PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
LORI KENNEDY,
Plaintiff-Appellee,
v.
ST. JOSEPH’S MINISTRIES, INC., d/b/a
St. Joseph’s Ministries,
No. 10-1792
Defendant-Appellant.
ALLIANCE DEFENSE FUND; NATIONAL
ASSOCIATION OF EVANGELICALS,
Amici Supporting Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Paul W. Grimm, Magistrate Judge.
(1:09-cv-03021-PWG)
Argued: May 12, 2011
Decided: September 14, 2011
Before KING, SHEDD, and WYNN, Circuit Judges.
Reversed and remanded by published opinion. Judge Shedd
wrote the majority opinion, in which Judge Wynn joined.
Judge King wrote a dissenting opinion.
2 KENNEDY v. ST. JOSEPH’S MINISTRIES
COUNSEL
ARGUED: Leslie A. Powell, LAW OFFICES OF LESLIE A.
POWELL, Frederick, Maryland, for Appellant. Dennis
Chong, MICHAEL J. HOARE, PC, Washington, D.C., for
Appellee. ON BRIEF: Diana M. Schobel, Paul D. Flynn,
LAW OFFICES OF LESLIE A. POWELL, Frederick, Mary-
land, for Appellant. Michael J. Hoare, MICHAEL J. HOARE,
PC, Washington, D.C., for Appellee. Kevin Theriot, ALLI-
ANCE DEFENSE FUND, Leawood, Kansas, for Amici Sup-
porting Appellant.
OPINION
SHEDD, Circuit Judge:
Lori Kennedy filed a complaint under Title VII against her
former employer, Villa St. Catherine, Inc. (St. Catherine),1
alleging that it engaged in religious discrimination and retalia-
tion against her. After the district court2 denied St. Catherine’s
motion for summary judgment, St. Catherine filed this inter-
locutory appeal, contending that the plain language of 42
U.S.C. § 2000e-1(a), the religious organization exemption,
bars Kennedy’s claims. In answering the question that is prop-
erly before us, we agree with St. Catherine and, accordingly,
reverse the district court’s decision.
I.
St. Catherine is a tax-exempt religious organization which
1
St. Catherine recently became St. Joseph’s Ministries, Inc. We refer to
the entity as "St. Catherine," its title at the time the relevant events in this
action occurred.
2
The parties agreed to proceed before a magistrate judge. For the pur-
poses of this opinion, we treat the magistrate judge as the "district court."
KENNEDY v. ST. JOSEPH’S MINISTRIES 3
operates a nursing-care facility in Emmitsburg, Maryland.3 It
conducts itself under the direction of the Daughters of Char-
ity, a religious order within the Roman Catholic Church, and
maintains its facility in accordance with Catholic principles
by engaging in numerous religious exercises. For instance,
prayers are read over the intercom several times a day, the
facility holds Catholic Mass on Wednesdays, and communion
is available daily. In addition, a crucifix is displayed on the
wall of every resident’s room. Statues of the Virgin Mary,
Jesus, and St. Catherine’s patron saint (St. Catherine Laboure)
adorn the facility’s landscape. St. Catherine provides new
employees with a handout entitled "St. Catherine’s Nursing
Center Mission, Vision, and Values," which explains that "St.
Catherine’s Nursing Center is a family of faith rooted in the
loving ministry of Jesus as healer, and in the Catholic tradi-
tion of service." (J.A. at 24, 31). Likewise, the employee
handbook affirms St. Catherine’s Catholic identity.
Against this backdrop, St. Catherine employed Kennedy
from 1994 to 2007 as a geriatric nursing assistant. Kennedy
is a member of the Church of the Brethren and, "as a matter
of religious principle," wears "modest garb that includes long
dresses/skirts and a cover for her hair." (J.A. at 8-9). At some
point during Kennedy’s employment, the Assistant Director
of Nursing Services informed Kennedy that her attire was
inappropriate for a Catholic facility and that it made residents
and their family members feel uncomfortable. Kennedy
informed the Assistant Director that her attire was a function
of her religious beliefs and that she would not change it.
Thereafter, Kennedy’s employment was terminated on May
17, 2007.
In response, Kennedy filed this action, alleging claims
3
Because we are reviewing the district court’s denial of summary judg-
ment to St. Catherine, we view the factual evidence in the light most
favorable to Kennedy. Walker v. Prince George’s County, 575 F.3d 426,
427 (4th Cir. 2010).
4 KENNEDY v. ST. JOSEPH’S MINISTRIES
under Title VII for religious harassment, retaliatory discharge,
and discriminatory discharge on the basis of religion. St.
Catherine immediately moved for summary judgment,4 argu-
ing that as a "religious organization" it is exempt from Title
VII’s reach as to claims of religious discrimination. The dis-
trict court agreed with St. Catherine that Kennedy’s claim for
discriminatory discharge was barred but concluded that her
religious harassment and retaliation claims are cognizable
under Title VII. St. Catherine requested that the district court
certify the order for interlocutory appeal under 28 U.S.C.
§1292(b), noting the potential broad-reaching effect of the
ruling. The district court granted the request, and a panel of
this court subsequently granted St. Catherine’s petition for
permission to appeal.5
II.
On appeal, St. Catherine argues that the plain language of
§2000e-1(a), the religious organization exemption, makes
clear that Title VII does not apply to claims for religious
harassment and retaliation against religious organizations.6
We review such questions of statutory interpretation de novo.
4
St. Catherine filed a motion for summary judgment, rather than a
motion to dismiss, because it appended several documents indicating its
religious character. While there has been no discovery on the merits of
Kennedy’s claims, there are no facts in dispute regarding the issue before
us—indeed, Kennedy concedes that St. Catherine is a religious organiza-
tion under Title VII.
5
Although Kennedy opposed St. Catherine’s request that the district
court certify the order, she did not oppose St. Catherine’s petition for per-
mission to appeal before this court.
6
St. Catherine also argues that the canon of constitutional avoidance
should be applied to § 2000e-1(a). Because we believe the plain language
supports St. Catherine’s reading of the statute, we do not resort to this
canon, although we note that the district court itself found First Amend-
ment implications: "if this case marches forward to its ultimate resolution
through trial, which in all likelihood would encompass testimony about
religious beliefs, that would be the type of entanglement Congress
intended to avoid by enacting the exemption." (J.A. at 75).
KENNEDY v. ST. JOSEPH’S MINISTRIES 5
United States v. Ide, 624 F.3d 666, 668 (4th Cir. 2010). "Our
first step in interpreting a statute is to determine whether the
language at issue has a plain and unambiguous meaning with
regard to the particular dispute in the case." Robinson v. Shell
Oil Co., 519 U.S. 337, 340 (1997). If the statute is unambigu-
ous, "our inquiry into Congress’ intent is at an end, for if the
language is plain and the statutory scheme is coherent and
consistent, we need not inquire further." William v. Gonzales,
499 F.3d 329, 333 (4th Cir. 2007) (internal quotation marks
omitted). "[I]n looking to the plain meaning, we must con-
sider the context in which the statutory words are used
because ‘[w]e do not . . . construe statutory phrases in isola-
tion; we read statutes as a whole.’" Ayes v. United States
Dep’t of Veterans Affairs, 473 F.3d 104, 108 (4th Cir. 2006)
(quoting United States v. Morton, 467 U.S. 822, 828 (1984)).
With this legal framework in place, we turn to the issue
before us.
A.
Title VII makes it "an unlawful employment practice for an
employer . . . to fail or refuse to hire or to discharge any indi-
vidual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or privi-
leges of employment, because of," inter alia, an individual’s
"religion." 42 U.S.C. § 2000e-2(a)(1). Title VII also includes
a retaliation provision that makes it unlawful for an employer
"to discriminate against any individual . . . because he has
opposed any practice made an unlawful employment practice
by" Title VII. 42 U.S.C. § 2000e-3(a). Title VII is not without
bounds however, and has long included an exemption for reli-
gious organizations in certain circumstances. Specifically,
§ 2000e-1(a) provides that:
This subchapter [of Title VII] shall not apply to . . .
a religious corporation, association, educational
institution, or society with respect to the employment
6 KENNEDY v. ST. JOSEPH’S MINISTRIES
of individuals of a particular religion to perform
work connected with the carrying on by such corpo-
ration, association, educational institution, or society
of its activities.
42 U.S.C. § 2000e-1(a).7
Section 2000e-1(a) does not exempt religious organizations
from Title VII’s provisions barring discrimination on the basis
of race, gender, or national origin. Importantly, as originally
enacted, the exemption applied only to personnel decisions
related to carrying out an organization’s religious activities.
See Bishop of the Church of Jesus Christ of Latter-Day Saints
v. Amos, 483 U.S. 327, 334 n.9 (1987). The revised provision,
adopted in 1972, broadens the exemption to include any activ-
ities of religious organizations, regardless of whether those
activities are religious or secular in nature. Thus, "[t]he deci-
sion to employ individuals ‘of a particular religion’ under
§ 2000e-1(a) and § 2000e-2(e)(2) has been interpreted to
include the decision to terminate an employee whose conduct
or religious beliefs are inconsistent with those of its
employer." Hall v. Baptist Mem’l Health Care Corp., 215
F.3d 618, 624 (6th Cir. 2000).
As St. Catherine notes, the exemption for religious organi-
zations provides that the "subchapter," that is, § 2000e, "shall
not apply" with respect to the "employment" of individuals
"of a particular religion." The district court determined that
the term "employment" was synonymous with what it termed
"employment decisions" like hiring and firing. (J.A. at 70).
On appeal, Kennedy presses this reading of the statute, con-
7
In addition to this statutory exemption, we have also recognized a
"ministerial exception," to federal antidiscrimination laws compelled by
the First Amendment. Rayburn v. Gen. Conference of Seventh-Day
Adventists, 772 F.2d 1164, 1166-67 (4th Cir. 1985). This exception, which
exempts ministerial employees more broadly from anti-discrimination
laws, is not at issue in this case.
KENNEDY v. ST. JOSEPH’S MINISTRIES 7
ceding that §2000e-1(a) bars her discriminatory discharge
claim but contending that the exemption does not reach
harassment or retaliation claims.
This narrow reading of "employment" is simply incompati-
ble with the actual language of §2000e-1(a). First, "as in all
statutory construction, unless otherwise defined, words will
be interpreted as taking their ordinary, contemporary, com-
mon meaning." Bilski v. Kappos, 130 S. Ct. 3218, 3226
(2010) (internal quotation marks and alterations omitted).
Today, as at the time §2000e-1(a) was originally enacted,
"employment" means "the relationship between master and
servant" and "the state of being employed". Black’s Law Dic-
tionary 9th ed.; see also Merriam-Webster’s Collegiate Dic-
tionary (11th Ed. 2004) (defining "employment" as "activity
in which one engages or is employed" or "the act of employ-
ing: the state of being employed"); Associated Gen. Contrac-
tors of America, Houston Chapter, 143 N.L.R.B. 409, 412,
enforced, 349 F.2d 449 (5th Cir. 1965) ("‘[E]mployment’
connotes the initial act of employing as well as the consequent
state of being employed."). As the Second Circuit has
explained:
"In instances where Congress uses terms-such as . . .
employment-"that have accumulated settled meaning
under . . . the common law," courts generally infer,
unless the statute indicates otherwise, that "Congress
means to incorporate the established meaning of
these terms," e.g., "the conventional master-servant
relationship as understood by common-law agency
doctrine."
Barfield v. New York City Health & Hosps. Corp., 537 F.3d
132, 141 (2d Cir. 2008) (quoting Nationwide Mut. Ins. Co. v.
Darden, 503 U.S. 318, 322-23 (1992)). This definition, which
covers the breadth of the relationship between the employer
and employee, clearly indicates that §2000e-1(a) should not
be limited to hiring and firing decisions.
8 KENNEDY v. ST. JOSEPH’S MINISTRIES
The use of the term "employment" elsewhere in Title VII
buttresses this conclusion. Congress used the term "employ-
ment" in the operative section of Title VII, labeling as unlaw-
ful the failure or refusal "to hire or to discharge any
individual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or privi-
leges of employment" on discriminatory grounds. 42 U.S.C.
§ 2000e-2(a)(1) (emphasis added). Again, the term "employ-
ment" in this section encompasses more than hiring or firing;
if the term were so limited, the second clause would be super-
fluous. See Los Angeles Dept. of Water & Power v. Manhart,
435 U.S. 702, 707, n. 13 (1978) (internal quotation marks
omitted) (noting that the clause "terms, conditions, or privi-
leges of employment" evinces Congress’ intent "to strike at
the entire spectrum of disparate treatment of men and women"
in employment). Moreover, there is a "presumption that a
given term is used to mean the same thing throughout a stat-
ute." Brown v. Gardner, 513 U.S. 115, 118 (1994). "Employ-
ment," as used throughout Title VII, simply covers a much
broader understanding than mere hiring and firing. Indeed, if
Congress had intended to limit §2000e-1(a) to hiring and fir-
ing it could have copied the first clause from §2000e-2(a)(1),
exempting religious organizations from Title VII with respect
to the decision "to hire or to discharge" an individual of a par-
ticular religion. It did not, and instead chose the broader term
"employment."
Kennedy’s harassment and retaliation claims both arise
from her "state" of "being employed." In addition, the "sub-
chapter" referred to in §2000e-1(a) includes both § 2000e-
2(a)(1), which covers harassment and discriminatory dis-
charge claims, and § 2000e-3(a), which covers retaliation
claims. See 42 U.S.C. § 2000e-3(a) (retaliation); Meritor Sav.
Bank v. Vinson, 477 U.S. 57, 64 (1986) (holding harassment
is discrimination on the basis of the "terms, conditions, or
privileges of employment" under § 2000e-2(a)(1)). Thus,
Kennedy’s three claims—discharge, harassment, and
retaliation—all arise from the "subchapter" covered by the
KENNEDY v. ST. JOSEPH’S MINISTRIES 9
religious organization exemption, and they all arise from her
"employment" by St. Catherine. See Saeemodarae v. Mercy
Health Serv., 456 F.Supp.2d 1021, 1041 (N.D. Iowa 2006)
(holding retaliation claim fell within the exemption because
the retaliation provision is within the same "subchapter");
Lown v. Salvation Army, Inc., 393 F.Supp.2d 223, 254
(S.D.N.Y. 2005) (same).
This conclusion conforms with the purpose behind the
exemption as well:
Congress intended the explicit exemptions to Title
VII to enable religious organizations to create and
maintain communities composed solely of individu-
als faithful to their doctrinal practices, whether or
not every individual plays a direct role in the organi-
zation’s "religious activities."
Little v. Wuerl, 929 F.2d 944, 951 (3d Cir. 1991). Thus, in Lit-
tle, a Catholic school was permitted to decline to renew a
teacher’s contract when she remarried: "permission to employ
persons ‘of a particular religion’ includes permission to
employ only persons whose beliefs and conduct are consistent
with the employer’s religious precepts." Id.
In sum, if Congress had wished to limit the religious orga-
nization exemption to hiring and discharge decisions, it could
clearly have done so. Instead, it painted with a broader brush,
exempting religious organizations from the entire "subchap-
ter" of Title VII with respect to the "employment" of persons
of a "particular religion." This exemption "reflect[s] a deci-
sion by Congress that the government interest in eliminating
religious discrimination by religious organizations is out-
weighed by the rights of those organizations to be free from
government intervention." Id.
Further, a contrary interpretation of "employment" would
lead to nonsensical results. Kennedy admits that St. Catherine
10 KENNEDY v. ST. JOSEPH’S MINISTRIES
could fire her for her religion without any recourse.8 But, by
first asking if she would consider changing her clothing
before terminating her—i.e., by giving her the opportunity to
keep her job—St. Catherine would suddenly open itself up to
the strictures of Title VII. Such an approach cannot be
squared with Congress’ desire in the first instance to permit
a cooperative, accommodative approach to workplace dis-
crimination. See Alexander v. Gardner-Denver Co., 415 U.S.
36, 44 (1974) (noting "[c]ooperation and voluntary compli-
ance were selected as the preferred means for achieving" the
"equality of employment opportunities by eliminating [dis-
crimination]"). Instead, Kennedy’s view of the statute would
counsel religious organizations to immediately discharge an
employee over any religious issue rather than consider some
attempt at compromise to permit the employee to remain
employed.9
8
To the extent this reading of the exemption purports to impinge on the
employee’s free exercise rights, "it was the Church . . . and not the Gov-
ernment, who put [the employee] to the choice of changing his religious
practices or losing his job." Amos, 483 U.S. at 337 n.15.
9
In reaching an opposite conclusion, the district court relied, in part, on
the EEOC Compliance Manual, which provides that "the exemption only
applies to hiring and discharge, and does not apply to terms, conditions,
or privileges of employment, such as wages or benefits." EEOC Compli-
ance Manual § 2 (available at http://www.eeoc.gov/policy/docs/
threshold.html#2-III-B-4-b) (last visited May 25, 2011).
Because we believe the exemption’s language is unambiguous, we need
not defer to the manual. Moreover, this interpretation, which is viewed
under Skidmore deference, contains no attendant rationale, lacks the power
to persuade, and does not warrant deference. See United States Dep’t of
Labor v. N.C. Growers Ass’n, 377 F.3d 345, 354 (4th Cir. 2004) (declin-
ing to grant Skidmore deference to Labor Department interpretation that
lacked "thoroughness" and failed to provide an "explanation" to support
its rationale). The provision is a far cry from the cases cited by Kennedy,
in which the Supreme Court referenced the Compliance Manual. See e.g.,
Clackamas Gastroenterology Assoc., P.C. v. Wells, 538 U.S. 440, 448-49
(2003) (discussing Compliance Manual provision that reviewed sixteen
factors for consideration drawn from an earlier Supreme Court case).
KENNEDY v. ST. JOSEPH’S MINISTRIES 11
III.
In his dissent, Judge King insists that we should not decide
this appeal. The district court; a panel of this court (comprised
of Judge Agee, Judge Motz, and Judge King); two members
of this panel; and (as noted above) both parties, agree that we
have jurisdiction over this interlocutory appeal. However,
Judge King now declares we should not hear it. Noting that
he was on the panel that granted permission to appeal, Judge
King states that after full briefing and oral argument he has
decided that action was "improvident." (Dissent Op. at 16). In
his view, because it is "far from clear" that Kennedy has
stated a viable Title VII claim, (Dissent Op. at 16), we should
dismiss the appeal and "wait for the district court to determine
whether Kennedy has stated and can prove" her claims, (Dis-
sent Op. at 19). To our knowledge, there is nothing in the
record before us now that was unavailable at the time certifi-
cation was granted, and the parties do not address—much less
oppose—the propriety of the certification in their briefs.
We disagree with Judge King for several reasons. First, the
requirements of § 1292(b) are clearly satisfied in this case.
That provision provides that certification by a district court is
appropriate if the district court’s order "involves a controlling
question of law as to which there is substantial ground for dif-
ference of opinion" and "immediate appeal . . . may materially
advance the ultimate termination of the litigation." Both
requirements are met in this case. We are faced with a pure
question of law and our resolution of it terminates the case.
It was thus properly within our discretion to permit the
appeal. Nothing has changed since we granted permission to
appeal which causes § 1292(b) to be inapplicable.
Second, there is no doctrine counseling courts to avoid rul-
ing on legal issues involving undisputed facts that are before
them. To the contrary, that is the crux of Article III power and
exercising such authority does not create an advisory opinion.
Courts have a "virtually unflagging obligation . . . to exercise
12 KENNEDY v. ST. JOSEPH’S MINISTRIES
the jurisdiction given them." Colorado River Water Conser-
vation Dist. v. United States, 424 U.S. 800, 817 (1976). Thus,
even the Supreme Court has answered legal questions posed
in § 1292(b) orders before the factual development of the
record has occurred. See, e.g., Sumitomo Shoji America, Inc.
v. Avagliano, 457 U.S. 176, 179 (1982) (noting that Sumi-
tomo moved to dismiss Title VII case on ground that statute
did not apply to its actions "[w]ithout admitting the alleged
discriminatory practice," and that the circuit court accepted an
interlocutory appeal under § 1292(b) denying the motion to
dismiss).
Third, we are fully cognizant of the doctrine of constitu-
tional avoidance. See Snyder v. Phelps, 580 F.3d 206, 227
(4th Cir. 2009) (Shedd, J., concurring), affirmed on other
grounds 131 S.Ct. 1207 (2011). In fact, as noted supra note
5, we are actually applying that doctrine in this case to avoid
reaching St. Catherine’s First Amendment argument. How-
ever, Judge King’s reliance on some form of statutory avoid-
ance simply has no place in this case. Indeed, if the district
court in this case had, for instance, granted St. Catherine’s
motion to dismiss for failure to state a claim without address-
ing Title VII’s religious exemption, we nonetheless would be
free on appeal to affirm on the statutory basis without consid-
ering the merits. See, e.g., Pitt County v. Hotels.com, L.P.,
553 F.3d 308, 311 (4th Cir. 2009) (noting "we are not limited
to evaluation of the grounds offered by the district court to
support its decision, but we may affirm on any grounds appar-
ent from the record.") (internal quotation marks and alter-
ations omitted). Judge King’s proposed course would lead to
an anomalous result—we could address the statutory issue
even if the district court declined to do so, but we should not
address it when—as here—it is the only issue properly before
us.
Finally, Judge King’s approach would also waste judicial
resources by mandating that we remand a case which he
believes lacks any substantial merit for further proceedings
KENNEDY v. ST. JOSEPH’S MINISTRIES 13
and (possibly) costly discovery. This waste of judicial
resources would not be limited to this case because Judge
King’s approach would counsel district courts to refrain from
dismissing cases on statutory legal grounds when it is possible
that the party will lose on the merits at some indeterminate
point in the future. As we have noted before, "[r]epetitive
hearings, followed by additional appeals, waste judicial
resources and place additional burdens on . . . district and
appellate judges" while also siphoning those resources from
more worthwhile cases. Doe v. Chao, 511 F.3d 461, 465-66
(4th Cir. 2007) (internal quotation marks omitted).
IV.
Because the plain language of §2000e-1(a) exempts reli-
gious organizations like St. Catherine from Kennedy’s claims
of religious discrimination, the district court erred in denying
St. Catherine’s motion for summary judgment. We therefore
reverse the district court’s order and remand with instructions
to enter judgment in favor of St. Catherine.
REVERSED AND REMANDED
KING, Circuit Judge, dissenting:
I must respectfully dissent from the majority’s decision
because it unnecessarily settles a novel and complex statutory
issue, thereby contravening the fundamental principle of judi-
cial restraint. In one fell swoop, the majority interprets the 42
U.S.C. § 2000e-1(a) exemption to shield religious organiza-
tions from every Title VII claim alleging either religious
harassment or retaliation for opposing such harassment.
Rather than solve the difficult problem of whether the exemp-
tion stretches that far, I would decertify and dismiss this 28
U.S.C. § 1292(b) interlocutory appeal, leaving the district
court to answer the much simpler questions of whether Ken-
nedy has adequately pleaded or can forecast sufficient evi-
dence to prove a Title VII violation. If not, St. Catherine
14 KENNEDY v. ST. JOSEPH’S MINISTRIES
would be entitled to dismissal or summary judgment, and the
issue of the exemption’s reach would be moot.1
I.
It is generally understood that § 1292(b) of Title 28 "should
be used sparingly." Myles v. Laffitte, 881 F.2d 125, 127 (4th
Cir. 1989); see also Coopers & Lybrand v. Livesay, 437 U.S.
463, 475 (1978) (recognizing that use of § 1292(b) is reserved
for "exceptional circumstances [that] justify a departure from
the basic policy of postponing appellate review until after the
entry of a final judgment" (internal quotation marks omitted)).
That jurisdictional provision authorizes a district court, in ren-
dering an otherwise unappealable order in a civil action, to
state in writing that (1) "such order involves a controlling
question of law as to which there is substantial ground for dif-
ference of opinion" and (2) "an immediate appeal from the
order may materially advance the ultimate termination of the
litigation." 28 U.S.C. § 1292(b). If application is made to the
appropriate court of appeals within ten days after the certifica-
tion, the appellate court "may thereupon, in its discretion, per-
mit an appeal to be taken from such order." Id. Of course, the
court of appeals may later dismiss the § 1292(b) appeal if it
becomes apparent that review was improvidently granted.
See, e.g., Wilson v. Ferrell, 738 F.2d 637, 638 (4th Cir. 1984)
("Upon further consideration of the facts, issues, and course
1
The majority, in Part III of its opinion, appears to misapprehend the
essential predicate of my dissent. I do not contest our discretionary juris-
diction or seek to construct some doctrine of "statutory avoidance."
Rather, I am convinced that we should, in these circumstances, simply
apply and exercise judicial restraint. In the words of the D.C. Circuit, "[i]f
we do not decide it now, we may never need to. Not only does this ratio-
nale protect the expenditure of judicial resources, but it comports with our
theoretical role as the governmental branch of last resort. Article III courts
should not make decisions unless they have to." Nat’l Treasury Emp.
Union v. United States, 101 F.3d 1423, 1431 (D.C. Cir. 1996) (citing Allen
v. Wright, 468 U.S. 750, 752 (1984) (O’Connor, J.) (underscoring "the
Art. III notion that federal courts may exercise power only in the last
resort, and as a necessity" (internal quotation marks omitted))).
KENNEDY v. ST. JOSEPH’S MINISTRIES 15
of proceedings to date in this action, we are of opinion that
permission to appeal under 28 U.S.C. § 1292(b) was improvi-
dently granted.").
Kennedy alleged three claims against St. Catherine under
Title VII — religious harassment, retaliatory discharge for
opposing such harassment, and discriminatory discharge
premised on her religion. St. Catherine filed an answer to the
complaint and, before the parties had completed any discov-
ery, moved for summary judgment asserting that the 42
U.S.C. § 2000e-1(a) exemption for religious organizations
precludes all of Kennedy’s claims regardless of their merits.
In response, Kennedy conceded that her discriminatory dis-
charge claim was barred by the exemption but opposed the
motion as to her harassment and retaliation claims. The dis-
trict court denied summary judgment as to those two claims,
concluding that the exemption did not apply. See Kennedy v.
Villa St. Catherine’s, Inc., 709 F. Supp. 2d 404 (D. Md.
2010). Nevertheless, the court granted St. Catherine’s request
for certification of a § 1292(b) interlocutory appeal. See Ken-
nedy v. Villa St. Catherine’s, Inc., No. 1:09-cv-03021 (D. Md.
June 16, 2010) (the "Certification Order").2
In concluding that a § 1292(b) appeal was appropriate, the
district court identified the controlling question of law to be
whether § 2000e-1(a) "exempts a religious institution from
liability when the religious discrimination it purportedly com-
mits takes the form of religious harassment." Certification
Order 2. The court also concluded that "substantial grounds
for difference may be found by virtue of the strong public pol-
icy purpose served by" § 2000e-1(a). Id. at 4. And, over Ken-
nedy’s objection that "the case might settle or summary
judgment might be entered on other grounds," the court sur-
2
The unpublished Certification Order is found at J.A. 72-76. (Citations
herein to "J.A. __" refer to the contents of the Joint Appendix filed by the
parties in this appeal.)
16 KENNEDY v. ST. JOSEPH’S MINISTRIES
mised that immediate "appeal may lead to a possible terminus
for the case." Id. at 4-5.
Within ten days of the Certification Order’s entry, St. Cath-
erine filed in this Court a petition for permission to appeal,
which we granted by order of July 14, 2010. Although I was
a member of the panel that granted the petition, I am now
convinced — with the benefit of full briefing and oral argu-
ment — that our action was improvident. Accordingly, as fur-
ther explained below, I would dismiss the appeal and await
additional district court proceedings.
II.
A.
Notwithstanding the possible applicability of the 42 U.S.C.
§ 2000e-1(a) exemption, it is far from clear that Kennedy’s
religious harassment and retaliation claims can survive a Fed-
eral Rule of Civil Procedure 12(b)(6) motion to dismiss or a
Rule 56 motion for summary judgment. As of yet, the parties
have not conducted discovery, but the viability of Kennedy’s
claims can be gauged from the operative First Amended Com-
plaint of December 9, 2009 (the "Complaint").3
According to the Complaint, Kennedy was employed as a
geriatric nursing assistant at St. Catherine’s Nursing Center in
Emmitsburg, Maryland, from 1994 through May 2007. See
Complaint ¶¶ 3, 6-7. During that time, she wore "modest garb
that include[d] long dresses/skirts and a cover for her hair" in
reverence to her personal religious beliefs as a member of the
Church of the Brethren. Id. at ¶¶ 8-9. Kennedy alleges that the
Center’s Director of Nursing Services (while acting in that
capacity and in a prior role as Assistant Director of Nursing
Services) "subjected [Kennedy] to a course of conduct which
included unwelcome, inappropriate and offensive comments
3
The Complaint is found at J.A. 7-11.
KENNEDY v. ST. JOSEPH’S MINISTRIES 17
regarding [her] religious garb." Id. at ¶ 11. Notably, the Com-
plaint specifies only that the alleged harassment "included
comments that [Kennedy’s] garb was inappropriate in a Cath-
olic institution," that it "made the residents’ family members
uncomfortable" and "made [Kennedy] stand out," and that she
"should remove her hair covering" and "should conform to a
more traditional mode of dress." Id. at ¶ 12. Those comments
were uttered "in the presence of [the] Center’s Administra-
tor/CEO[,] who did nothing to halt [them]." Id. at ¶ 13. Mean-
while, Kennedy protested "that the comments about [her] garb
were unwelcome and offensive to her[,] and that her garb was
a function of her religion and did not interfere with her pro-
fessional responsibilities." Id. at ¶ 17. Ultimately, St. Cather-
ine "terminated [Kennedy’s] employment on May 17, 2007."
Id. at ¶ 18.
For success on her religious harassment claim, Kennedy
must plead and be able to prove a hostile work environment,
i.e., "that the harassment was (1) unwelcome, (2) because of
religion, (3) sufficiently severe or pervasive to alter the condi-
tions of employment and create an abusive atmosphere, and
(4) imputable to [St. Catherine]." EEOC v. Sunbelt Rentals,
Inc., 521 F.3d 306, 313 (4th Cir. 2008). The "severe or perva-
sive" element may be particularly troublesome for Kennedy,
because it requires a showing that the environment was both
subjectively and objectively hostile or abusive. Id. at 315. To
satisfy that objective component, "the harassing ‘conduct
must be [so] extreme [as] to amount to a change in the terms
and conditions of employment.’" Id. (alterations in original)
(quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788
(1998)). Proof of "an employment atmosphere that is ‘perme-
ated with discriminatory intimidation, ridicule, and insult’"
will satisfy Kennedy’s burden, id. (quoting Harris v. Forklift
Sys., Inc., 510 U.S. 17, 21 (1993)), whereas a mere demon-
stration of "‘simple teasing, offhand comments, and isolated
18 KENNEDY v. ST. JOSEPH’S MINISTRIES
incidents (unless extremely serious) will not,’" id. (quoting
Faragher, 524 U.S. at 788).4
It is highly questionable whether the Complaint sufficiently
alleges the "severe or pervasive" element of Kennedy’s reli-
gious harassment claim. Although Federal Rule of Civil Pro-
cedure 8 "does not require ‘detailed factual allegations,’" it
does demand that a complaint "contain sufficient factual mat-
ter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570
(2007)). "[W]here the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct,
the complaint has alleged — but it has not ‘show[n]’ — ‘that
the pleader is entitled to relief.’" Id. at 1950 (alteration in
original) (quoting Fed. R. Civ. P. 8(a)(2)). Here, the Com-
plaint’s allegations raise the possibility that the comments
about Kennedy’s religious garb created an atmosphere so abu-
sive that they altered the conditions of her employment, but
additional facts (as opposed to conclusory statements) would
likely be necessary to show, objectively, that those comments
were sufficiently severe or pervasive. Cf. Bonds v. Leavitt,
629 F.3d 369, 385 (4th Cir. 2011) (affirming dismissal of race
and gender harassment claim because the plaintiff’s allega-
tions "fall well short of alleging an abusive working environ-
ment").
It is also unclear whether the alleged facts are adequate to
sustain Kennedy’s claim of retaliation for opposing religious
harassment. To prevail on her retaliation claim, Kennedy must
show that (1) she "engaged in a protected activity," (2) St.
Catherine "acted adversely against [her]," and (3) her "pro-
tected activity was causally connected to [St. Catherine’s]
4
Notably, at oral argument in this appeal, counsel for St. Catherine
expressed confidence that, with the benefit of discovery, Kennedy’s
claims would be defeated on the merits because St. Catherine "didn’t
harass her at all."
KENNEDY v. ST. JOSEPH’S MINISTRIES 19
adverse action." Beall v. Abbott Labs., 130 F.3d 614, 619 (4th
Cir. 1997). Kennedy asserts that she undertook a "protected
activity" when she opposed the harassing comments made
about her religious garb. See 42 U.S.C. § 2000e-3(a) (prohib-
iting discrimination against an employee "because he has
opposed any practice made an unlawful employment practice
by this title"). As discussed above, Kennedy’s religious
harassment claim is of dubious merit. Kennedy might seek
solace in the accepted proposition that § 2000e-3(a) "protects
activity in opposition not only to employment actions actually
unlawful under Title VII but also employment actions an
employee reasonably believes to be unlawful." EEOC v. Navy
Fed. Credit Union, 424 F.3d 397, 406 (4th Cir. 2005). Impor-
tantly, however, "[b]ecause the analysis for determining
whether an employee reasonably believes a practice is unlaw-
ful is an objective one, the issue may be resolved as a matter
of law." Jordan v. Alt. Res. Corp., 458 F.3d 332, 339 (4th Cir.
2006). And it is not certain here that the Complaint provides
enough facts to credit the reasonableness of Kennedy’s belief
that the comments she protested rose to the level of unlawful
harassment. Further questions remain for the summary judg-
ment stage as to whether Kennedy’s discharge was "causally
connected" to her protests against the comments; for example,
St. Catherine may have possessed some other, non-retaliatory
reason to terminate Kennedy’s employment.
B.
Rather than wait for the district court to determine whether
Kennedy has stated and can prove religious harassment and
retaliation claims, the majority deems all such Title VII
claims against religious organizations to be barred by the
§ 2000e-1(a) exemption. There is no principled reason to
decide the exemption issue today, however, because "the stat-
utory exemptions from religious discrimination claims under
Title VII cannot be waived by either party." See Hall v. Bap-
tist Mem’l Health Care Corp., 215 F.3d 618, 625 (6th Cir.
2000). Furthermore, "the cardinal principal of judicial
20 KENNEDY v. ST. JOSEPH’S MINISTRIES
restraint" — "that if it is not necessary to decide more, it is
necessary not to decide more" — counsels against reaching
the exemption issue before Kennedy’s claims are measured
against the Rule 12(b)(6) and 56 standards. See Goodman v.
Praxair, Inc., 494 F.3d 458, 476 (4th Cir. 2007) (en banc)
(Williams, C.J., concurring in part) (internal quotation marks
omitted).
In recognition of the principle that "[m]oot questions
require no answer," Mo., Kan. & Tex. Ry. Co. v. Ferris, 179
U.S. 602, 606 (1900), courts have judiciously declined to
entertain § 1292(b) appeals where the question certified may
be mooted by further proceedings in the district court. See,
e.g., Sandler v. E. Airlines, Inc., 649 F.2d 19, 20 (1st Cir.
1981) (dismissing § 1292(b) appeal without addressing merits
of question certified on scope of Title VII because, inter alia,
it was unclear whether complaint stated cause of action);
United States v. Rent-A-Homes Sys. of Ill., Inc., 602 F.2d 795,
797 (7th Cir. 1979) (explaining that court had previously dis-
allowed § 1292(b) appeal of district court order precluding
monetary damages because, if "plaintiff fail[ed] to prove its
case below," damages issue would "never be reached" (inter-
nal quotation marks omitted)). Here, too, we will not have to
address the question certified, on the scope of the § 2000e-
1(a) exemption, if St. Catherine can otherwise prevail on a
motion to dismiss or a motion for summary judgment.
Significantly, "[t]he potential for mootness takes on even
greater weight . . . when the question we may never have to
address presents sophisticated and unprecedented questions."
Cf. Gen. Acquisition, Inc. v. GenCorp, Inc., 23 F.3d 1022,
1030-31 (6th Cir. 1994) (concluding that interlocutory appeal
was not properly certified under Federal Rule of Civil Proce-
dure 54(b) given "significant possibility" that "novel and com-
plex questions of state law presented on appeal" would
subsequently "be rendered moot"). For, "[i]n keeping with
notions of judicial restraint, federal courts should not reach
out to resolve complex and controversial questions unneces-
KENNEDY v. ST. JOSEPH’S MINISTRIES 21
sarily." Id. (internal quotation marks omitted). The question
presented in this § 1292(b) appeal is one of first impression
in this Circuit with profound implications — one that proba-
bly need not be reached. As such, the majority issues what is
effectively an advisory opinion construing a remedial statute
to broadly preclude claims for relief.5
I am loath to join the majority in its unwarranted endeavor
and thus respectfully dissent.
5
I fear the majority has decided the question certified without the proper
factual context. See Paschall v. Kan. City Star Co., 605 F.2d 403, 406 (8th
Cir. 1979) ("Inherent in [the § 1292(b)] requirements is the concept of
ripeness. . . . The purpose of [§] 1292(b) is not to offer advisory opinions
rendered on hypotheses which evaporate in the light of full factual devel-
opment." (internal quotation marks and alteration omitted)). The majority
adopts a seemingly boundless interpretation of "employment" as more
than "hiring and firing" even though it is unclear from the Complaint that
Kennedy’s employment was, in fact, affected apart from her termination.
Interpreting the scope of the § 2000e-1(a) exemption absent adequate fac-
tual development exceeds our judicial mandate. We decide cases on
appeal based on the facts in the record before us.