Equal Employment Opportunity Commission v. St. Francis Xavier School and Church 99-5428 CASE BEING CONSIDERED FOR TREATMENT PURSUANT TO RULE 34(j) OF THE GENERAL RULES. IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 99-5428 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. ST. FRANCIS XAVIER SCHOOL and ST. FRANCIS XAVIER CHURCH, Defendants-Appellees. Appeal from the United States District Court for the District of Columbia BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel JULIE L. GANTZ Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of the General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4718 CERTIFICATE AS TO PARTIES RULINGS, AND RELATED CASES The undersigned counsel of record for Appellant, the Equal Employment Opportunity Commission, certifies the following in accordance with Circuit Rule 28(a): A. Parties, Amici and Intervenors The parties in the district court action, C.A. No. 94-0314, and in the appeal before this Court include the Equal Employment Opportunity Commission, plaintiff-appellant; St. Francis Xavier Church, defendant-appellee; and St. Francis Xavier Parochial School, defendant-appellee. There are no amici or intervenors. B. Rulings Under Review This appeal seeks review of the Opinion and Order of Judge Stanley S. Harris, dated October 28, 1999, and cited at 77 F. Supp.2d 71 (D.D.C. 1999). The Opinion and Order can be found at pages 14 through 28 of the Joint Appendix ("JA"). C. Related Cases The district court first dismissed this case on June 4, 1996. The Commission appealed on July 30, 1996, No. 96-5329, and this Court reversed in a decision entered July 18, 1997, and published at 117 F.3d 621. The Commission is aware of no other related cases. _____________________________ Julie L. Gantz AttorneyTABLE OF CONTENTS CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES i TABLE OF CONTENTS ii TABLE OF AUTHORITIES iii GLOSSARY v STATEMENT OF JURISDICTION 1 STATEMENT OF THE ISSUE 2 STATEMENT OF THE CASE 2 1. Course of Proceedings 2 2. Statement of Facts 4 3. The District Court Decision 9 STATEMENT OF STANDARD OF REVIEW 11 SUMMARY OF ARGUMENT 11 ARGUMENT THE DEFENDANTS MAY BE SUED IN FEDERAL COURT TO ENFORCE THE ADA BECAUSE THEY ARE AN UNINCORPORATED ASSOCIATION UNDER FEDERAL RULE OF CIVIL PROCEDURE 17(b) 12 CONCLUSION 22 CERTIFICATE OF LENGTH CERTIFICATE OF SERVICE ADDENDUM: Relevant Statutory Provisions and book excerptTABLE OF AUTHORITIES CASES Associated Students of Univ. Cal. Riverside v. Kleindienst, 50 F.R.D. 65 (C.D. Cal. 1973) 14, 19-20 *Committee for Idaho's High Desert, Inc. v. Yost, 92 F.3d 814 (9th Cir. 1999) 14 EEOC v. St. Francis Xavier Parochial Sch. et. al., 928 F. Supp. 29 (D.D.C. 1996) 3 EEOC v. St. Francis Xavier Parochial Sch. et. al., 117 F.3d 621 (D.C. Cir. 1997) 3 EEOC v. St. Francis Xavier Parochial Sch. et. al., 14 F. Supp.2d 104, 106 (D.D.C. 1998) 4 EEOC v. St. Francis Xavier Parochial Sch. et. al., 77 F. Supp.2d 71 (D.D.C. 1999) 4 Hunter-Boykin v. George Washington University, 132 F.3d 77, 79 (D.C. Cir. 1998) 10 Local 4076, United Steelworkers v. United Steelworkers, 327 F. Supp. 1400, 1403 (W.D. Pa. 1971) 14 Planned Parenthood v. Holy Angels Catholic Church, 765 F. Supp. 617 (N.D. Cal. 1991) 19 Surowitz v. Hilton Hotels Corp., 383 U.S. 363 (1966) 20 Torres v. Oakland Scavenger Co., 487 U.S. 312 (1988) 20 STATUTES 28 U.S.C. § 1291 1 28 U.S.C. § 1331 1 42 U.S.C. § 1981a 1 Authorities upon which we chiefly rely are marked with asterisks. Title VII of the Civil Rights Act of 1964 42 U.S.C. § 2000e(a) 12 The Americans with Disabilities Act 42 U.S.C. §§ 12101 et seq. 2 42 U.S.C. § 12111(5) 13 42 U.S.C. § 12111(7) 13 42 U.S.C. § 12111(9) 12 42 U.S.C. § 12112(a) 12 42 U.S.C. § 12112(b)(5)(A) 12 42 U.S.C. § 12117(a) 1 REGULATIONS AND RULES *Federal Rule of Civil Procedure 1 20 *Federal Rule of Civil Procedure 8(f) 20 *Federal Rule of Civil Procedure 17(b) 10, 11, 13-14 29 C.F.R. § 1630(o) 12 MISCELLANEOUS Henry Campbell Black, Black's Law Dictionary 341 (6th ed. 1990) 6 *Rev. Edward L. Buelt & Charles Goldberg, Canon Law & Civil Law Interface: Diocesan Corporations, 36 Cath. Law. 69, 75 (1995) 16 *Adam J. Maida & Nicholas Cafardi, Church Property, Church Finances, and Church-Related Corporations(1984) 14, 16 James Wm. Moore, 1 Moore's Federal Practice § 1.21[1][a] (3d ed. 1999) 20 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1029 21 GLOSSARY 1. "ADA" refers to the Americans with Disabilities Act. 2. "Commission" refers to the Equal Employment Opportunity Commission. 3. "Dep." means Deposition. 4. "EEOC" refers to the Equal Employment Opportunity Commission. 5. "Federal Rules" refers to the Federal Rules of Civil Procedure. 6. "JA" refers to the Joint Appendix filed with this brief. 7. "Op." refers to the district court opinion from which this appeal is taken. 8. "R." refers to the district court's docket sheet. IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 96-5428 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. ST. FRANCIS XAVIER SCHOOL and ST. FRANCIS XAVIER CHURCH, Defendants-Appellees. Appeal from the United States District Court for the District of Columbia BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT STATEMENT OF JURISDICTION The district court had jurisdiction under 28 U.S.C. § 1331, 42 U.S.C. § 12117(a), and 42 U.S.C. § 1981a. Final judgment was entered on October 28, 1999. JA 28. Plaintiff Equal Employment Opportunity Commission filed a timely notice of appeal on December 23, 1999. R. 7.<1> This Court has jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUE 1. Whether defendants are an "unincorporated association" under Fed. R. Civ. P. 17(b) which may be sued in federal court to enforce Title I of the Americans with Disabilities Act. STATEMENT OF THE CASE 1. Course of Proceedings This is an appeal from a final judgment of the United States District Court for the District of Columbia dismissing this action to enforce Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq. The Commission initiated this action on February 17, 1994, by filing a complaint alleging that St. Francis Xavier Church ("Church") and St. Francis Xavier School ("School") violated the ADA by refusing to consider Roberta Stein for a position as a part-time music teacher because she uses a wheelchair. See JA 31-32 (Complaint at ¶¶ 10-11). In defendants' Answer and Pre-Trial Statement, they asserted that they were not covered by the ADA because they did not have 25 or more employees and were not engaged in an industry affecting commerce at the time of the alleged violation. JA 37 & 41. At a pre-trial conference on February 28, 1996, the district court sua sponte ordered briefing on the question of whether defendants had 25 or more employees. The court treated defendants' briefs as a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) and dismissed the case on jurisdictional grounds. R. 3. The court rejected the Commission's argument that employees from the School, Church, and a day care center operated by the Church should be aggregated for purposes of deciding coverage, and concluded that the ADA's 25-employee threshold was not met. EEOC v. St. Francis Xavier Parochial Sch. et. al., 928 F. Supp. 29, 37 (D.D.C. 1996). This Court reversed. The Court held that whether defendants have enough employees to be covered under the ADA does not affect the district court's jurisdiction. See EEOC v. St. Francis Xavier Parochial Sch. et. al., 117 F.3d 621, 623-24 (D.C. Cir. 1997). The Court held that the Commission "adequately stated a claim with respect to the number of employees required for ADA coverage," by providing evidence which would support a finding that the Church, School and day care center are a single employer for ADA purposes. Id. at 625. The Court remarked that "[f]rom the pleadings we cannot even determine whether the School, the Church and the Day Care Center are distinct legal entities capable of being sued in their own names . . . or whether they are merely parts of one legal entity -- the Church," id., and called for further development of the record. On remand, the district court allowed limited discovery and dispositive motions on the issue of whether defendants constituted an employer under Title I of the ADA. Defendants filed a motion for summary judgment but did not raise the issue of whether the Church and School had the capacity to be sued. The district court granted defendants' motion on August 5, 1998, on the ground that the Commission failed to establish that defendants met the 25-employee threshold, even when the employees of the Church, School and day care center were aggregated. See EEOC v. St. Francis Xavier Parochial Sch. et. al., 14 F. Supp.2d 104, 106 (D.D.C. 1998). On September 14, 1998, the court granted the Commission's motion for reconsideration and held that the evidence on the number of employees was sufficient to survive a motion for summary judgment. JA 9-10. However, the court sua sponte directed the parties to brief the question of whether the defendants have the capacity to be sued. JA 12. On October 28, 1999, the court held that defendants were unincorporated entities that could not be sued and granted defendants' motion for summary judgment. JA 27 (decision reported at 77 F. Supp.2d 71 (D.D.C. 1999)). 2. Statement of Facts In August 1992, Roberta Stein, who has multiple sclerosis and uses a wheelchair, called St. Francis Xavier Parochial School to apply for a part-time music teacher position after seeing the School's advertisement in The Washington Post. JA 51 (Plaintiff's Pretrial Statement at 2). Stein asserts that when she asked whether the building was wheelchair accessible, the school secretary put her on hold for several minutes, then returned to the phone and canceled the interview she had just scheduled with Stein because the School had too many stairs. Id.; see also JA 136 (8/28/92 EEOC Charge of Discrimination). Although Stein asked to be interviewed outside the School on the front steps as a reasonable accommodation, her request was refused. JA 52 (Plaintiff's Pretrial Statement at 3). The following month, defendants filled the Music Teacher position through a music service. Id.; JA 146-47 (Contract with Christian Academy of Fine Arts). The candidate selected did not use a wheelchair and lacked the minimum requirements of the position, a B.A. in Music Education and student teaching experience. JA 52 (Plaintiff's Pretrial Statement at 3). Stein met both qualifications. JA 52-53. Defendants allege that the position was already filled when Stein called. JA 40 (Defendants' Pretrial Statement at 2). The School is run by St. Francis Xavier Church which is affiliated with the Roman Catholic Archdiocese of Washington.<2> JA 66 (1998 Bava Dep. at 8). The Archdiocese is incorporated in the District of Columbia as a corporation sole.<3> JA 129 (62 Stat. ch. 355 (1948)). Neither the Church nor the School is separately incorporated. JA 67 (1998 Bava Dep. at 10). However, under Canon Law, the Church "enjoys an independent existence" from the Archdiocese. JA 138 (School's statement of position to EEOC at 1). The School is operated and controlled by the Church. JA 37 (Answer at 3 ¶ 4). The pastor is considered the head of the Church, the School, and the day care center. JA 82 (Defendants' Answers to Plaintiff's Interrogatories at 4). Students' families who donate a certain amount at weekly Church services qualify for reduced tuition rates at the School. JA 78 (1998 Bava Dep. at 54-55); JA 122-24 (Salah Dep. at 25-26). The Church and School share the same mission and philosophy, which are embodied in a formal mission statement.<4> JA 150. The pastor has final authority on decisions affecting the School. JA 73 (1998 Bava Dep. at 37); JA 109-10 (Salah Dep. at 11-12). The pastor develops, approves, and signs the School's budget. JA 93 (Archdiocese of Washington Annual School Report and Budget report); JA 152 (1994 Bava Dep. at 39); JA 71 (1998 Bava Dep. at 27); JA 113 (Salah Dep. at 15). The Church's pastor and the School's principal and assistant principal together determine new teacher hires. JA 100-01 (1994 Bava Dep. at 8-9). The pastor has the ultimate responsibility for hiring and firing employees of the Church and School. JA 70, 73 (1998 Bava Dep. at 25, 37); JA 109-11 (Salah Dep. at 11-13). The School uses an employment application that states at the top of the page: "The use of this form by any Catholic School within the Archdiocese of Washington in no way indicates that the applicant will be employed by the Archdiocese. The applicant understands that the Pastors of the individual schools or administrators of non-parish schools employ the teachers." JA 145. The School enters into contracts in its own name. JA 146-47 (Employment Contract between School and Christian Academy of Fine Arts). The pastor signs employment contracts and payroll checks for School and Church employees. JA 70, 74 (1998 Bava Dep. at 25, 38); JA 110, 112-13 (Salah Dep. at 12, 14-15). The pastor made arrangements for a training session for the administrative staff of the School and day care center regarding defendants' responsibilities in complying with the employment provisions of the ADA. JA 102 (1994 Bava Dep. at 28). The music teacher was expected to perform some work for the Church. JA 43 (Defendants' Pretrial Statement at 5). The Church controls substantial assets. The School's budget is contained in a single document labeled "St. Francis Xavier," which lists income and expenses for both the Church and the School. JA 88-94. The Church raises funds through offerings and fees generated from the day care center. JA 77, 78 (1998 Bava Dep. at 52-53, 54-55); JA 123, 125 (Salah Dep. at 25, 27). The School receives tuition checks in its own name. JA 77(1998 Bava Dep. at 51). These funds are deposited in the bank accounts of the Church and School for which the pastor is the signatory. JA 77 (1998 Bava Dep. at 50, 52); JA 118, 121-23 (Salah Dep. at 20, 23-25). The Church and School report the amount of their assets and submit budgets to the Archdiocese on a yearly basis. JA 69 (1998 Bava Dep. at 18-19); JA 115 (Salah Dep. at 17). The Church does not receive regular operating funds from the Archdiocese. JA 69 (1998 Bava Dep. at 19-21). The Archdiocese does not control the day-to-day operations of the Church and School. JA 69 (1998 Bava Dep. at 21); JA 114 (Salah Dep. at 16). The Archdiocese generally does not direct the Church or School on how its funds are to be spent.<5> JA 70 (1998 Bava Dep. at 24 ); JA 115 (Salah Dep. at 17). The Church and School enter into contracts in their own name for goods and services, such as for the fees of an accountant. Such expenditures are paid for from their own budgets. JA 76 (1998 Bava Dep. at 48); JA 118 (Salah Dep. at 20). Stein filed a charge of discrimination against the School on August 28, 1992. JA 136. She amended her charge on September 18, 1992, to include the Archdiocese of Washington as an additional respondent. JA 137. Stein amended her charge again on November 17, 1992, to add St. Francis Xavier Church and omit the Archdiocese as a respondent. JA 148. After finding cause on the second amended charge, the Commission filed suit on February 17, 1994, alleging that the School and Church violated the ADA by failing to provide an accessible interview site and refusing to hire Stein because of her disability. JA 29-34 (Complaint). 3. The District Court Decision One year after receiving the parties' briefs on defendants' legal status, the court concluded that the Church and School were divisions of the Archdiocese of Washington, a corporation sole, and lacked the capacity to be sued in their own names. The court rejected the Commission's argument that the Church and the School collectively are an "unincorporated association" which may be sued in federal court, regardless of its capacity to be sued under state law, when the suit is "for the purpose of enforcing . . . a substantive right existing under the . . . laws of the United States" under Fed. R. Civ. P. 17(b)(1). JA 18 (Opinion ("Op.") at 5). According to the court, the School and Church cannot be an unincorporated association under Rule 17(b) because they are divisions of the Archdiocese, a corporation sole. JA 25 (Op. at 12). The court noted that federal courts have interpreted Rule 17(b) to require that an unincorporated association operate without a charter. Analogizing the Church and School to unincorporated divisions of a business corporation, the court concluded that they cannot meet this requirement since they operate under the Archdiocese's corporate charter. JA 22 (Op. at 9 n. 8). The court remarked that treating a division of a corporation as an unincorporated association would not advance Rule 17(b)'s purpose of ensuring enforcement of federal law because plaintiffs asserting monetary claims would be unable to satisfy a judgment against a corporate division lacking independent assets. JA 23 (Op. at 10). The court noted that the Commission also seeks injunctive relief in this case. The court stated, however, that, even if the Commission sought only injunctive relief, that would not permit the suit to continue because defendants are not unincorporated associations within the meaning of Rule 17(b). JA 23 (Op. at 10 n. 9). STATEMENT OF STANDARD OF REVIEW A district court's grant of summary judgment is reviewed de novo. See, e.g., Hunter-Boykin v. George Washington University, 132 F.3d 77, 79 (D.C. Cir. 1998). SUMMARY OF ARGUMENT Defendants have the capacity to be sued in federal court for a violation of the ADA by virtue of Rule 17(b) of the Federal Rules of Civil Procedure, which permits suits to enforce federal claims against, inter alia, unincorporated associations. The courts have construed the term "unincorporated association" to mean a voluntary group of people without a charter organized for a common purpose. The Church and School collectively fit this definition, as they are comprised of individuals who have come together to further religious worship and education and neither entity is incorporated. Thus both entities lack a corporate charter. In holding that defendants could not be sued, the district court adopted an unduly narrow reading of Rule 17(b) that is not dictated by the terms of the rule and that is inconsistent with the purpose of Rule 17(b) and the Federal Rules generally to permit the resolution of federal claims on the merits wherever possible. The district court erred in assuming that defendants are divisions of a corporation and cannot qualify as unincorporated associations. The Church operates independently from the Archdiocese in employment and financial matters to such an extent that it cannot be said to be operating under the Archdiocese's charter as a corporate division. The district court's analogy of a religious corporation sole and an affiliated church to a business corporation and its operating division ignores the undisputed evidence that defendants are, in most respects, independent of the Archdiocese. ARGUMENT THE DEFENDANTS MAY BE SUED IN FEDERAL COURT TO ENFORCE THE ADA BECAUSE THEY ARE AN UNINCORPORATED ASSOCIATION UNDER FEDERAL RULE OF CIVIL PROCEDURE 17(b) Title I of the ADA prohibits "employers" and other covered entities from discriminating in employment decisions on the basis of disability. 42 U.S.C. § 12112(a). The ADA makes it unlawful to fail to provide a reasonable accommodation for a disabled job applicant. 42 U.S.C. § 12112(b)(5)(A). A "reasonable accommodation" includes "making existing facilities used by employees readily accessible to and usable by individuals with disabilities." 42 U.S.C. § 12111(9); 29 C.F.R. § 1630.2(o)(1) ("reasonable accommodation" means "modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires"). Congress defined "employer," for the purposes of the ADA, as "a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year . . . except that, for two years following the effective date of [Title I, that is, until July 26, 1994], an employer means a person . . . who has 25 or more employees . . . ." 42 U.S.C. § 12111(5).<6> It is now established that the Church and School considered together constitute a covered entity within the meaning of the ADA. The district court has determined that together they employed more than 25 workers during the relevant period. The Commission alleges in this suit that defendants violated the ADA when they refused to interview Roberta Stein for a music teacher position because she uses a wheelchair. There is no dispute that the employment practices at issue were those of the Church and were not imposed by the Archdiocese or any other entity. Nonetheless, the district court dismissed this ADA enforcement action on the ground that the Church is not a suable entity. In doing so, the court narrowly construed Fed. R. Civ. P. 17(b)(1) in a way not dictated by the terms of the rule and inconsistent with the purpose of Rule 17(b) and the Federal Rules generally to permit the resolution of federal claims on the merits when possible. Fed. R. Civ. P. 17(b) provides that a party's capacity to sue or be sued is ordinarily determined by reference to state law, "except (1) that a partnership or other unincorporated association, which has no such capacity by the law of such state, may sue or be sued in its common name for the purpose of enforcing for or against it a substantive right existing under the Constitution or laws of the United States . . . ." Fed. R. Civ. P. 17(b). Federal courts have defined an unincorporated association as "a voluntary group of persons, without a charter, formed by mutual consent for the purpose of promoting a common objective." Committee for Idaho's High Desert, Inc. v. Yost, 92 F.3d 814, 820 (9th Cir. 1999); see also Local 4076, United Steelworkers v. United Steelworkers, 327 F. Supp. 1400, 1403 (W.D. Pa. 1971); Associated Students of the Univ. of Cal. at Riverside v. Kleindienst, 60 F.R.D. 65, 67 (C.D. Cal. 973). Thus an unincorporated association should (1) be a group of persons pursuing a common purpose, and (2) lack a charter. The Church and the School collectively<7> meet both these criteria. First, the Church is comprised of a group of persons who have come together to promote the common objective of furthering religious worship and education. A church is the epitome of a voluntary group pursuing a common purpose. See Adam J. Maida & Nicholas Cafardi, Church Property, Church Finances, and Church-Related Corporations 105 (1984)(noting that the Supreme Court in Gonzalez v. Roman Catholic Archbishop of Manila, 280 U.S. 1 (1929), characterized the Catholic Church as a voluntary association of people and the canon law as the association's by-laws). The School and Church share a written philosophy and mission statement that sets out their common purpose, which includes "the formation and shaping of a positive, Christian value-system and character in the lives of young people . . . ." See JA 150. Second, it is undisputed that the Church is unincorporated. Therefore, the Church lacks its own corporate charter. The district court's conclusion that the defendants are not an unincorporated association is based entirely on the assumption that they are merely "divisions" of the incorporated Archdiocese. However, the evidence does not support this assumption. Although it is undisputed that the Church is affiliated with the Archdiocese, the evidence indicates that, as defendants themselves have asserted, the Church "enjoys an independent existence" from the Archdiocese. JA 138 (School's statement of position to EEOC at 1). Accordingly, contrary to the district court's view, they are not analogous to divisions of a traditional business corporation and the district court erred in assuming that the Church operates under the Archdiocese's corporate charter. First, both the Catholic Church and the defendants themselves view a church as an entity distinct from the diocese with which it is associated. Under Canon Law, a church is a "public juridic person" with an existence independent from the diocese within which it lies. See Maida & Cafardi, Church Property at 23; see also JA 138. In the eyes of the Catholic Church, as a distinct juridic person, the Church has the capacity to own property, enter into contracts, and the ability to sue or be sued. See Rev. Edward L. Buelt & Charles Goldberg, Canon Law & Civil Law Interface: Diocesan Corporations, 36 Cath. Law. 69, 75 (1995) ("[C]anonically, it seems that the diocese's liability for the activities of the public juridic person [the individual church] may be eliminated altogether . . . ."). Furthermore, the evidence concerning the relationship between the Church and the Archdiocese demonstrates that the Church does not operate as a mere division of the Archdiocese. The Church has significant autonomy in employment and financial matters. The record demonstrates that the Church, and not the Archdiocese, controls the employment policies and practices regarding employees of the Church, School, and day care center. The application for employment at the School specifically refutes any notion that School employees are employees of the Archdiocese, and emphasizes that "the Pastors of individual schools or administrators of non-parish schools employ the teachers" and not the Archdiocese. See JA 145. The Church's pastor has final authority on decisions affecting the School and Church. For example, the pastor has ultimate responsibility for hiring and firing employees, and signs employment contracts and payroll checks for employees of the Church, School, and day care center. The School contracts with employees in its own name. The pastor arranged for a training session for the administrative staff of the School and day care center regarding defendants' responsibilities in complying with Title I of the ADA. See supra at pp. 6-7. The Church and School are largely financially independent from the Archdiocese. The pastor develops, approves, and signs the School's budget. The Church and School enter into contracts in their own name for goods and services and pay for such expenditures out of their own budgets. See supra at pp. 6, 8-9. There is undisputed evidence that the Church controls substantial assets. The Church raises funds through Church offerings, school tuition, and fees generated from the day care center. These funds are deposited in the bank accounts of the Church and School for which the pastor is the signatory. Each year, the Church submits to the Archdiocese on behalf of the Church and School reports detailing the amount of the Church's and the School's assets and a budget for each. The Archdiocese does not provide the Church with regular operating funds, direct the Church or School on how their funds are to be spent, nor does it control the day-to-day operations of the Church and School. That the Church and School generate their own income, have their own bank accounts and do not receive regular operating funds from the Archdiocese demonstrates that the defendants are not divisions of the Archdiocese and do not operate pursuant to the Archdiocese's corporate charter. See supra at pp. 7-8. The district court noted that the reason behind the rule that corporate divisions lack legal capacity to be sued in their own name is that judgments could not be satisfied against them because such entities do not hold title to their own assets. This reasoning does not support dismissal of this suit for two reasons. First, as noted above, there is ample evidence that the defendants do in fact control substantial financial assets from which they could satisfy a monetary judgment in this case. Secondly, the Commission seeks injunctive as well as monetary relief in this case. Even if the defendants did not have monetary assets, the Commission could obtain an injunction directing the School to remove barriers to applicants with disabilities and otherwise comply with the ADA if it prevails in this suit. This presents a compelling reason to allow the case to proceed against these defendants. See, e.g., Planned Parenthood v. Holy Angels Catholic Church, 765 F. Supp. 617, 619 (N.D. Cal. 1991) (injunction against a Catholic church did not run against the Archdiocese when Archdiocese had submitted a sworn declaration that it did not condone, encourage or support the activity for which the church was being sued; court pointed out that while the Archdiocese was not named as a defendant, there was no reason it should have been). The court's analogy comparing a religious corporation sole and affiliated churches to a business corporation and its operating divisions is inaccurate, unfounded, and discounts defendants' significant autonomy and control over their own employment decisions and financial assets. That the Church is affiliated with the incorporated Archdiocese does not automatically make it an operating division of a corporation. For example, in Kleindienst, 50 F.R.D. at 67, the court held that an official student government organization at the University of California at Riverside could bring a federal action asserting constitutional claims because it "clearly constitutes an 'unincorporated association' within the meaning of Rule 17(b)." Although the student group was affiliated with the incorporated University of California, the court nonetheless rejected the Regents' argument that the student group was a subunit of the University for purposes of Rule 17(b)(1) and denied the Regents' motion to intervene. Id. at 68. The district court's conclusion that defendants cannot be unincorporated associations because they are divisions of the Archdiocese elevates form over substance and ignores the manner in which these entities operate. The court's unnecessarily narrow interpretation of Rule 17(b) is inconsistent with the spirit of the Federal Rules of Civil Procedure which requires that courts construe the Rules so as to permit a decision on the merits where possible. "If rules of procedure work as they should in an honest and fair judicial system, they not only permit, but should as nearly as possible guarantee that bona fide complaints be carried to an adjudication on the merits." Surowitz v. Hilton Hotels Corp., 383 U.S. 363, 373 (1966). The Federal Rules "should be liberally construed and . . . 'mere technicalities' should not stand in the way of consideration of a case on its merits." Torres v. Oakland Scavenger Co., 487 U.S. 312, 316 (1988). See Fed. R. Civ. P. 1 (The Federal Rules "shall be construed and administered to secure the just, speedy, and inexpensive determination of every action"); Fed. R. Civ. P. 8(f)("[a]ll pleadings shall be so construed as to do substantial justice"). See also James Wm. Moore, 1 Moore's Federal Practice § 1.21[1][a] (3d ed. 1999)(the Federal Rules "should be construed liberally to ensure that the mandate of Rule 1 is followed in any particular case"); Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1029 ("Rule 1 requires the judge to construe the rules liberally to further the cause of justice."). Rule 17(b) must be interpreted in a way consistent with this concept. This case has been pending nearly eight years without any consideration of the Commission's claims. The district court has dismissed this action three times based on meritless procedural technicalities. It is time that the case proceed to a determination on the merits of the serious claims of discrimination alleged in the complaint. CONCLUSION For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings. Respectfully submitted, C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel JULIE L. GANTZ Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of the General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4718 CERTIFICATE OF LENGTH I certify that this brief has been prepared in monospaced (nonproportionally spaced) typeface using Corel Word Perfect 8, Courier New 12-point font, and does not contain more than 12,500 words. _________________________ Julie L. Gantz CERTIFICATE OF SERVICE I, Julie L. Gantz, hereby certify that on May 5, 2000, two copies of the foregoing brief of the Equal Employment Opportunity Commission as Appellant, were sent by first class mail, postage prepaid to: ANTHONY P. INTERDONATO Attorney at Law 12604 Glen Road Potomac, MD 20854 Julie L. Gantz ADDENDUMThe Americans with Disabilities Act 42 U.S.C. § 12101 1 42 U.S.C. § 12111(5) 2 42 U.S.C. § 12111(7) 2 42 U.S.C. § 12111(9) 2 42 U.S.C. § 12112(a) 3 42 U.S.C. § 12112(b)(5)(A) 3 42 U.S.C. § 12117(a) 3 Title VII of the Civil Rights Act of 1964 42 U.S.C. § 2000e(a) 4 Adam J. Maida & Nicholas Cafardi, Church Property, Church Finances, and Church-Related Corporations 5 1 Citations to the record proper are abbreviated "R." and refer to the district court docket sheet number. 2 Reverend Michael Salah testified in 1998 that in 1997, changes were made in 1997 in how the School was run, and that the day care center was closed in June 1996. JA 109, 111 (Salah Dep. at 11, 13). The text describes the administration of the School and Church during the time period at issue in this case. 3 A corporation sole is defined as a corporation "consisting of one person only, and his successors in some particular station, who are incorporated by law in order to give them some legal capacities and advantages, particularly that perpetuity, which in their natural persons they could not have had." Henry Campbell Black, Black's Law Dictionary 341 (6th ed. 1990). 4 This philosophy is stated as follows: "[T]he administrative staff of St. Francis Xavier School and Church dedicate themselves for the formation and shaping of a positive, Christian value-system and character in the lives of young people . . . . [T]he administration and staff of both St. Francis Xavier School and Church aim diligently to guide these students - Catholic non-Catholic alike - on an unending discovery of God, truth, knowledge, goodness and beauty." JA 150 (Student Handbook at 1). 5 The Archdiocese must approve expenditures over $10,000. JA 69 (1998 Bava Dep. at 21). 6 The word "person" is defined by reference to § 701(a) of Title VII, 42 U.S.C. § 2000e(a), to mean "one or more individuals, governments, governmental agencies, political subdivisions, labor unions, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees . . . or receivers." 42 U.S.C. § 12111(7). 7 Because the School is operated and controlled by the Church, hereinafter the School and Church collectively will be referred to simply as the "Church."