in some sort of personal religious study,

which the schools argued informally qualified them as

ministers. Id. And Gordon College’s employment

contracts did not “explicitly provide for any spiritual

responsibilities,” just as Liberty’s faculty handbook

and Palmer’s employment agreement did not. Id. at

1008.

In holding that the plaintiff was not a minister

within the meaning of the exception, the Court

emphasized that she “was not required to, and did

not, teach classes on religion, pray with her students,

or attend chapel with her students, like the plaintiffs

in Our Lady of Guadalupe . . . nor did she lead

students in devotional exercises like the plaintiff in

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Hosanna-Tabor.” Id. at 1012. The Court further

emphasized that she was “first and foremost, a

professor of social work.” Id. However, the Court

noted the difficult question posed by Gordon College’s

requirement that the plaintiff integrate a Christian

worldview into her curriculum. The plaintiff acted

consistently with that requirement by “submitting

scholarship on secular topics, teaching students about

connections between course material and the

Christian faith, and reflecting on the role of Christian

scholarship in the ‘decidedly nonsectarian’ field of

social work.” Id. at 1013. The Court noted that “[t]he

Supreme Court has not specifically addressed the

significance of the responsibility to integrate religious

faith into instruction and scholarship that would

otherwise not be considered ministerial” in its prior

ministerial exception cases, leaving the issue up to

lower courts to settle. Id. at 1002. The Court

ultimately held that the plaintiff’s “responsibility to

integrate the Christian faith into her teaching,

scholarship, and advising was different in kind, and

not degree, from the religious instruction and

guidance at issue in Our Lady of Guadalupe and

Hosanna-Tabor.” Id. at 1013.

The similarities between Palmer’s case and

DeWeese-Boyd are substantial. As Palmer notes in

one of her pleadings:

Ms. Palmer did not teach religion or Bible

study; she did not have any specialized training

to teach religion or Bible study; none of her

curricula or syllabi said she would be teaching

the faith or religion; none of her curricula or

syllabi said she that prayer or worship was part

of the course of study; she did not lead chapel

or worship services; she did not take her

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students religious services, and she was not

required to pray or worship with her students.

Dkt. 22 at 21. It would be a significant expansion of

the conception of the ministerial exception in Our

Lady of Guadalupe to hold that a teacher’s mere

obligation to integrate a Christian worldview into her

curriculum is part of what she “does,” especially in a

case with limited evidence of the teacher actually

integrating a Christian worldview into her

curriculum.

Some of the few other school-based ministerial

exception cases decided in the wake of Our Lady of

Guadalupe are also instructive. In Ostrander v. St.

Columba School, the Southern District of California

held that the ministerial exception did not apply

where the school’s primary evidence was what the

teacher was “supposed to do, not what she actually

did.” Ostrander v. St. Columba School, No. 3:31-cv175, 2021 WL 2054877 *6 (S.D. Cal. July 19, 2021)

(emphasis in original). While Liberty has provided

some evidence of what Palmer “did,” Liberty similarly

relies primarily on what Palmer was “supposed to do”

as evidenced by the faculty handbook and her

employment agreement. In Starkey v. Roman

Catholic Archdiocese of Indianapolis, Inc., 496 F.

Supp. 3d 1195 (S.D. Ind. 2020), the Court held that

the ministerial exception did not apply to an

elementary school’s decision to fire a long-time

employee who had served as a teacher of religion,

music, and drama as well as a guidance counselor

over her career at the school based on the employee’s

sexual orientation. The Court’s analysis centered on

the teacher’s overwhelmingly secular daily

responsibilities, and the fact that the employee did

not engage students in prayer or worship as the

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teachers in Our Lady of Guadalupe did. Palmer’s

daily functions were similarly overwhelmingly

secular. See id.

IV.

CONCLUSION

For the reasons stated, the Court holds that

Palmer was not a minister within the meaning of the

ministerial exception during her employment at

Liberty, so the ministerial exception does not bar her

claim. Therefore, the Court GRANTS Palmer’s

motion for summary judgment on the issue of the

ministerial exception, Dkt. 14, and DENIES Liberty’s

motion, Dkt. 13.

It is so ORDERED.

The Clerk of Court is directed to send this Order

to all counsel of record.

ENTERED this 1st day of December, 2021.

87a

[FILED DECEMBER 10, 2021]

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF VIRGINIA

LYNCHBURG DIVISION

EVA PALMER,

Plaintiff,

LIBERTY UNIVERSITY, INC.,

Defendant.

CASE NO. 6:20-cv-31

MEMORANDUM OPINION

JUDGE NORMAN K. MOON

This matter comes before the Court on Defendant

Liberty University’s second motion for summary

judgment, Dkt. 27, regarding Plaintiff Eva Palmer’s

allegation that Liberty wrongfully terminated her

employment in violation of the Age Discrimination in

Employment Act of 1967 (ADEA), 29 U.S.C. § 621, et

seq.1 Liberty argues that there is no genuine dispute

as to any material fact regarding the merits of

Palmer’s claim, and that Liberty therefore is entitled

to summary judgment.

Palmer was a long-time studio art professor at

Liberty, up until Liberty chose not to renew her

contract at the end of the 2017–2018 school year. She

claims that Liberty did not renew her contract

because of her age (79 at the time). In turn, Liberty

1 The Court previously denied Liberty’s first motion for summary

judgment on the issue of the ministerial exception, Dkt. 13, and

found instead in Plaintiff Eva Palmer’s favor on the same issue,

Dkt. 14, 35.

88a

argues that it did not renew Palmer’s contract

because she was unable to teach classes in digital art

or to teach classes on Liberty’s online platform, two

areas that had seen a significant increase in student

demand in the years leading up to Palmer’s

termination.

The Court must consider up to four legal issues:

(1) whether Palmer has established direct evidence of

age discrimination; (2) if she has not established

direct evidence, whether she has established

sufficient indirect evidence to make out a prima facie

employment discrimination case under the analysis

laid out in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973); (3) if she has made out a prima facie

case, whether Liberty has proffered a legitimate

nondiscriminatory reason for not renewing her

contract; and (4) if Liberty has proffered a legitimate

nondiscriminatory reason, whether that reason is

merely a pretext for age-based discrimination.

The Court will grant Liberty’s motion. There is no

genuine dispute of material fact with respect to two

issues. First is whether Palmer was meeting Liberty’s

legitimate expectations at the time of her

termination, which is an element of her prima facie

case. Second is whether Liberty’s proffered

nondiscriminatory reason for terminating Palmer

was merely pretext for age-based discrimination.

I. FACTS

A. Introduction

Eva Palmer taught art classes at Liberty

University from 1986 to 2018, when it chose not to

89a

renew her contract for the following academic year.2

Ex. F to Dkt. 31 at ¶ 6. Palmer mostly taught studio

art—painting, drawing, and ceramics, for instance.

Id. at ¶ 22. Over the course of her years at Liberty,

she progressed from “Art Instructor” to “full

Professor,” with several position titles in between. Id.

at ¶¶ 10–12. When Liberty hired her, she was 47. Id.

at ¶ 8. When Liberty fired her, she was 79. Id.

Liberty claims that it fired Palmer because she

was unable to teach courses in digital art or on

Liberty’s online platform. Palmer claims that Liberty

fired her because of her age.

B. Lead-up to Non-Renewal

After many years of teaching at Liberty, Palmer

applied for a full Professorship in 2013. Ex. 1 to Dkt.

28 at ¶ 19. After two failed attempts at receiving the

promotion, she worked with her supervisors,

including Mr. Todd Smith and Dr. Scott Hayes, to

develop a “Professional Development Plan” that laid

out Liberty’s expectations that she would have to

meet to receive the promotion. Id. at ¶¶ 21–22; Ex. F

to Ex. 1 to Dkt. 28. The Professional Development

Plan required her to improve her teaching

effectiveness, to increase her productivity in

scholarship, and, in a section titled “Regarding

Technology,” to develop a digital skillset. Ex. G to Ex.

1 to Dkt. 28. Administrators in Palmer’s department

wanted to increase their course offerings in the digital

arts—courses using tools like the Adobe Suite—

because of increased student demand for those

2 The Court construes the evidence in the light most favorable to

Palmer, the nonmoving party. See Variety Stores, Inc. v. WalMart Stores, Inc., 888 F.3d 651, 659 (4th Cir. 2018).

90a

courses, which tracked increased job market demand

for the skills taught in them. Ex. 1 to Dkt. 28 at ¶ 11.

Palmer did not understand the Professional

Development Plan as disciplinary, but instead

“entirely for the purposes of promotion.” Dkt. 31 at 12.

Palmer then made some efforts towards meeting

the goals laid out in the Professional Development

Plan. Most notably, she increased her scholarship

productivity, and presented artwork at several

conferences. Ex. 1 to Dkt. 28 at ¶ 24; Ex. 2 to Dkt. 28

at 120–30. Eventually, Liberty promoted her to “full”

Professor in 2016. Ex. 1 to Dkt. 28 at ¶ 24; Ex. H to

Ex. 1 to Dkt. 28.

Around the same time that Palmer was seeking a

promotion to full Professor, her supervisors requested

in a series of annual evaluations that she improve her

technological skills. Ex. 1 to Dkt. 28 at ¶¶ 13–14, 22;

Ex. C to Ex. 1 to Dkt. 28. Her supervisors had two

specific requests. First, they wanted her to be able to

teach courses in digital art. Ex. 1 to Dkt. 28 at ¶ 14.

Second, they wanted her to better incorporate

technology into the courses she already taught (e.g.,

by using software like Blackboard and PowerPoint).

Ex. 1 to Dkt. 28 at ¶¶ 14, 23; Ex. G to Dkt. 28. In 2013,

Mr. Smith recommended that Palmer take technology

courses through Liberty’s Center for Teaching

Excellence. Ex. 1 to Dkt. 28 at ¶ 22; Ex. F to Ex. 1 to

Dkt. 28. Palmer agreed that she needed to develop

better technological skills. Ex. 2 to Dkt. 28 at 99, 194–

195. In 2014, she wrote that “it is important to

understand technology, especially related to art and

animation, so I plan to continue to seek technology

instruction.” Ex. E to Ex. 1 to Dkt. 28. She wrote a

similar comment in 2015. Id. Although Palmer agreed

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with her supervisors’ general sentiment that she

needed to develop better digital skills, she did not

understand their requests as mandates on which her

job was contingent. Ex. 2 to Dkt. 28 at 70–72, 150–51.

She saw them as merely “goals for improvement.” Id.

at 131–32, 274–75.

Palmer never developed technological skills to

Liberty’s satisfaction. Ex. 1 to Dkt. 28 at ¶¶ 16–17,

23, 37. She took two courses on digital art and design.

Id. at ¶ 16. The first was a 1.5- hour class on Adobe

InDesign. Ex. D to Ex. 1 to Dkt. 28. The second was

titled “Exploring New Worlds of Virtual & Augmented

Reality.” Ex. 1 to Dkt. 28 at ¶ 16. Liberty believed

these courses to be insufficient to qualify Palmer to

teach digital art, especially because most of Liberty’s

faculty members who teach digital art begin their

employment at the school with backgrounds in the

industry. Id. at ¶¶ 16–17.

C. The Non-Renewal

In fall 2017, Liberty decided not to renew Palmer’s

contract for the following academic year. Ex. 1 to Dkt.

28 at ¶ 26. Palmer’s position was not tenured. Dkt. 28

at 21. Liberty grants employment contracts on a oneyear basis, finishing at the end of each spring

semester. Ex. 1 to Dkt. 28 at ¶ 25. Each fall, the Deans

of each school inform the Provost’s Office which

faculty they recommend not bringing back for the

following year. Ex. 1 to Dkt. 28 at ¶ 25. So, in

November 2017, Dr. Hayes, with input from Mr.

Smith, informed the Provost’s Office that he

recommended not renewing Palmer’s contract. Id.

Dr. Hayes gave two reasons to the Provost’s Office.

First, Palmer was not qualified to teach digital art, for

which Liberty was struggling to meet student

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demands. Second, she had not demonstrated a

sufficient ability to teach classes on Liberty’s online

platform (“Liberty University Online”), which was

also seeing an increase in student demand. Id. at ¶

27; Ex. I to Ex. 1 to Dkt. 28. As of that time, Palmer

was the only faculty member in the Studio & Digital

Arts Department who had not taught a class that

required digital literacy; she was also the only

member of the department who had not taught a class

on Liberty University Online. Ex. 1 to Dkt. 28 at ¶ 27.

In a letter to the Provost’s Office, Dr. Hayes

explained:

As the [Department of Studio & Digital Arts

(SADA)] curriculum continues to expand in the

digital area, the department needs faculty who

possess cross-over skills in digital and studio

art. Eva Palmer’s skill set lies only in the studio

art area. Because we’re struggling to have

enough courses in this area to fill a number of

schedules, it is presently difficult to make load

for faculty who have only studio skills. We also

have [Graduate Student Assistants (GSAs)]

who are qualified to teach lower level studio art

courses with professors of record.

...

At this time, Department Chair Todd Smith is

requesting a replacement position for Eva

Palmer to begin 2018-19. As the SADA

department continues to refine its curricular

offerings, the need for professors with crossover skills in studio and digital art. At present,

Eva Palmer’s contract load is made up of

mostly lower level studio art courses, where her

skill set is, and SADA GSAs can teach with

93a

professors of record, it is difficult to fill her

schedule. Also, a number of other SADA faculty

have the cross-over skills needed and can teach

these courses when needed. Our biggest

demand right now for lower level courses is in

the digital area, so she isn’t able to help us with

these courses.

Smith has recommended for several years

that Eva Palmer gain further skills with

digital design software. To date, this hasn’t

happened. . . . [W]e need cross-over SADA

faculty who are effective in the areas of

teaching and communication. The goal is to

implement the Dean’s vision for reaching the

culture through the arts by training the next

generation of artists to impact these fields.

Ex. J to Ex. 1 to Dkt. 28. Dr. Hayes explains the

apparent discrepancy between his recommendation

that Palmer be promoted to full Professor a year prior

and his recommendation that she now be terminated:

although Palmer had, in fact, increased her

scholarship productivity, which had been the main

barrier to her promotion, “that scholarship has not

resulted in improving the range of content that

Professor Palmer can teach.” Ex. 1 to Dkt. 28 at ¶ 30–

31. Dr. Hayes attests that at the time of Palmer’s

promotion, he had not anticipated that demand for

courses in digital art would so far outstrip demand for

courses in studio art, but, by the end of 2017, “it was

clear that the Digital Arts interest was increasing on

both Liberty’s residential and online platforms, and

that Studio Arts interest, residentially, was actually

decreasing.” Id. at ¶ 31.

94a

After deciding that they would end Palmer’s

employment with Liberty, Dr. Hayes and Mr. Smith

briefly discussed how, exactly, they would do so. They

discussed the possibility that Palmer would retire

instead of being outright terminated. Ex. D, F, T to

Dkt. 31. Smith sent Hayes a document in which he

listed Palmer as “Retiring,” not as a “Non-Renewal.”

Ex. D to Dkt. 31. The guidelines for completing the

document say that the word “Retiring” indicates that

the employee would be retiring at the end of the school

year. Id. Palmer, however, never indicated a desire to

retire to Hayes, Smith, or anyone else at Liberty. Dkt.

31 at 15. Later, in other paperwork, Dr. Hicks,

another administrator, noted that Liberty should

“consider transition to retirement” for Palmer. Ex. T

to Dkt. 31. Hicks attests that he wrote those words

because he had considered offering Palmer the

opportunity to retire and teach part time in the

following school year (rather than being outright

terminated) if she brought up retirement in response

to the notice of non-renewal. Ex. T1 to Dkt. 31. But

Palmer never brought up retirement, so Liberty never

offered her the chance. Ex. F to Dkt. 31 at ¶ 17.

After Liberty’s decision to terminate Palmer’s

employment, Hicks communicated with Hayes about

the possibility of giving Palmer a year’s notice to

improve her teaching ability. Ex. U to Dkt. 31. In

response, Hayes wrote that he did not think that

option was appropriate, because Palmer would “have

great difficulty with any changes, and this would most

likely exacerbate negative student experiences.” Id.

Then, Liberty finalized the non-renewal by notifying

Palmer in April 2018 that she would not be offered a

contract for the 2018–2019 academic year. Ex. 1 to

Dkt. 28 at ¶ 34.

95a

After Liberty terminated Palmer, the school hired

several new art instructors. Liberty posted a job

listing for an instructor who had “some experience in

studio art” along with “expertise in one of the

following: graphic design, animation, motion

graphics, UI/UX design, responsive web design, and

game design with some experience in studio art.” Ex.

L to Ex. 1 to Dkt. 28. Liberty sought a candidate who

had “experience with online teaching environment.”

Id. Between fall 2019 and spring 2020, Liberty hired

four new graphic design faculty members. Ex. 1 to

Dkt. 28 at ¶ 36. One of these new faculty members

was assigned the same “position number” as Palmer.

Id. All the new hires began at Liberty with a

background teaching graphic design and/or working

in the industry. Id. at ¶¶ 38–39.

II. LEGAL STANDARD

A. Summary Judgment

Summary judgment is appropriate where “there is

no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). “A dispute is genuine if a

reasonable jury could return a verdict for the

nonmoving party,” and “[a] fact is material if it might

affect the outcome of the suit under the governing

law.” Variety Stores, Inc. v. Wal-Mart Stores, Inc., 888

F.3d 651, 659 (4th Cir. 2018). The nonmoving party

must “show that there is a genuine dispute of material

fact . . . by offering sufficient proof in the form of

admissible evidence.” Id. (quoting Guessous v.

Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir.

2016)). The district court must “view the evidence in

the light most favorable to the nonmoving party” and

“refrain from weighing the evidence or making

96a

credibility determinations.” Id. “Although the court

must draw all justifiable inferences in favor of the

nonmoving party, the nonmoving party must rely on

more than conclusory allegations, mere speculation,

the building of one inference upon another, or the

mere existence of a scintilla of evidence.” Dash v.

Mayweather, 731 F.3d 303, 311 (4th Cir. 2013).

The moving party bears the burden of proving that

judgment on the pleadings is appropriate. Celotex

Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). If the

moving party meets this burden, then the nonmoving

party must set forth specific, admissible facts to

demonstrate a genuine issue of fact for trial.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986). The non-movant may not

rest on allegations in the pleadings; rather, it must

present sufficient evidence such that reasonable

jurors could find by a preponderance of the evidence

for the non-movant. Celotex Corp., 477 U.S. at 322–

24; Sylvia Dev. Corp. v. Calvert City, 48 F.3d 810, 818

(4th Cir. 1995).

B. ADEA

Under the ADEA, and employer may not

“discharge any individual or otherwise discriminate

against any individual . . . because of such individual’s

age.” 29 U.S.C. § 623(a)(1). A plaintiff can prove a

violation of the ADEA through direct or

circumstantial evidence. Westmoreland v. TWC

Admin. LLC, 924 F.3d 718, 725 (4th Cir. 2019). At the

summary judgment stage, a plaintiff alleging an

ADEA violation can establish a dispute of material

fact through circumstantial evidence using the

burden-shifting framework of McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802–04 (1973). The

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McDonnell Douglas framework follows three steps:

“(1) the plaintiff must establish a prima facie case of

discrimination or retaliation; (2) if the plaintiff

presents a prima facie case, then the burden shifts to

the defendant to show a legitimate nondiscriminatory or non-retaliatory reason for the

adverse employment action; and (3) if the defendant

shows such a reason, then the burden shifts to the

plaintiff to prove that the reason is pretextual.”

Sanders v. Tikras Tech. Sols. Corp., 725 F. App’x 228,

229 (4th Cir. 2018) (per curiam) (citing McDonnell

Douglas, 411 U.S. at 802–04; Guessous, 28 F.3d at

216). At the final stage, “[t]he employee must ‘prove

by a preponderance of the evidence that the

legitimate reasons offered by the defendant-employer

were not its true reasons, but were a pretext for

discrimination.” Texas Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 253 (1981).

III.

DISCUSSION

A. Has Palmer Established Direct Evidence of

Age Discrimination?

The first issue is whether Palmer has established

direct evidence of age discrimination sufficient to

overcome a summary judgment motion. Palmer

argues that she has provided direct evidence of age

discrimination; Liberty argues that she has not. If she

has proffered direct evidence of age discrimination,

the rest of the analysis is beside the point; direct

evidence on its own can suffice to prove a claim. Trans

World Airlines Inc. v. Thurston, 469 U.S. 111, 121

(1985) (“[T]he McDonnell Douglas test is inapplicable

where the plaintiff presents direct evidence of

discrimination.”).

98a

Palmer has not proffered direct evidence of age

discrimination. Direct evidence is “evidence of

conduct or statements that both reflect directly the

alleged discriminatory attitude and that bear directly

on the contested employment decision.” Warch v. Ohio

Cas. Ins. Co., 435 F.3d 510, 520 (4th Cir. 2006). “Even

if there is a statement that reflects a discriminatory

attitude, it must have a nexus with the adverse

employment action.” Id.; see also Brinkley v. Harbour

Recreation Club, 180 F.3d 598, 608 (4th Cir. 1999)

(holding that plaintiff “must produce evidence that

clearly indicates a discriminatory attitude at the

workplace and must illustrate a nexus between that

negative attitude and the employment action”).

Palmer argues that two pieces of evidence

constitute direct evidence of age discrimination. First,

she points to statements from Liberty officials

relating to her potential retirement. Dkt. 31 at 23.

She notes that before Liberty decided not to renew her

contract, one university administrator (Smith) sent

another (Hayes) a document that stated that Palmer

would be “Retiring” at the end of the school year,

when another option on the document was “NonRenewal.” Id. at 15 (quoting Ex. D to Dkt. 31). Palmer

never indicated to any administrator that she

intended to retire. Id. This document, Palmer argues,

“clearly indicates that Smith (and then Hayes) were

taking Palmer’s age into account when trying to slot

her for a ‘retirement’ position, rather than a straightup non-renewal.” Id.

Palmer argues that this line of “improper

thinking” regarding her employment continued

through Liberty’s decision not to renew her contract.

She notes that in the final paperwork distributed to

her during her non-renewal, Liberty stated it would

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“consider transition to retirement” for her. Id.

(quoting Ex. T to Dkt. 31). In a deposition, Dr. Hicks,

the administrator who authored the form, said that

he included the “retirement” language because

Liberty had decided that it might offer Palmer the

opportunity to take a form of semi-retirement and

teach a lower course load if she brought up the issue

of retirement in response to her non-renewal. Ex. T1

to Dkt. 31 at 16–23.

While forced retirements are often impermissible

under the ADEA, this is not a case of forced

retirement. See, e.g., Blistein v. St. John’s College, 74

F.3d 1459, 1468 (4th Cir. 1996) (citing different

circuits’ cases on forced retirement), overruled on

other grounds by Oubre v. Entergy Operations, Inc.,

522 U.S. 422 (1998). While Liberty may have

considered offering Palmer the opportunity to retire,

as Palmer freely admits, Liberty never actually

presented the opportunity to her. And further, the

undisputed evidence shows that Liberty only

contemplated offering Palmer the opportunity to

retire after already deciding that it would terminate

her for not developing digital skills. Nowhere in the

record is there evidence that retirement was

considered for Palmer earlier in Liberty’s decisionmaking process, much less forced retirement. And

further still, Palmer cites no authority for the

proposition that merely contemplating offering an

employee the opportunity to retire instead of

terminating them for performance-based reasons

constitutes

direct

evidence

age-based

discrimination. In fact, other courts have held that

similar circumstances have not constituted direct

evidence of discrimination. See, e.g., Harris v.

Powhatan Bd. of Supervisors, 2021 WL 2673045 at *4

100a

n.8 (E.D. Va. June 29, 2021) (noting the Court’s

“serious doubts” that a single suggestion that the

plaintiff retire “constitutes direct evidence of age

discrimination”); Stephens v. Gutierrez, 2010 WL

1005189 at *4 (E.D. Va. Mar. 15, 2010) (“[R]etirement

is not synonymous with age.”). The Court holds that

Liberty considering offering Palmer the opportunity

to retire, but not acting on that consideration, after

already having decided to fire her for performancebased reasons, does not constitute direct evidence of

age discrimination.

Palmer also argues that Liberty’s statements

about her being incapable of or resistant to “change”

are direct evidence of discrimination. Dkt. 31 at 23.

Palmer asserts that these comments relate solely to

her age, such that Liberty adopted an “old dog new

tricks mentality.” Id. at 16. But Palmer provides no

evidence that Liberty believed Palmer was resistant

to change solely, or even partially, because of her age.

Rather, the evidence shows that Liberty believed that

Palmer was resistant to change because of her

demonstrated failure to develop digital skills after her

supervisors repeatedly advised her to do so. See Ex. 1

to Dkt. 28 at 26–34. And while the Court is required

to “view[] all facts and reasonable inferences

therefrom in the light most favorable to the

nonmoving party,” Carter v. Fleming, 879 F.3d 132,

139 (4th Cir. 2018), no such “reasonable” inference

can be drawn here because nothing in those

statements indicates that Liberty thought Palmer

was resistant to change because of her age. Rather,

Palmer’s argument in this regard relies on conjecture

and speculation, which are insufficient to defeat a

motion for summary judgment. See Baber v. Hosp.

Corp. of. Am., 977 F.2d 872, 874–75 (4th Cir. 1992).

101a

Thus, the evidence regarding Palmer’s resistance to

change does not “clearly indicate[] a discriminatory

attitude.” See Brinkley, 180 F.3d at 608.

Even if the administrators’ comments do reflect

age-based discrimination, Palmer still must show by

a preponderance of the evidence that her age was the

but-for cause of her contract’s non-renewal. See Gross

v. FBL Fin. Serv., Inc., 557 U.S. 167, 177–78 (2009);

Westmoreland, 924 F.3d at 725. “[I]f there existed

other legitimate motivations for the decision, the

employee must offer sufficient evidence to show that

these factors were not ‘the reason’ for the employer's

decision.” Arthur v. Pet Dairy, 593 F. App’x 211, 220

(4th Cir. 2015) (quoting Gross, 557 U.S. at 176); see

also Westmoreland, 924 F.3d at 725 (An “employee

must prove that the employer would not have fired

her in the absence of age discrimination,” not merely

that “age was one of multiple motives” for the

decision.). It follows that “direct evidence of age

discrimination may not always be sufficient to create

a question of fact for trial in the ADEA context.”

Scheick v. Tecumseh Pub. Schs., 766 F.3d 523, 532

(6th Cir. 2014).

Even if

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