only teachers who adhere to the school's moral code and religious tenets. See Part IV B 2 b, supra.
Plaintiff's argument that the School is not a religious entity, and therefore cannot be afforded the protection of the First Amendment or the exceptions to Title VII, is without merit, given the School's teachings, curriculum, self-promotion, and name. See, e.g., James Traub, Floyd Flake's Middle America, The New York Times Magazine, Oct. 19, 1997, at 60-106. The School is indisputably a religious entity.
The facts and evidence are extremely sparse. The record thus far does not indicate whether anyone else--male or female has ever been fired as a teacher by the Defendant for sexual intercourse outside of marriage.
Plaintiff's evidence of Defendant's reliance on pregnancy at the time of firing, its embarrassment about pregnancy graffiti on the walls of its boys' bathroom, and its willingness to re-hire the Plaintiff after she gave birth might lead a jury to find that the religious reason premarital sex for the termination is a pretext. Contrariwise, a jury might well find that re-employment was offered because the School's religious beliefs advocate allowing a sinner a fresh start, to "go, and sin no more." John 8:11 (King James Version). Or it might simply not believe the Plaintiff's version of the incident.
B. Jury as the Constitutional Institution for Resolving Ambiguity
Issues of fact are presented. A jury is in at least as good a position as a judge or appellate court to determine whether it was pregnancy or fornication that caused the Defendant to dismiss the Plaintiff. As Justice Black reminded us in United States v. Quarles, 350 U.S. 11, 18, 100 L. Ed. 8, 76 S. Ct. 1 (1955): "Juries fairly chosen from different walks of life bring into the jury box a variety of different experiences, feelings, intuitions, and habits."
Even as to adultery which is widely condemned and is a clear violation of the Decalogue--there is said to be variation in attitude, depending upon the income and reading habits of the adults questioned. See Hendrik Hertzberg, Survey, The New Yorker, Jan. 5, 1998, at 29 (readers of New Yorker "are far more tolerant of adultery: half say it is acceptable under certain circumstances, while 84 percent of [those with moderate incomes] and 74 percent of those with [high income] say it is always morally wrong"). But cf. Carrie Teegardin, Opinion on Adultery Remains the Same--it's a no-no, Intelligencer Journal, Lancaster New Era, Aug. 27, 1996, at A7 ("Between 1974 and 1994, the percentage of Americans who said it is 'always wrong' for a married person to have sex with someone other than their husband or wife increased from 73 to 78 percent.").
These differences in societal views does not mean that the heterogeneous jury likely to serve in the Eastern District of New York covering all of Staten Island, Brooklyn, Queens, Nassau, and Suffolk would substitute its view of what the law is for that charged by the court. Experience suggests that jurors would follow the law. Nevertheless, in their evaluation of the evidence and conclusions as to the facts, differences in experience and outlook might well make a difference. Cf. United States v. Shonubi, 895 F. Supp. 460, 482-83 (E.D.N.Y. 1995) (discussing decision-maker's use of inferences based on prior information and training), vacated on other grounds, 103 F.3d 1085 (2d Cir. 1997); Mae C. Quinn, The Garden Path of Boyles v. Kerr and Twyman v. Twyman: An Outrageous Response to Victims of Sexual Misconduct, 4 Tex. J. Women & L. 247, 264-65 (1995). Even judges frequently differ in the conclusions they draw from the evidence when determining intent in discrimination cases. See, e.g., Stern v. Trustees of Columbia Univ., 131 F.3d 305 (2d Cir. 1997) (trial judge and one member of court of appeals panel have no doubt that there was no discrimination, while two appellate judges are dubious and find summary judgment inappropriate on the evidence); Fisher v. Vassar College, 114 F.3d 1332 (2d Cir. 1997) (en banc) (judges differed in evaluation of evidence of discrimination on the basis of gender).
The complex history of women's rights, employment, and sexuality demonstrated in Part IV E, supra, as well as normal methods of determining witnesses' credibility, might lead different jurors to evaluate differently the veracity of the witnesses and the honesty of the Defendant's proffered reason for dismissal. Under such circumstances, a decision by a cross section of the community in a jury trial is appropriate. "The jury ... will be entitled to view the evidence as a whole in assessing whether there was impermissible discrimination and whether the ... proffered explanation is a pretext for that discrimination." Stern v. Trustees of Columbia Univ., 131 F.3d 305 at 314 (2d Cir. 1997).
The motion by Plaintiff and the motion by Defendant School for summary judgment are denied.
Jack B. Weinstein
Senior District Judge
Dated: March 2, 1998
Brooklyn, New York
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