Equal Employment Opportunity Commission and Elizabeth McDonough v. The Catholic University of America

KAREN LeCRAFT HENDERSON, Circuit Judge,

concurring:

I, like the late esteemed Judge Gesell in Minker, “concur in the result and respectfully note my concerns.” Minker v. Baltimore Annual Conf., 894 F.2d 1354, 1361 (D.C.Cir.1990). Although our concerns are not identical — the Minker court affirmed the district *471court’s early dismissal of the plaintiffs ADEA claim and Judge Gesell was reluctant, “without benefit of a factual record,” to balance a “deep-seated respect for First Amendment religious protection against the virus of discrimination” whereas here we affirm the district court’s dismissal of Sister McDonough’s Title VII claim after a six-day bench trial — they nonetheless converge in warning against “[g]eneral propositions” and “absolutes” in a “difficult area” of the law, 894 F.2d at 1362, without a precise examination of the single record before us.

At the outset, I note that the insulating effect of the First Amendment’s religion clauses was never felt by defendant The Catholic University of America (CUA) until the district court’s post-trial, and apparently sua sponte, request for briefs “addressing the question whether the First Amendment precludes maintenance and adjudication of Sister McDonough’s claims.”1 856 F.Supp. at 2. From the beginning — now, over eight years ago — CUA, an indisputably sectarian institution (and no stranger to litigation2), viewed Sister McDonough’s quest for tenure as an academic matter. Indeed, after the Senate Committee on Appointments and Promotions (Senate CAP) rendered its second decision unanimously declining to recommend tenure, and while the EEOC was conducting its investigation, Cardinal Hickey, the Archbishop of Washington and ex officio the CUA Chancellor, called the dispute a “purely internal, non-eeclesiastieal, academic matter.”3 Joint Appendix (JA) 380. CUA endured the EEOC’s two-year probe, apparently shouldering any burden on its free exercise right without question. Of the eighteen witnesses who testified at trial, CUA called eleven of them; seven were clergy or persons religious. It appears that all testified free from, if not all, at least the forbidden entanglements. Even the trial judge, a constitutional law luminary, did not immediately see the light. While all of this may have little to do with whether the Court is empowered to hear Sister McDonough’s claim, it indicates, at least to me, that the First Amendment’s impact at this stage of the contest is far from clear.

At this stage we are reviewing only the November 1989 decision of the Senate CAP unanimously recommending against tenure.4 Of the seven members of the Senate CAP, one member came from each of six departments: Lucy Cohen from Anthropology, Roland Nardone from Biology, Virgil Nemoianu from English and Comparative Literature, Catherine Cline from History, Yun Whang from Mechanical Engineering and Elizabeth Timberlake from Social Services. Only one, John Lynch, was from the Canon Law Department.5 Its composition was thus overwhelmingly and indisputably secular; could its decision be anything but secular?

Both the CUA Faculty Handbook and the record in this case manifest what the seven had before them to evaluate. They had the Handbook, which provides that they are to review a tenure candidate, regardless of the department involved, according to nine criteria:

*472a. The purpose of the appointment ... in relation to the mission and needs of the Department, School, and University.
b. The candidate’s competence as a teacher, including where applicable ability as a director of dissertations and or/director of clinical or field training. ...
c. The candidate’s present and projected competence and productivity as a research scholar.
d. The candidate’s present and projected standing among scholars at comparable stages of their careers in the same field of specialization.
e. The indications that the candidate is one of the most qualified for the position. ...
f. The candidate’s commitment to the aims of the Department, School and University, as evidenced by interest in Departmental and University activities and by willingness to carry Committee responsibilities.
g. The candidate’s ability to work with other members of the academic community.
h. The candidate’s moral integrity, including respect for the ethical obligations of the teaching profession.
i.The candidate’s involvement in professional organizations and activities.

The Catholic University of America Faculty Handbook, JA 53-54. They had Sister Mc-Donough’s revised application. The application listed the courses she taught and her publications and noted that she had either directed or read thirty-eight dissertations; it also contained published reviews of her publications, letters of recommendation from both professionals and former students,6 a written evaluation of each of her published works by the Chairman of the School of Religious Studies7 (SRS) and recent students’ evaluations.8 Plaintiffs Trial Exhibit # 54 (Recommendation for Appointment with Continuous Tenure). They also had copies of her twelve publications. Finally, they had the evaluations of six canon law experts from outside CUA (some from outside the country). The Chairman of the Canon Law Department contacted four of the evaluators from a list proposed by Sister McDonough. These evaluators submitted public letters. CUA’s Academic Vice President later selected two outside evaluators who submitted confidential evaluations.

The six outside evaluators included: Reverend Richard Hill, S.J., J.C.D., Professor of Canon Law at The Jesuit School of Theology in Berkeley, California; Professor Michael O’Reilly, O.M.I., Assistant Professor of Canon Law at Saint Paul University in Otta*473wa, Canada; Reverend John M. Huels, O.S.M., Associate Professor of Canon Law at the Catholic Theological Union in Chicago, Illinois; Reverend David M. Hynous, O.P., Vice-Chancellor of the Archdiocese of Chicago, Illinois; Professor Dr. Heinz-Meihnhold Stamm, O.F.M., Dean of the Faculty of Canon Law at the Pontificium Athenaeum Anto-nianum in Rome.9 Their evaluations spoke in academic terms. Hill described Sister McDonough as a “productiv[e] ... scholar [who] ... reasons critically ... writes clearly” and is “setting the pace” compared to her peers. He therefore “did not hesitate to recommend her to The Catholic University of America for promotion to continuous tenure.” Supplemental Joint Appendix (SJA) 2. O’Reilly (one of the confidential evaluators) considered the “volume of her output” and “the high quality of her writings” in deciding to “strongly recommend that she be given tenure.” SJA 24. Huels commented that “[i]n the area of religious law, she is, in my opinion, the most capable scholar in the United States.” SJA 4. Hynous agreed: “As to a comparison of her work with those of her peers, she is far ahead of them.” SJA 15. Similarly, Stamm concluded that “from my point of view, there is no argument against the promotion of Prof. Dr. McDonough.” SJA 17 (translation from German original).10

In the face of these “high marks” in scholarship, output and professional relevance given to Sister McDonough’s publications, the Senate CAP nonetheless gave three reasons for its decision to reject her tenure application: (1) “scholarship of the candidate does not measure up to the standards expected in the field,” (2) “marginal performance in teaching and scholarly publications,” (3) and no assurance “‘beyond reasonable doubt,’” in light of the split votes of the Canon Law Department and the SRS CAP, that Sister McDonough “ ‘possesses ... the optimal qualifications for the position.’” Plaintiffs Trial Exhibit # 49 (Letter of Nemoianu dated 11/15/89, quoting Faculty Handbook). Not surprisingly, not a word' touching on “matters of church government, as well as those of faith and doctrine,” Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church, 344 U.S. 94, 116, 73 S.Ct. 143, 154, 97 L.Ed. 120 (1952), and nothing relating to ‘“voice of the church’” concerns. Minker, 894 F.2d at 1358. And to the extent the Senate CAP took into account the Canon Law Department’s and the SRS CAP’S lack of unanimity on Sister McDonough’s tenure qualifications, it appears that it did no more than count noses — there is no indication that it considered, or knew of, any differing religious opinions among the two faculty groups that affected their differing assessments of Sister McDonough.11 In fact, according to the record, the Canon Law Department faculty split over such nonreligious issues as Sister McDonough’s teaching style (“available to students” versus “ ‘high school marm’ approach”). 856 F.Supp. at 7. The Department’s disagreement resulted in a tie vote, three for and three against tenure. The SRS CAP, again by, a split vote (3-2), reached a different result, recommending Sister Mc-Donough for tenure. It summarized its decision: “[T]he majority felt that the candidate fulfilled tenure requirements as a teacher, researcher and writer, and in service to the department, school, and university, along with the greater church community.” JA 560. Its reasons could be, and undoubtedly have been, applied to a tenure candidate in any department at CUA.

That a sectarian institution can take secular, and therefore reviewable, action has been recognized by many courts, including ours. See, e.g., EEOC v. Mississippi College, 626 F.2d 477, 488-89 (5th Cir.1980) (allowing psy-*474ehologist denied full-time faculty position to bring Title VII claim against sectarian university); Geary v. Visitation of the Blessed Virgin Mary Parish Sch., 7 F.3d 324 (3d Cir.1993) (permitting lay teacher to bring ADEA claim against parochial school); DeMarco v. Holy Cross High School, 4 F.3d 166 (2d Cir.1993) (same); Ritter v. Mount St. Mary’s College, 814 F.2d 986, 988 n. 1 (4th Cir.1987) (noting education professor’s ADEA claim “did not present a significant risk of infringement upon the First Amendment rights of Mount Saint Mary’s College”), overruled on other grounds, Lytle v. Household Mfg. Inc., 494 U.S. 545, 110 S.Ct. 1331, 108 L.Ed.2d 504 (1990); Soriano v. Xavier Univ. Corp., 687 F.Supp. 1188, 1189 (S.D. Ohio 1988) (permitting suit by employee of sectarian university); Welter v. Seton Hall Univ., 128 N.J. 279, 608 A.2d 206, 212 (1992) (allowing nuns teaching computer science at sectarian university to bring claim alleging breach of employment contract); see generally Jones v. Wolf, 443 U.S. 595, 606, 99 S.Ct. 3020, 3026-27, 61 L.Ed.2d 775 (1979) (courts may resolve claims which involve “the manner in which the churches own property, hire employees, or purchase goods”); Minker, 894 F.2d at 1360 (allowing contract claim against religious institution because “the first amendment does not immunize the church from all temporal claims made against it”); Costello Publishing Co. v. Rotelle, 670 F.2d 1035 (D.C.Cir.1981) (permitting anti-trust claim against religious officials); Weissman v. Congregation Shaare Emeth, 38 F.3d 1038 (8th Cir.1994) (allowing ADEA claim against synagogue); cf. EEOC v. Southwestern Baptist Theological Seminary, 651 F.2d 277 (5th Cir.1981) (holding that Title VII does not apply to seminary faculty); Maguire v. Marquette Univ., 627 F.Supp. 1499 (E.D.Wis. 1986) (exempting from Title VII sectarian university decision not to hire theology professor), aff'd Maguire v. Marquette Univ., 814 F.2d 1213 (7th Cir.1987). The Senate CAP makes only secular decisions, whether it reviews the qualifications of a tenure candidate in the Physics Department or the Canon Law Department. The fact that religious authorities separately assess a Canon Law Department candidate because of that Department’s separate relationship with the Vatican does not change the nature of the Senate CAP’s decision. Nor are we asked or required to “probe the mind of the church.” Minker, 894 F.2d at 1360 (quoting Rayburn v. General Conf. of Seventh-day Adventists, 772 F.2d 1164, 1171 (4th Cir.1985)). Instead, we are reviewing the secular decision of secular agents of a sectarian institution.12 And, as the record makes clear, its decision derived from purely academic (i.e., nonreligious) considerations. Any burden on CUA’s free exercise right had not yet been borne; any excessive entanglement had not yet occurred.

I agree with both the majority and the district court that it was at the “pretext” stage of the trial that First Amendment questions came into play.13 Why was this? Sister McDonough compared her qualifications to two male tenured professors in the Canon Law Department who, the court found, compared well in some respects and not so well in others. Significantly, the court initially compared the two of them to Sister *475McDonough in teaching skills and quantity of publications, both academic matters. 856 F.Supp. at 9. In addition, the court noted that one of the two had a “unique dual-expertise in civil and canon law, having received a J.D. from Harvard Law School” and that he had won tenure when the Canon Law Department enrollment had been expected to increase, implying a lower threshold. Id. These differences were unquestionably academic (and therefore secular) and could apply in any tenure setting. In fact, the trial judge observed: “It is possible for a court to compare the quantity of published articles and, to some extent, the teaching evaluations.” Id. Had the evidence ended there, he would have done the comparison and made the decision.14 The First Amendment’s religion clauses would not yet have been implicated.

But the district court then heard evidence that understandably distracted it from assessing whether the Senate CAP’s stated reasons for not recommending tenure were pretextual.15 In order to make that assessment, the district court needed only to review what that body reviewed to determine if Sister McDonough’s scholarship did not “measure up,” if her performance in teaching and scholarly publications was “marginal” and if it could not say beyond a reasonable doubt that she possessed “optimal” qualifications. That CUA chose to defend its secular agent’s secular decision by relying on expositions of ecclesiastical esotérica that were, in the main, irrelevant because not relied on by that agent — and that Sister McDonough chose to show pretext by the same method— made the court’s job more difficult but not outside its jurisdiction.16 Had the court limited the inquiry to a review of the Senate CAP’s stated reasons as well as the substance of what that body reviewed, whether CUA would have carried the day by establishing “legitimate, nondiscriminatory reasons” or contrariwise Sister McDonough could have successfully shown discrimination, is, to state the obvious, an open question. By our affirmance, it remains an open question.17

I concur in the result, rather than dissent, for one reason. Although, as already noted, I believe the dispute at this stage does not implicate the First Amendment’s religion clauses, it will eventually do so.18 The district court recognized as much:

*476Action on plaintiff’s discrimination claim would require the Court to anticipate and, in effect, preempt the decision-making authority of the Vatican, which is ultimately responsible for selecting tenured professors in the Catholic University ... Department of Canon Law.

856 F.Supp. at 8. Because the ultimate authority’s decision regarding Sister McDon-ough’s tenure pursuit is beyond judicial review, whether any relief we might grant her at this stage will eventually and finally redress her injury is similarly within the exclusive control of the Holy See.19

. Before the court’s request, CUA had not asserted a First Amendment defense to Title VII liability although it had argued that the court could not constitutionally grant Sister McDonough her requested relief namely, tenure.

. See, e.g., Granfield v. Catholic Univ. of Am., 530 F.2d 1035 (D.C.Cir.1976).

. After Sister McDonough filed her EEO charge on January 18, 1990, she applied for a position with the Archdiocese of Washington and asked the Archbishop’s opinion about her EEOC claim. His opinion is related in Sister McDonough’s affidavit, the accuracy of which is not contested.

. The first Senate CAP rejected Sister McDon-ough’s tenure application in March 1989. At that time the Senate CAP consisted of faculty from the departments of anthropology, biology, canon law, law, histoiy and law, mechanical engineering and philosophy. The vote was three in favor of Sister McDonough's tenure application, one against and two abstentions. Sister McDonough appealed to CUA's Academic Vice President who remanded her application to the Senate CAP because of "substantive and procedural questions.” 856 F.Supp. at 8. By the time of the November vote, "one of Sister McDon-ough’s three supporters in April of 1989 was no longer serving on the Senate Committee, and two had changed their views." Id.

.Lynch was also a professor in the History Department. Of the seven members, Lynch was the only Roman Catholic priest.

. Sister McDonough included the letters of nine former students. Their letters contained comments about her teaching ability, including:

[Sister McDonough] taught General Norms and Latin. Both difficult courses to teach and for first year students to comprehend. The subject matter was unpopular, the frustration level was exceedingly high and the course load very demanding. I admire the fact that in the face of that [Sister McDonough] held out for quality, not popularity. She was not content that we learn the subject matter but that we learned how to study, how to approach questions, how to do research, how to prepare for comprehensives, how to write a thesis. I think that she is an excellent teacher in that she believes in "leading students out" beyond where they are.

Plaintiff's Trial Exhibit # 54 at 230.

. For example, the Chairman assessed one article as follows:

This is a careful analysis of an issue not generally discussed in canon law studies on religious. It includes a careful analysis of the law, and shows insight in developing a system of analysis not found elsewhere. The article is a serious canonical study.

Plaintiff’s Trial Exhibit # 54 at 17.

.In two summaries of student evaluations sent to Sister McDonough by the Chairman of the Canon Law Department, the Chairman stated:

The students valued your work in this course, as is evident from the numbered responses. The written comments are quite positive, and point to several elements of the course which proved very helpful: the materials, case studies, class presentations, and your own availability outside the classroom.
The evaluations are quite positive, expressing appreciation for the seminar format, the use of a syllabus, and the lively discussions. The readings were generally "overwhelming” or "voluminous,” but there were no real objections to them.

Plaintiff's Trial Exhibit # 54 at 650, 689.

. The sixth letter from Bruno Primetshofer, a Catholic Theology faculty member at The University of Vienna, was written in German. There is no translation included in the record.

. Testifying about the "minuses of Dr. McDon-ough’s file,” the Senate CAP Chairman stated that "all six letters expressed a number of reservations and hedgings or qualifications about Dr. McDonough’s tenure.” JA 388. His characterization of the evaluations does not appear to square with their contents.

.The split votes by themselves indicate nothing unless CUA were to argue that the Senate CAP never recommended tenure if the candidate’s department (and/or school) was less than unanimous in its recommendation. There is nothing in the record or briefs suggesting such an argument.

. It is also clear that the Senate CAP’s decision is the only one we need review; if it had voted to recommend tenure. Sister McDonough's application would have proceeded to the next level notwithstanding the Canon Law Department’s negative vote.

. As a Title VII plaintiff, Sister McDonough was required to prove by a preponderance of the evidence that CUA unlawfully discriminated against her. Saint Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-12, 113 S.Ct 2742, 2749, 125 L.Ed.2d 407 (1993). At trial, McDonough offered her prima facie case of unlawful disparate treatment by presenting evidence that she was a member of a protected class, qualified for tenure, applied for and was denied tenure and the tenured position remained open. See Trial Tr. vol. II at 174; see Neuren v. Adduci, Mastriani, Meeks & Schill, 43 F.3d 1507 (D.C.Cir.1995); Bennun v. Rutgers State University, 941 F.2d 154, 170 (3d Cir.1991). In response, CUA presented its evidence of bona fide nondiscriminatory reasons for its action and Sister McDonough challenged the reasons as pretextual. See Hicks, 509 U.S. at 504—08, 113 S.Ct. at 2746-47 (describing "burden of production and an order for the presentation of proof in Title VII discriminatory-treatment cases” set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). Sister McDonough retained the "ultimate burden of persuasion” that CUA unlawfully denied her tenure. See Hicks, 509 U.S. at 510-12, 113 S.Ct. at 2749.

. In ruling on the admissibility of the plaintiff's exhibits, the trial judge stated: “I don’t think I can do anything beyond dealing sort of as if I were reviewing the decision of an administrative agency. What was before the various decision-making bodies in connection with her application.” Trial Tr. vol. II at 147. Both sides called as witnesses various members of one of the two Senate CAPs — McDonough called Maxwell Bloomfield (a legal history and law professor who served on the first Senate CAP) while CUA called Cohen, Nemoianu, Timberlake and Wip-pel.

. Both Sister McDonough and CUA called members of the Canon Law Department. Six current or former members, all Roman Catholic priests, and Reverend Hill, testified about the quality of her publications. It was this testimony that the district court eventually concluded led it into the First Amendment thicket. 856 F.Supp. at 9 ("The issue ... necessarily involves the quality, and hence the substance, of her work. That substance is materially religious.... There are [ ] competing expert opinions as to the quality and, necessarily, the religious substance of Sister McDonough’s writings in this record.”).

. The trial judge may have permitted the testimony because of his mistaken view that the Canon Law Department was Sister McDonough’s employer. His memorandum opinion includes several references to that effect. 856 F.Supp. at 5, 6, 13. For this reason he concentrated on the Canon Law Department, not CUA, as the relevant "religious institution.” Id. at 9, 10, 13. In fact, CUA was Sister McDonough’s employer. Notice of Appointment, JA 38-43 (employment contracts signed by CUA Provost and Sister Mc-Donough).

. Although it has not influenced my decision to concur in the result, I note that Sister McDon-ough, like the plaintiff in Minker, also brought a breach of contract claim which was dismissed before trial by the trial judge’s predecessor. The trial judge declined to reconsider the dismissal, concluding that it constituted the law of the case, but reminded the plaintiff of her right to appeal the dismissal. 4/25/93 Pre-Trial Conf.Tr. at 62 ("If he's wrong, you have to get it fixed on appeal.”) The dismissal was not appealed. Had it been, Sister McDonough, again like the plaintiff in Minker, 894 F.2d at 1360, might well have enjoyed her day in court on the breach of contract claim.

. I agree with the majority that Sister McDon-ough would fall within the "ministerial exception,” as we earlier described it in Minker, once *476her tenure application reached the ecclesiastical authorities, that is, at the "nihil obstat" stage.

. Indeed, in deciding to bifurcate the trial, the district court expressed doubt about the court’s ability to grant the requested relief. JA 170. Originally Sister McDonough argued that the district court could order that she be granted tenure. See Complaint in Intervention and Jury Demand, JA 35; Trial Tr. vol. I at 10. At the conclusion of the liability stage and in the very last document filed in the district court, Sister McDonough sought to limit her requested remedy:

[S]ince the canon law candidates for tenure must receive the canonical mission or nihil obstat as the final step toward tenure, if this Court finds that the University violated Title VII, it can fashion an equitable remedy. For example, the Court can make a finding of discrimination, award damages and order reinstatement and a positive endorsement for tenure by the non-ecclesiastical bodies, so that Sister Elizabeth’s tenure application is placed before the Chancellor and episcopal members of the Board of Trustees for the "nihil obstat" review.

Plaintiffs’ Reply to Defendant’s Post Trial Brief at 14.

Title VII expressly authorizes "any ... equitable relief as the court deems appropriate.’’ 42 U.S.C. § 2000e-5(g). The district court did not reach the question of remedy, however, because it dismissed the case at the liability stage. Accordingly, it did not reach the issue whether equitable relief under Title VII could include the remedy Sister McDonough suggested as an alternative. Cf. Kreis v. Secretary of the Air Force, 866 F.2d 1508, 1511 (D.C.Cir.1989) (holding that although plaintiff's military promotion request was "nonjusticiable" and thus properly dismissed by district court his "more modest request” for "corrective action with respect to appellant's record" was justiciable under Administrative Procedure Act).