Petition for Writ of Certiorari — Seaborn v. Florida Department of Corrections

v8.

Court,

FILED

98 998 DEC 1 41998

OFFICE OF THE CLERK

In The

Supreme Court of the United States

otnesahiimaaia i aciesinialiepisans

October Term, 1998

CHARLES SEABORN AND ROBERT HARRIS,

Petitioners,

vs.

STATE OF FLORIDA,

DEPARTMENT OF CORRECTIONS,

Respondent.

Petition for Writ of Certiorari to the United

States Court of Appeal for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

Marie A. Mattox Richard E. Johnson

Mattox & Hood, P. A. Counsel of Record

310 East Bradford Road 314 West Jefferson Street

Tallahassee, FL. 32303-4804 Tallahassee, FL 32301

Telephone: (850) 383-4800 Telephone: (850) 425-1997

Attorneys for Petitioners

4-

QUESTION PRESENTED

Whether Petitioners, two African American males

suffering from a skin condition, pseudo folliculitis

barbae, causing them to be unable to shave, have a

recognized cause of action under 42 U.S.C. §2000e et

seqg., after being denied promotions and being

otherwise subjected to a hostile work environment

within the Florida Department of Corrections due to

the fact that they were unable to shave and maintained

beards, contrary to the Respondent’s anti-beard policy.

Whether Petitioners, two African American males

suffering from a skin condition, pseudo folliculitis

barbae, causing them to be unable to shave, have a

recognized cause of action under 42 U.S.C. §12101,

et_seq,, as opposed to the Rehabilitation Act, when

their skin condition which caused Petitioners to

maintain beards, affected the Petitioners ability to be

promoted and thus limited their ability to work.

“i-

PARTIES TO THE PROCEEDING

The parties to this litigation are:

Plaintiffs (Petitioners)

Charles Seaborn

Robert Harris

Defendant (Respondent):

State of Florida,

Department of Corrections

“iti-

TABLE OF CONTENTS

Page No.

Gussie Preneeell «os vs c'tnesceca necenvase i

Parties to the Proceeding ............+++000. ii

Tabi EU ono ko 0546064646 bee aes iii

yp ge Re errr ry ei ere v

Cogteiens DA 2 os ctedccnccssuesdesséasees 1

Statement of Jurisdiction ............e-ee008. 1

Constitutional and

Statutory Provisions Involved .............+. 1

Sean GE Gb SOS ook kook ch cts avedavnses 2

Summary of the Argument ...........0.000. 6

Reasons for Granting the Writ .............. 8

I. This Court Should Grant the

Petition Because the Opinion Below

Conflicts With This Court’s Prior

Rulings On Scope of Title Vil

(42 U.S.C. §2000e et seg.) And

Persons Entitled To Protection

Re 6k 4 bb 8 Ce keke ne enkbenns 8

:

IL. The Petition Should Be Granted

Because The Opinion Below

Conflicts With The Intended

Scope Of 42 U.S.C. §12101

et seq., As A Protection For

Persons With Disabilities Such

ee ee IE 256i oie vib g koi ovhcs 26

cae cpa Pe EAD Oe eT 31

Pe

TABLE OF CITATIONS

Page No.

Cases Cited:

United States Supreme Court Cases:

Connecticut v. Teal, 457 U.S. 440 (1982)....... 13,16

Dothard v. Rawlinson, 433 U.S. 321 (1977) ..... 11,13

Griggs v. Duke Power Co., 401 U.S. 424 (1971) .. 9,11

Harnis v. Forklift Sys., Inc., 510 U.S. 17 (1993) .. 24,27

International Brotherhood of Teamsters

v. United States, 97 S.Ct. 1843{1977) ....... 21

McDonnell Douglas Corp, v. Green,

WEE GA TAPE 8 oxo teens 17,18,19

St. Mary's Honor Center v. Hicks,

ee Wes es 17,19

Texas Dept. of Community Affairs v. Burdine,

ORAS TO oo on cee sca 17

Wards Cove Packing Co. v. Atonio,

490 U.S. 642, 104 L. Ed. 2d 733,

1006. 5 SS a ..... es, 9,10

Watson v. Ft. Worth Bank and Trust,

et A i ns ok eb ah oe 10,13

Federal Circuit Court Cases:

Amnstrong v. Flowers Hospital, Inc., 33 F. 3d 1308

(SURG SORE ra be 10

Batey v. Stone, 24 F. 3d 1330

ae Wc re ee 17,18

Burns v. Gadsden State Comm. College,

908 F. 2d 1512 (11th Cir. 7) ERAGE Sere eae 20

Clark v, Coats & Clark, Inc., 990 F. 2d 1217

Te 0 ee ee ee 19

Collins v. State of Illinois, 830 F. 2d 692

PON Uae Ts eee ae 30

Contreras v. City of Los Angeles. 656 F. 2d 1267

Ne SO a 13

Duckett v. Dunlop Tire Corp., 120 F. 3d 1222

ob U8 A. ES Resse eee 29

EEOC v. Greyhound, 635 F. 2d 188

SNe BE ee fe ee YS eg 11,12

Fitzpattick v. City of Atlanta. 2 F. 3d 1] 12

LASteG be 13,14,15,16,18,29

Harris v. H & W Contracting, Co.,

102 F. 3d 516 (11th Cir. + | Spare tobe y 27,30

Henson v, City of Dundee, 682 F. 2d 897

TO Cee SOs, oes is cece ek ae

Hill v. Seaboard Coast Line R.R. Co.,

885 F. 2d 804 (11th Cir. 1989) ............ 18

Howard v, BP Oil Company, 32 F.3d 520

CR SO ak eo ae ek sk bs eS 18

Hung Ping Wang v. Hoffman, 694 F. 2d 1146

Pee SOE Ns hs Fie ee haas Cae eA 13

Jackson v, Veterans Admin., 22 F. 3d 277

ep Ue | Rae 2 a a ar erat 27

James vs. Stockham Valves & Fittings Co.,

ee © ae OR, TE Na eka eo Sb real 21

Lasso v. Woodmen of the World,

741 F. 2d 1241 (10th Cir. 1984) ........ 12,13

League of United Latin American Citizens v.

City of Salinas Fire Dept.,

Got F. 2a Boe Cee ee OED oie cece ese 16

McKay v. Toyota Motor Mfg. U.S.A., Inc.,

LIOF. 36 369 (60a Caer 1997) 2... oe ee 29

Meeks v. Computer Assocs. Int'l,

SP. 36 108s Cli Cer. 1994)... 0. ce. 19

Mitchell v. Mid-Continent Spring Co.,

583 F. 2d 275 (6th Cir. 1978),

cert. denied, 441 U.S. 922 (1979) .......... 11

-viii-

Perryman v. Johnson Products Co., Inc..

698 F. 2d 1138 (11th Cir. EER necraiae

Tavior v. Hudson Pulp and Paper Corp..

788 F.2d 1455 (11th Cir. Ee ee er

Terrell v. USAir, 132 F, 3d 62] (11th Cir. 1998) .. 26 27

Thomas v, Washington County School Board,

915 F.2d 922 (4thCir.1990)..... 10,11

Wu v. Thomas, 847 F. 2d 1480 (11th Cir. 1988),

cert. denied, 490 U.S. 1006 eee 17,18

Federal District Court Cases:

Bailey v. Binyon.

583 F. Supp. 923 Src Oe, IGOR fo

EEOC v. Trailways. Inc..

530 F. Supp. 54 (D.C. Colo. WORD ok

Ellis v. Wal-Mart Stores, Inc., 1996 U.S. Dist.

LEXIS 20194 (M_D. Ala. | RRS ee pee

Richardson v. Quik Trip Corp.,

591 F. Supp. 1151 (S.D. MS 5k re

Rio v. Runyon,

972 F. Supp. 1446 (S.D. Fla. alt Gene

Woods v. Safeway Stores. Inc.,

420 F. Supp. 35(E.D. Va. 1976)...

State Court Cases:

lumbia, 654 A. 2d 847,

1994 D.C. App. LEXTS 156

I OS cS ie aie | 15,16

University of Maryland, 93 Md. App. 303,

612 A. 2d 305 (Ct. App. Md. 1992) ........ 15

Statutes Cited:

Se Rs, i le ha se wa a Passim

Te Se Dk Or 6s 2) hee veo eee 18

ae SA EE GN e 0 K AS ee Passim

Th UA, BERD sv o t hoe ee ae 25

GER WERE | iho iM ccceheateeean Passim

Ce a ea a eee s oe ere ee 25

MENA BEOIOe 65 o osha eee eee 24

Rules Cited:

29 C.F.R. Pt. 1630, Appendix to Part 1630 --

Interpretive Guidance to

Weer aoa os os bee ae eee 25

CP Mi oe cece cas 25,26

29 C.F.R. §1630.5

29 C.F.R. §1614.203(a)(3) .._

29 C.F.R. §1630, App., §1630.2()) _ 25,26

“xi

APPENDICES

(Following Page 31)

Page

Appendix A - Opinion of the United States

Court of Appeals for the Eleventh Circuit,

Pas SE TK Bs ek a eee ee la

Appendix B - Opinion of the United States

District Court, Northern District of Florida

at Tallahassee, Fled February 11, 1997........ Ib

Appendix C - Opinion of the United States |

District Court, Northern District of Florida

at Tallahassee, Filed June 13,1997 ........ lc

oltn

Petitioners, Charles Seaborn and Robert Harris,

respectfully request that a writ of certiorari be issued to

review the judgment of the United States Court of Appeals for

the Eleventh Circuit in this case.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Eleventh Circuit is reported at 143 F. 3d 1405 (11th Cir.

1998) (App. A). The opinion of the District Court dated

February 11, 1997, is reprinted in Appendix B. The opinion

of the District Court dated June 11, 1997, is reprinted in

Appendix C.

STATEMENT OF JU RISDICTION

The judgment of the United Stated Court of Appeais

for the Eleventh Circuit (“Court of Appeals”) was entered on

June 16, 1998. This Court has jurisdiction pursuant to 28

U.S.C. §1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Title VII, 42 USC. §2000e et _seg., prohibits

employers covered by the statute from taking actions or

engaging in practices that discriminate against workers or job

applicants on the basis of their race, color, religion, sex or

national origin. [42 U.S.C. §2000 e-2].

The Americans with Disabilities Act (“ADA”), 42

U.S.C. §12112(a) provides that

<}e

[n}o covered entity shall discriminate against a

qualified individual with a disability because of the

disability of such individual in regard to job application

procedures, the hiring, advancement, or discharge of

employees, employee compensation, job training, and

other terms, conditions, and privileges of employment.

STATEMENT OF THE CASE

The fundamental question in this case is whether

persons such as the Petitioners, African American males, who

have a skin condition commonly known as “PFB” (pseudo

folliculitis barbae), and are thus unable to shave, have a cause

of action under either 42 U.S.C. §2000e et seqg., or 42 U.S.C.

§12101 et seq. This case arises in the context of an

employment setting within the Florida Department of

Corrections (hereafter “Department’’), where the Petitioners

were (are) employed, and which Department has an internal

“no beard policy” with a limited exception allowing employees

such as the Petitioner to maintain beards “when medically

necessary.” Both Petitioners presented medical

documentation to the Department showing that they had PFB

and that they needed to have beards due to their medical/skin

condition. Although the Department permitted Petitioners to

maintain beards, Petitioners were thereafter denied promotions

and were subjected to a hostile work environment. Petitioner

Harris was also terminated. The background of this case is set

forth below.

A. Procedural Background

Petitioners initially filed this action pursuant to 42

U.S.C. §12101 et seq. (ADA claim) and 42 U.S.C. §2000e et

seq. (Title VII claim). They claimed that they were treated

A SRN NS DINER

Lp

differently than their co-workers, were subjected to differential

terms and conditions of their employment and were subjected

to a hostile work environment in their employment with the

Department of Corrections due to their disability, pseudo

folliculitis barbae and/or their race. On F ebruary 11, 1997, the

trial court entered an Order granting Defendant’s Motion for

Summary Judgment on the PlaintifPs ADA claim. On June

13, 1997, the trial court entered an Order granting

Defendant’s Motion for Summary Judgment as to Plaintiff's

race discrimination claim.

Petitioners timely filed a Notice of Appeal with the

United States District Court, Northern District of Florida,

Tallahassee Division, on July 14, 1997. On June 16, 1998, the

Eleventh Circuit Court of Appeals rendered its decision

denying Petitioners relief under both Title VII and the ADA.

B. Statement of the Facts

At all times pertinent to this action, Petitioners were

employees of the Department of Corrections and worked as

correctional officers. Petitioners are both African American

males who suffer from a skin condition known as pseudo

folliculitis barbae (hereinafter "PFB"). During the course of

their employment with the Department, it was separately

determined by both of Mr. Seaborn and Mr. Harris that they

suffered from PFB. Separately and without consulting each

other, both Mr. Seaborn and Mr. Harris placed the

Department, their employer, on notice that notwithstanding its

“no beard policy”, with an exception for “medical necessity”,

they needed to be able to grow beards due to their skin

condition, PFB. Petitioners were then permitted to have

beards. Thereafter, however, the conditions of their

-4-

employment changed and they were adversely affected in the

terms and conditions of their employment.

Petitioners then filed the underlying civil action against

the Department claiming that they were entitled to protection

under Title VII (42 U.S.C. §2000e et seq.) and the ADA (42

U.S.C. §12101 et seq.}. Petitioner Seaborn claimed that the

medical need to maintain a beard caused him to be harassed tn

the workplace. He further claimed: (1) that he was treated

differently than his coworkers because he was required to

wear facial hair due to his skin condition; (2) that he was

denied promotions when he was the more qualified applicant

for the positions sought than the person actually promoted;

and (3) that he was disciplined differently than other

employees of the Department without facial hair. He claimed

that his supervisors had taken actions against him when his

non-bearded coworkers had not been disciplined for the same

actions that he had been disciplined for. Petitioner Seaborn

maintained that the adversity towards him in the imposition of

disciplinary actions and his failure to be promoted were due at

least in part to his race, facial hair and skin condition, PFB.

Petitioner Harris’ claims were similar to those of

Seaborn. He claimed that during the course of his

employment with the Department, he was treated differently

than his white coworkers because he was required to wear

facial hair due to his skin condition. He claimed that he was

denied employment opportunities when he was the more

qualified applicant for positions than the person actually hired

for the positions, and he was disciplined differently than

employees of Department without facial hair. Harris claimed

that he was unable to comply with the Department’s “no

beard” policy due to his skin abnormality, which was medically

documented for his employer. He also claimed that his

Ge

supervisors took adverse actions against him different than his

non-bearded coworkers. Harris then Claimed that the

adversity towards him in the imposition of disciplinary actions

including his termination and his failure to receive favorable

assignments and transfers was due at least in part to his race,

facial hair and PFB.

The District Court disagreed and held that Petitioners

had stated a claim of “beardism” as opposed to “racism” and

that they were not protected employees under either Title VII

or the ADA. The appeal followed challenging this ruling to

the Eleventh Circuit Court of Appeals and the Court of

Appeals affirmed this portion of the District Court’s ruling,

without opinion.

The Court of Appeals, unfortunately, never addressed

the Petitioner’s claims under Title VII and based its adverse

tuling against Petitioners solely on their ADA claims.

Petitioner’s primary claim, however, is under Title VII, not the

ADA and this claim was not specifically addressed by the

Court of Appeals. The Court of Appeals, after disposing of

another issue not relevant to this appeal, held: “Having

resolved the Eleventh Amendment issue against Florida, we

may now address the merits of Appellant’s ADA claim. We

affirm the dismissal of Appellant’s ADA claims on the basis of

the well-reasoned district court opinion.”

There were two opinions, however, issued by the

District Court, one on February 11, 1997 and the other on

June 13, 1997. The Eleventh Circuit never addressed the

Petitioner’s claims under Title VII but impliedly affirmed the

District Court’s opinion dated June 13, 1997, regarding

Petitioner’s Title VII claim by its affirmance of the District

Court’s opinions.

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In ruling only on Petitioner’s ADA claim, the Eleventh

Circuit ignored the primary basis of relief sought by

Petitioners, that being Title VII. Title VII is the vehicle

authorized by Congress for challenging employment actions

motivated by the race of the employee. Petitioners presented

significant evidence at the summary judgment stage below that

the actions taken against them were motivated because they

had beards, that they had to wear beards because of their skin

condition, and that the skin condition, PFB, affects primarily

black males. This evidence was ignored when the District

Court held that the Petitioners could state no claim under

either Title VII or the ADA. The Eleventh Circuit likewise,

by implication, affirmed this holding.

SUMMARY OF THE ARGUMENT

Both the District Court and ther the Eleventh Circuit

Court of Appeals erred in denying Petitioners relief under both

Title VII and the ADA. The issues in this case are simple and

not complex and do not involve the sufficiency of evidence

necessary to withstand a summary judgment motion. The

issues raised in this Petition are issues of law only and involve

the scope of Title VII and, less significantly, the ADA.

Petitioner Seaborn attempted to be promoted within

the Department of Corrections. He was not promoted despite

his qualifications. Pvtitioner Harris did not attempt

promotions within the Department because his efforts would

have been futile. Petitioner Harris, however, was terminated.

Both Petitioners claim that they are protected under

Title VII and the ADA because the failure to promote these

gentlemen and the hostile work environment created for them

was caused by their beards, worn solely because of a skin

Fo

condition, PFB, which makes it impossible for them to shave.

The Department of Corrections has a “no beard policy” with

one exception, to wit: “when medically necessary.” Both

Petitioners maintain that they were not promoted and were

Otherwise treated adversely because of their beards, worn

because of the PFB, which undeniably disproportionately

affects black males as compared to white males.

Both the District Court and the Eleventh Circuit Court

of Appeals held that these gentlemen were not protected under

Title VII in their race discrimination claim nor were they

protected as persons with a “disability” under the ADA.

Petitioners maintain that these holdings are error and that “but

for” their race, they would not have PFB. Consequently, Title

VII should provide an avenue for relief Any holding to the

contrary is error.

REASONS FOR GRANTING THE WRIT

L.

THIS COURT SHOULD GRANT THE

PETITION BECAUSE THE OPINION

BELOW CONFLICTS WITH THIS

COURT’S PRIOR RULINGS ON THE

SCOPE OF TITLE VII AND PERSONS

ENTITLED TO PROTECTION

THEREUNDER

Petitioner brought this disparate treatment and

disparate impact claim against the Department under Title VII'

'The issue in this Petition is not whether the

Petitioners were able to present evidence sufficient to

withstand summary judgment at the District Court

level. There is no question that the Petitioners

presented sufficient evidence supporting their claims at

the summary judgment stage. The District Court

found, however, that the claim that Petitioners

presented (characterized by the District Court as

“beardism”) was not a recognized cause of action

under Title VII. Thus, at the summary judgment

stage, Petitioners pointed to specific portions of the

record that supported their claim which, if the District

Court had found that the Petitioners were entitled to

protection under Title VIL, would have been sufficient

to withstand summary judgment below. All of this

evidence was ignored because the District Court did

not find that Petitioners were entitled to protection

-9.

claiming that they were not promoted due to their race, that

they were subjected to a hostile work environment due to their

race and that Petitioner Harris was terminated at least in part

due to his race.

The controlling facts are not complicated. Petitioners,

empioyees or former employees of the Department, both have

facial hair necessitated by a skin condition commonly known

as PFB. The Department has a “no beard policy” preventing

facial hair on employees unless “medically necessary.”

Petitioners were Subjected to adverse treatment in the

workplace due to their facial hair. The issue is whether

Petitioners have a recognized cause of action under Title VIL

This case, then, is primarily about a facially neutral

employment policy that discriminates against black males

when applied.

A. The Policy of the Department At Issue Has A

Disparate Impact.

Title VII forbids employment policies with a disparate

impact unless the policy is justified by legitimate employment

goals. Griggs v. Duke Power Co. 401] U.S. 424, 429-31, 28

L. Ed. 2d 158, 91S. Ct. 849 (1971). To make a case under

Title VII for disparate impact, the aggrieved employee must

identify a specific employment practice that has a significantly

disparate impact. Wards Cove Packin Co. v. Atonio, 490

under Title VII. The Court found that Petitioners had

stated a claim of “beardism”, which, according to the

District Court, was nota protected classification under

Title VII.

-10-

U.S. 642, 656-58, 104 L. Ed. 2d 733, 109 S. Ct. 2115 (1989).

Petitioners contend in this case that the District Court and

then the Eleventh Circuit committed error in holding that the

Petitioners failed to satisfy these requirements. Through the

record and reliance on studies conducted on the prevalence of

PFB among black and white males, the Petitioners

demonstrated that the Department of Corrections policy

necessarily excludes black males with PFB from promotions

and creates a hostile work environment for black males with

PFB. In doing so, Petitioner's have shown that the

Department of Corrections facially neutral grooming

requirement operates as a “built-in headwind” for black males.

Griggs, 401 U.S. at 432. The records shows that PFB almost

exclusively affects black males and that white males rarely

suffer from PFB or a comparable skin disorder that may

prevent a man from appearing clean shaven.

To establish a prima facie case of disparate impact, "a

plaintiff must first identify the specific employment practice

that allegedly has a disproportionate impact." Armstrong v.

Flowers Hospital, Inc., 33 F. 3d 1308, 1314-15 (11th Cir.

1994). Next, the plaintiffis required to "establish causation by

offering statistical evidence sufficient to show that the practice

in question has resulted in prohibited discrimination." Id.

"The statistical disparities must be 'sufficiently substantial that

they raise[ } an inference of causation." Id. quoting Watson v.

Ft. Worth Bank and Trust, 487 U.S. 977, 995 (1988).

Statistics, however, are not always required to prove disparate

impact. See Thomas v. Washington County School Board,

915 F. 2d 922, 926 (4th Cir. 1990). As the court held in

Thomas:

... although disparate impact cases usually focus on

statistics, they are neither the exclusive nor a necessary

o} i.

means of proof. The paucity of statistics is no bar to

the prospective injunctive relief [plaintiff] seeks, for

[plaintiff] has proved by other means that the Board's

hiring practices have a disparate impact on minorities

and violate Title VII. She produced evidence of at

least 46 cases of nepotism, a stipulation from the

Board which revealed a practice of posting vacancies

in schools and offices with public notice only in

exceptional circumstances, and testimony from other

black applicants which indicated they were not being

given an Opportunity to compete for teaching jobs,

largely because the Board's practices of nepotism and

word-of-mouth hiring kept them unaware of job

Openings.

Id.

In the instant case, there are no statistics to offer

because the numbers are simply too small for a Statistical

analysis to be performed. However, as in Thomas, Petitioners

came forward with evidence that the Department’s "no beard"

policy, even with its exception "when medically necessary",

has a disparate impact on black males with beards, namely

Petitioners.

"If a “no beard" policy falls more heavily on blacks, it

is no less within the ambit of Title VII than the requirement

that an applicant have a diploma or pass a test, Griggs v. Duke

Power Co., 401 U.S. 424 (1971), meet minimum height and

weight standards, hard _v. Rawlinson, 433 US. 321

(1977), or demonstrate certain lifting ability, Mitchell v. Mid-

i ri » 583 F. 2d 275 (6th Cir. 1978), cert,

denied, 441 U.S. 922 (1979)." EEOC vy. Greyhound Lines.

o12-

Inc,, 635 F. 2d 188, 196 (3d Cir. 1980)(dissent). As the

dissent stated in EEOC v, Greyhound Lines, Inc. :

A "no beard" policy is to be treated no differently than

any other employment policy, and indeed should be

subjected to exacting inquiry since the skin condition

it affects results from an immutable physical

characteristic.

Id. at 196.

Petitioners proved that they were the only two black

males who have beards who attempted to be promoted. They

presented evidence to show that no black male with a beard

holds a supervisory position within the Department at least at

the Tallahassee, Florida, facility where they were employed.

They showed that they were not being given an opportunity to

realistically compete for the sought after positions simply

because they had to wear beards and they produced evidence

that no bearded person would ever be promoted.

The challenged practice that they identified is the "no

beard policy" even with its exception for "beards when

medically necessary" because this facially neutral policy is

being enforced in a racially discriminatory way. The factual

basis of the Petitioners claims was disclosed by evidence that

established that the Department had erected barriers that

“invidiously discriminate on the basis of race." Id, at 924.

The above analysis is appropriate in this non-class

action case even though the numbers are relatively small

because the Petitioners showed that one hundred percent of

the black males with PFB employed within DOC have never

been promoted. See e.g., Lasso v. Woodmen of the World,

OS TOA OAL OR

-12-

741 F. 2d 1241 (10th Cir. 1984)(court was not persuaded that

a disparate impact claim could not be asserted in a private,

non-class action case and instead held that an individual

plaintiff could assert a disparate impact claim under Title VII);

Hung Ping Wang v. Ho 694 F. 2d 1146, 1147 (9th Cir.

1982)(individual plaintiff may prevail on a disparate impact

theory if he shows that the employer was using the challenged

practice as a mere pretext for discrimination. )

In light of the evidence presented by the Petitioners

and the holdings of the Cases cited above, Plaintiffs did, in

fact, establish a prima facie case of disparate impact, contrary

to the holding of the trial court. In order to show disparity

under a disparate impact theory, the statistical disparities must

be “sufficiently substantial that they raise an inference of

causation.” Watson v. Ft. Worth B nd Trust, 108 S. Ct.

2777, 2789 (1988). Here, the statistics show that 100% of a

subgroup of black employees of Defendant have been

adversely affected by an identified policy of the Defendant.

After this finding, the next step would be to determine

whether the Department proved either that the Petitioners’

Statistics are inaccurate or that no disparity exists, Dothard v.

Rawlinson, 433 U.S. 321, 338-39 (1977), or that the practice

is necessary to the efficient operation of the business,

Connecticut v, Teal, 457 U.S. 440 (1982); Fitzpatrick v. City

of Atlanta, 2 F. 3d 1112 (11th Cir. 1993); Contreras v City of

Los Angeles, 656 F. 2d 1267, 1271 (9th Cir. 1981). Even

after such a showing, the plaintiff "may still overcome a

proffered business necessity defense by demonstrating that

there exist alternative policies with lesser discriminatory

effects that would be comparably as effective at serving the

-14-

employer's identified business needs." Fitzpatrick v, City of

Atlanta, 2 F. 3d at 1118.

In this case, Petitioners contend that the burden never

shifted back to them to show “alternative policies with lesser

discriminatory effects" because the Department never

established a legitimate business justification for the "no

beards policy" (even with its exception). In Fitzpatrick, the

Eleventh Circuit held that “once a plaintiff makes out a prima

facie case, the full burden shifts to the defendant who must

demonstrate business necessity in order to avoid liability.” 2

F. 3d at 1117. The trial court in the instant case, however,

never addressed the issue of whether the Department

demonstrated business necessity in order to avoid liability

because it found that the Petitioners failed to set forth a prima

facie case. This holding was error even in light of the ultimate

holding of the Eleventh Circuit in Fitzpatrick.’

Significantly, in Fitzpatrick, the court presumed that

the plaintiffs had adequately alleged a prima facie case of

disparate impact. Fitzpatrick, 2 F. 3d at 1118. This case

supports a finding that the Petitioners in this case should have

been protected under Title VII under the Eleventh Circuit’s

own precedent. Recall, however, that the Eleventh Circuit

never addressed the Title VII liability issue in the opinion of

June 16, 1998. In this action, Petitioners challenge the

legitimacy of the selection system itself in that even although

? The Department in this case could never

come forward with the requisite showing of a

“legitimate business defense” required to avoid liability

because the facts to support such a defense do not

exist.

beards may be worm when "

policy is truly in effect

-15-

* In Fitzpatrick v. City of Atlanta, 2 F. 3d at

1121, the Court noted that courts have absolved

plaintiffs in certain kinds of cases (such as the present

case) of responsibility for adducing evidence of their

Own to prove the "racially discriminatory nature of a

particular policy", where the “racially discriminatory

nature" of that type of policy has been consistently

recognized in other decisions. The court in Fitzpatrick

Stated that "[rJather than force such plaintiffs to

‘reinvent the wheel,’ courts have taken judicial notice

of the findings made by other courts in similar cases."

Id. at 1121. Petitioners in the present case requested

that the trial court take judicial notice of the cases in

which "no beard" policies have been discussed and

found to have a disparate impact on black males with

PFB. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112

(11th Cir. 1993)(business necessity found to absolve

the Defendant of liability); Kennedy v. District of

Columbia, 654 A. 2d 847 (D.C. App. 1994):

University of Maryland. 93 Md. App. 303, 612 A. 2d

305 (Ct. App. Md. 1992); Woods v. Safeway Stores,

Inc., 420 F. Supp. 35, 42 (E.D. Va. 1976); Bradley v.

. Pizzaco of Nebraska, Inc., 939 F. 2d 610, 613 (8th

Cir. 1991); EEOC v. Trailways. Inc., 530 F. Supp. 54

(D.C. Colo. 1981); Richardson v Quik Trip Corp.,

591 F. Supp. 1151 (S.D. Iowa). There is no specific

reference to the trial court’s consideration of this

. Fequest by Plaintiffs in the instant case.

medically necessary", a no beards

which effects black males more

frequently than other groups of applicants.> Under their

disparate impact theory, they cannot be required to prove that

-16-

they qualified for promotions under this system that they claim

to be discriminatory unless the legitimacy of the system is first

established and it is Defendant's burden to do this. See

nit tin ican Citizens v. City of Sali

Fire Dept., 654 F. 2d 557, 559 (9th Cir. 1981). The District

Court never got to this issue because of its ruling that

Plaintiffs failed in their prima facie showing.

Petitioners claimed in this case that the facially neutral

policy of “no beards” (except when medically necessary)

affected black males disproportionately and the Department

offered no evidence that white males with beards were treated

similarly to the Petitioners herein.* Likewise, the Department

in this case came forward with no "business need" for the "no

beard" rule. "Safety", when offered under circumstances far

more compelling than in this case, has been held an insufficient

reason to deny black males suffering from PFB their jobs. See

Kennedy vy. District of Columbia, 654 A. 2d 847, 1994 D.C.

App. LEXIS 156 (D.C. App. 1994). Courts have also

stressed that merely asserting a safety rationale does not

suffice to prove the defense. See Fitzpatrick v. City of

Atlanta, 2 F. 3d at 1119. Under a disparate impact theory of

liability, even in this case where the Petitioners offer only

themselves as "proof" of the existence of a discriminatory

policy neutral on its face, they offered sufficient proof to

4

The fact that the employer has a racially

balanced "bottom line” is not dispositive in a disparate

impact case such as this. Title VII prohibits

employment practices having disparate impact despite

the employer's racially balanced "bottom line."

Connecticut v, Teal, 457 U.S. 440 (1982).

-]7-

withstand summary judgment. The District Court and

Eleventh Circuit Court of Appeal erred in holding otherwise.

B. The Petitioners Also Set Forth a Valid Claim

Under a Disparate Treatment Theory

As to the Petitioners’ ability to “prove” their case with

the use of circumstantial evidence under a disparate treatment

theory, where the evidence is circumstantial, a plaintiff

establishes intentional discrimination under a variation of the

burden-shifting analysis Set forth in McDonnell Doug! orp.

v. Green, 411 US. 792 (1973) and Texas Dep' of Communi

Affairs v. Burdine, 450 U.S. 248 (1981). See also St. Mary's

Honor Ctr, v. Hicks, 509 U.S. 502, 518 (1993). Under this

framework, the plaintiff must first raise an inference of

discrimination by establishing a prima facie case. Batey v.

Stone, 24 F. 3d 1330, 1333 (11th Cir. 1994),

Hence, the p!+intiff must prove by a preponderance of

the evidence in a faijure ._ promote claim: (1) that he belongs

to a protected class; (2) that he applied for and was qualified

for the position for which the employer was seeking

applicants; (3) that he was denied the promotion; and (4) that

another equally or less qualified individual outside the

protected class received the promotion. Batey v. M.P.W.

Stone, 24 F. 3d 1330, 1334n 1] (11th Cir. 1994)(citing Wu

At the trial court level, the Department did not

contest that Petitioners would have been qualified for

the positions sought by them and that the person or

persons actually selected for the promotions were

. €qually or less qualified than they were.

-]8-

v. Thomas, 847 F. 2d 1480, 1483 (11th Cir. 1988), cert.

denied, 490 U.S. 1006 (1989). In establishing the elements of

a prima facie case, the plaintiff's burden is "minimal." Howard

v. BP Oil Co., Inc., 32 F. 3d 520, 524 (11th Cir. 1994).

In this case, the Petitioners met their initial burden

using the McDonnell Douglas framework. The Petitioners are

black and, thus, are members of a group protected by the anti-

discrimination laws at issue in this case. Not only are they

black, but they suffer from a medical condition known as

pseudo folliculitis barbae Courts have generally recognized

that this condition disproportionately affects black males and

black males with this condition have therefore been recognized

as being included within a protected class. See eg.,

Fitzpatrick v, City of Atlanta, 2 F. 3d 1112 (11th Cir. 1993);

EEOC y. Greyhound, 635 F. 2d 188 (3d Cir. 1980).

Additionally, Petitioners were not hired for the

positions sought by them and no bearded person was so hired

nor has any black bearded person within the Department ever

been promoted. It should have been irrelevant in this

proceeding that a black person received one position sought

by Petitioner Seaborn because the person who received the

position, a black female, is still outside of the Petitioners’

protected class, i.e., black and "bearded". At the District

Court level, the Department of Corrections did not contest

that the Petitioners were at least as qualified as the persons

who received the positions sought by the Petitioners. See Hill

v. Seaboard Coast Line R.R. Co,, 885 F. 2d 804, 809-810

(11th Cir. 1989)({holding that "[a] plaintiff may establish a

prima facie case even if he shows that the non-minority

employee selected was equally as well qualified; he need not

show, as part of his prima facie case, that his qualifications

exceeded those of the non-minority employee").

-]9-

After the Petitioners’ prima facie obligations have been

satisfied, the burden then shifts to the defendant to "articulate

some legitimate nondiscriminatory reason" for its decision not

to promote the Petitioners. McDonnell Douglas, 411 U.S. at

802. The defendant's burden is "exceedingly light," Perryman

v. Johnson Products Co., Inc.. 698 F. 2d 1138, 1142 (11th

Cir. 1983), as it "must merely proffer [race-neutral] reasons,

not prove them." Meeks v. Computer Assocs. Int'l. 15 F. 3d

1013, 1019 (11th Cir. 1994). The proffered reason for the

employer's action, however, must be reasonably specific and

clear. McDonnell Douglas, 450 U.S. at 258.

In the present case, there were no reasons proffered by

the Department to show why Seaborn did not receive the

promotions sought by him. Thus, there should have been no

further obligation for Seaborn since the Department failed in

its burden of production. See C lark vs. Coats & Clark, Inc.,

929 F. 2d 604, 608 (11th Cir. 1991)(if the party moving for

summary judgment, however, fails to discharge its initial

burden, then the motion must be denied and the court need not

consider what, if any, showing the non-movant has made. )

With respect to Petitioner Harris (presuming that the

Department met its burden of production), the McDonnell]

Douglas framework, with its presumptions and burdens, drops

out of the case, and the inquiry should have become "whether

[the] plaintiff has proven ‘that the employer intentionally

discriminated against’ him because of his race." St. Mary's

Honor Center v. Hicks, 113 U.S. 2742, 2747 (1993). In other

words, at this stage, the plaintiffs burden of proving pretext

merges with the plaintiffs ultimate burden of proof of

intentional discrimination. McDonnell Douglas, 450 U.S. at

256.

-20-

Petitioners advanced three arguments before the

District Court supporting their position that the Department

alleged proffered explanation was pretextual. First, they

showed that they were qualified for the promotional positions.

Second, they identified the discriminatory statements and an

attitude of Defendant's employees toward them. Third, they

presented evidence regarding Defendant's promotion practices

and showed these practices to be discriminatory toward black

males with beards (worn solely because of their skin condition,

PFB). This evidence would have allowed a reasonable jury to

find a discriminatory animus that was a "motivating factor" in

Defendant's decision not to promote the Petitioners. See 42

U.S.C. §2000e-2(m). Petitioners thus presented credible

evidence that Mr. Seaborn should have received a promotion

and that “but for" his beard, this position would have been his.

With respect to Petitioner Harris, he showed the trial

court through both circumstantial and direct® evidence that he

did not apply for promotions because he knew that he would

° A plaintiff alleging disparate treatment may

prove a prima facie case either through direct evidence

of discrimination or with circumstantial evidence.

Burns v, Gadsden State Comm. College, 908 F. 2d

1512, 1517-18 (11th Cir. 1990). Considering this

strict standard, Petitioners submit that direct evidence

offered by them was sufficient to meet their prima

facie burden. However, they presented both the direct

and circumstantial evidence at the District Court level

in the event that the direct evidence was discounted or

held insuffictent to meet the “direct” evidence

standard.

Qi.

not be promoted because of his beard. He then argued that he

was not required to engage in an act of futility in applying for

positions that he knew and that history showed he would not

get. See International Brotherhood of Teamsters vs. United

States, 97 S.Ct. 1843, 1871-72 (1977); James vs. Stockham

Valves & Fittings Co,, 559 F.2d 310, 334 (Sth Cir. 1977).

Taylor v. Hudson Pulp and Paper Corp., 788 F.2d 1455 (11th

Cir. 1986).

With this and other evidence of record at the time

summary judgment was granted, the trial court should have

been convinced that Petitioners' beards, worn due to a feature

primarily affecting black males, and thus race, was left as the

motivating explanation for the failure of Defendant to promote

Petitioners. There was also ample trustworthy evidence in the

record in this case that the Department treated Petitioners

differently than white and non-bearded employees.

Unambiguous statements were made about the Petitioners not

being promoted due to their beards. By analogy,

“unambiguous racial epithets, particularly when uttered by an

employee's supervisor ‘automatically separate{]’" a black

employee from every non-black employee. Bailey v. Binyon.

583 F. Supp. 923, 927 (N.D. Ill. 1984). The comments about

Petitioners’ beards, located throughout the record in this case,

when combined with the other evidence of non-promotion

recited above, constituted strong circumstantial evidence from

which an inference of blatant, open racial discrimination

should have been drawn. In light of this evidence, any

purported race-neutral reasons for the non-promotion became

transparent and revealed underneath a racial animosity.

Significantly, there were no other facts that could have

been brought forward by the Petitioners because no other facts

existed. The facts that were presented, however, should have

3%

been convincing that a disputed issue of material fact existed

and would have been sufficient had the District Cov” and

Eleventh Circuit correctly interpreted the law under Titie VII

and held that the Petitioners had a recognized cause of action

thereunder. Petitioners maintain that the record evidence

would have been sufficient to defeat the Department’s Motion

for Summary Judgment but were deemed insufficient by the

District Judge solely because he rejected the Petitioners’

theory of liability. In other words, if the District Court had

not rejected the Petitioners theory of liability under Title VII,

the facts would have been sufficient under any standard of

review for summary judgment. The Petitioners, however,

could never have satisfied any standard, stringent or relaxed,

due to the fact that the District Court rejected their theory of

liability. Petitioners never could have won regardless of the

“facts” because the court decided that they were bringing a

case of “beard-ism” rather than “racism”. Petitioners

therefore contend that this case will turn on whether this

Court recognizes a cause of action under Title VII due to

differential treatment of black males due to their race-based

skin condition, PFB.’

F In footnote 3 of the District Court’s

June 13, 1997, Order, the Court referred to Plaintiffs’

“winding theory of the case in order to arrive at a

conclusion that, under the facts as presented here,

beard discrimination and race discrimination are one in

the same.” The six (6) points set forth in this footnote

are precisely the argument made by the Petitioners in

this Petition and support a cause of action under Title

VII. These six points are as follows:

1. Plaintiffs were not promoted because they

have beards;

“23.

The District Court held that because Other African

Americans were chosen as the Successful applicants for two of

the promotions sought by Mr. Seaborn, “logic dictates that

there is a reason other than the plaintiffs’ race that they did not

receive the promotions they desired. In this case, that reason

is patently clear: Plaintiffs wear beards.” The court then stated

that because black employees applied for and received half of

the promotions sought by Mr. Seaborn, “{c]learly, then, race

was not the factor that motivated Defendant to promote

persons other than Seaborn.”

With respect to Plaintiff Harris, the District Court held

that he “never even submitted one application for promotion.”

The trial court then stated:

“And while Harris argues that it would have been

futile for him to submit an application for a job given

comments made to him by supervisory employees of

Defendant, it is significant to note his explanation for

that futility. Harris does not Suggest that his race

would have rendered useless his ability to advance;

2. Plaintiffs have beards because their doctors

instructed them to grow beards;

3. Plaintiffs doctors instructed them to grow

beards because they have a skin condition known as

pseudo folliculitis barbae ("PFB”);

4. PFB predominately affects blacks;

5. Accordingly, Plaintiffs suffer from PFB

because they are black: and

6. Hence, Plaintiff are forced to have beards

because they are black.

-24-

instead, he states that he ‘did not apply for promotions

because he knew that he would not be promoted

because of his beard.” (emphasis in original)

The District Court again refused to accept a claim by

Mr. Harris that he has a beard due to his skin condition, PFB,

which effects black males in much greater numbers than it

effects white males. This is a claim made based on race and is

not based on the fact that Harris had a beard alone. The beard

is secondary to being black but, generally, if one has PFB, he

is black.

C. Petitioners Offered Sufficient Evidence to

Support a Hostile Work Environment Claim

With respect to the Petitioners’ hostile work

environment claim, the District Court found the evidence

offered by the Petitioners so deficient that no claim could be

stated under this theory. The reason for this deficiency,

however, was not the paucity of evidence to support the

hostile work environment claim, but rather the District Court’s

refusal to find that the actions against the Petitioners were due

to any recognized theory of liability.

Discriminatory conduct results in a hostile work

environment when it is "so severe or pervasive that it create[s]

@ work environment abusive to employees because of their

race, gender, religion or national origin," thus, offending "Title

VII's broad rule of workplace equality." Harris v. Forklift

Sys., Inc,, 510 U.S. 17, 22 (1993). To prevail on a hostile

work environment claim, the plaintiff must establish that: (1)

he belongs to a protected class; (2) he was subjected to

-25-

unwelcome racial harassment; (3) the harassment was based

on race; and (4) the harassment affected a term, condition or

privilege of employment. Henson v. ity of Dun 682 F.

2d 897, 903-05 (11th Cir 1982); Ellis v. Wal-Mart Stores,

Inc., 1996 U.S. Dist. LEXIS 20194 (M.D. Ala 1996)

The trial court found that the Petitioners failed to

satisfy the third prong of this four part prima facie test

because, as the court stated, “the full record demonstrates that

the alleged harassment to which Plaintiffs were subjected was

based on their beards, not their race.” Petitioners both agree

and disagree. Their claim is based on their beards and their

race, together.

In this case, the Petitioners set forth ample facts to

show that the comments about them were not infrequent but

were common place and were directed towards them due to

their beards and their race, not either factor by itself, As with

the disparate treatment claims by Petitioners, had the District

Court accepted their theory of liability and found that they

were in a protected class under Title VIL, the District Court’s

ruling on Petitioners’ “ hostile work environment claim” as

with their disparate impact and treatment claims, most likely

would have been different. As it stands under the District

Court’s Order of June 13, 1997 and the Eleventh Circuit’s

Opinion, Petitioners evidence of illegal activities under Title

VII was rejected because Petitioners have no recognized

claims, according to the Orders from the District Court,

affirmed by the Eleventh Circuit, under Title VII. Not

surprisingly, the District Court rejected Petitioners’ hostile

work environment claim finding that there were only a few

comments made about the Petitioners race. Plaintiffs do not

disagree with the finding by the trial court that there is little

evidence to support a hostile work environment claim if it is

-26-

based solely on the race. In this case, however, but for their

race, the Petitioners most likely would not have had PFB and

this makes their race and their beards inseparable. It was error

for the District Court and Eleventh Circuit Court of Appeals

to reject the evidence offered by the Petitioners in support of

their hostile environment claim because of the courts’ rejection

of their theory of the case.

The Petition should be granted so that the Court may

affirm the importance of its longstanding holdings of the scope

of Title VII and protections afforded to aggrieved persons

affected by adverse employment actions motivated by race and

affirm that the Petitioners, black males suffering from PFB, are

protected under Title VII.

I.

THE PETITION SHOULD BE GRANTED

BECAUSE THE OPINION BELOW

CONFLICTS WITH THE INTENDED

SCOPE OF 42 U.S.C. §12101 ET SEQ,, AS

A PROTECTION FOR PERSONS WITH

DISABILITIES SUCH AS THE

PETITIONERS

Petitioners bear the initial burden of demonstrating a

prima facie case of disability discrimination under the

Americans with Disabilities Act (ADA), codified at 42 U.S.C.

§12101 et seq. A prima facie case under the ADA requires a

showing of the following: (1) that the plaintiff is disabled

pursuant to the dictates of the ADA; (2) that with or without

reasonable accommodations he can perform the essential

functions of the position in question; and (3) that he has been

discriminated against because of his disability. Terrell v.

3

-27-

USAir, 132 F. 3d 621, 624 (1 1th Cir, 1998); Harris v. H & W

Contracting, Co., 102 F. 3d 516, 519 (11th Cir 1996); 42

U.S.C. §12132.

A qualified individual with a disability may establish

unlawful discrimination by showing that he was not provided

reasonable accommodation (unless the accommodation would

have posed an undue hardship on the employer) and/or that he

was subjected to an adverse personnel action because of his

disability. See e.g. Jackson v. Veterans Admin., 22 F. 3d 277

(11th Cir. 1994). In addition, the law recognizes harassment

as a form of discrimination when that harassment creates a

hostile work environment. See Harris v. Forklift Sys., Inc.,

510 U.S. 17, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993)

Plaintiffs have met their burden in all respects in

proving a prima facie case of discrimination on one or more of

these theories of liability as shown below. The District Court

and Eleventh Circuit, however, rejected Petitioners claim

under the ADA holding that they are not disabled under the

law. Petitioners claim that these holdings are error

The ADA prohibits employers from discriminating

“against a qualified individual with a disability because of the

disability of such individual in regard to application

procedures, the hiring, advancement, or discharge of

employees, employee compensation, job training, and other

terms, conditions, and privileges of employment.” 42 U.S.C.

§12112(a). Under the ADA, a "disability" is (1) a physical

or mental impairment that substantially limits one or more of

the major life activities of such individual; (b) a record of such

an impairment; or © being regarded as having such an

impairment. 42 U.S.C. §12102(2). The ADA does not define

such terms as "physical or mental impairment," "major life

-28-

activity,” or “substantially limits." Instead, these definitions

are found in the regulations Congress directed the EEOC to

issue to implement the statute. See 42 U.S.C. §12116

(providing EEOC with authority to issue implementing

regulations); 29 C.F.R. Pt. 1630, Appendix to Part 1630 --

Interpretive Guidance to Title I of the ADA.

Under the EEOC regulations, "physical impairment” is

defined as "any physiological disorder, or condition, cosmetic

disfigurement, or anatomical loss affecting one or more of the

following body systems: neurological, musculoskeletal, special

sense ofgans, respiratory, cardiovascular, reproductive,

digestive, genito-urinary, hemic and lymphatic, skin and

endocrine." 29 C.F.R. §1630.2(h)(1). "Major life activities"

include "caring for oneself, performing manual tasks, walking,

seeing, hearing, speaking, breathing, learning, and working."

29 C.F.R. §1614.203(a)(3). Ifa plaintiff's alleged impairment

does not substantially limit a major life activity, he is not

disabled and cannot recover under either the ADA. The

regulation further states:

"If an individual is not substantially limited with

respect to any other major life activity, the individual's

ability to perform the major life activity of working

should be considered. If an individual is substantially

limited in any other major life activity, no

determination should be made as to whether the

individual is substantially limited in working.” 29

C.F.R. §1630, App., §1630.2()).

« » *

With respect to the major life activity of working, the

term substantially limits means significantly restricted

-29-

in the ability to perform either a class of jobs or a

broad range of jobs in various classes as compared to

the average person having comparable training, skills

and abilities. The inability to perform a single,

particular job does not constitute a substantial

limitation in the major life activity of working. 29

C.F.R. §1630.2(J)(3).

It is not disputed in this case that the Petitioners are

restricted from being promoted within the Department of

Corrections. Thus, it cannot be disputed that they are unably

to perform one or more job classifications due to the fact that

they wear beards, worn because of their skin condition, PFB.

In a case similar to this case, Fitzpatrick v. City of

Atlanta, 2 F. 3d 1112 (11th Cir. 1993), the Eleventh Circuit

held that certain black male firefighters employed with the City

of Atlanta were protected under the Rehabilitation Act even

though the City of Atlanta was successful in proving there was

no reasonable accommodation by which the firefighters with

PFB would be able to perform their jobs safely without being

clean-shaven. This defense does not apply in this case and the

Eleventh Circuit had to reject an ADA analysis similar to the

analysis accepted in Fitzpatrick under the Rehabilitation Act

in order to find no liability in this case under the ADA.

The District Court and then the Eleventh Circuit Court

of Appeals erred in granting summary as to Plaintiff's ADA

claim and in rejecting the ruling of this Court in Fitzpatrick v.

City of Atlanta, 2 F. 3d 1112. Significantly, courts have

universally looked to Rehabilitation Act cases as a source of

guidance when construing the ADA. McKay v. Toyota Motor

Mfg. U.S.A., Inc., 110 F. 3d 369, 373 n. 1 (6th Cir 1997);

Duckett v. Dunlop Tire Corp.. 120 F. 3d 1222 (11th Cir,

-30-

1997). Because the Petitioners were restricted in performing

an entire class of positions within DOC and were restricted

from promotions of any type, their claims under the ADA

should have been recognized and accepted as valid.

In order te establish a prima facie case of disability

discrimination based on differential treatment, a plaintiff must

show that he is a member of a protected class and that the

defendant took adverse action against him in circumstances

that raise an inference of unlawful discrimination. See Rio v.

Runyon, 972 F. Supp. 1446, 1458 (S.D. Fla. 1997).

In this case, Petitioners are member of a protected

class because of their skin condition. Second, they have

brought forward evidence that raises an inference of unlawful

discrimination by showing that the Department failed to hire

them into upper level positions and/or fired Harris because of

a skin condition. They have also shown that the Department’s

upper level personnel denied Mr. Seaborn’s requests for

promotion because of his beard, worn because of his PFB.

As for proving that they were subjected to adverse

action, Mr. Harris was fired. Mr. Seaborn was refused

promotions and was consequently in a dead end position with

no prospect for advancement. These actions constitute

adverse employment action. 29 C.F.R. §1630.5 (forbidding

employers from limiting, segregating, or classifying an

employee “in a way that adversely affects his or her

employment opportunities);. see also Collins v. State of

[llingis, 830 F. 2d 692, 702-704 (7th Cir. 1987); see generally

Harris v. H & W Contracting Co., 102 F. 3d 516, 523-24

(1 Ith Cir. 1996)(discussing adverse employment action in the

ADA context).

-3]-

Because Petitioners fell within the group of persons

entitled to protection under the ADA, by rejecting the

Petitioner’s claims thereunder, the Court of Appeals denied

Petitioners a viable claim for relief from uplawful employment

practices,

CONCLUSION

This case presents several questions of exceptional

importance -- whether black litigants suffering from PFB are

entitled to protection under Title VII and/orthe ADA. In the

opinion of the District Court and Eleventh Circuit Court of

Appeals are allowed to stand, black males suffering from PFB

who are subjected to adverse employment action and

subjected to hostile work environments due to the fact that

they are forced to wear beards because of their skin conditions

will be prevented from maintaining a cause of action under

both Title VII and the ADA. By granting the Petition for

certiorari, however, this Court can correct the Eleventh

Circuit’s decision, which defies logic and defies not only this

Court’s established precedent but the intent of Title VII and

the ADA. Inso doing, this Court can also reaffirm the scope

of persons protected by these laws and reaffirm the important

role of these laws in effectuating race and disability

discrimination in the workplace.

23-

Accordingly, Mr. Seaborn and Mr. Harris respectfully

request that their petition for wnt of certiorari be granted.

Respectfully submitted,

Pe

Marie A. Mattox

MATTOX & HOOD, P.A.

310 East Bradford Road

Tallahassee, FL 32303-4804

(850) 383-4800

Scho E fof

spard E. Johrisdn —

“pos of Record

314 West Jefferson Street

Tallahassee, FL 32301

(850) 425-1997

ATTORNEYS FOR PETITIONERS

la

APPENDIX A

OPINION OF THE UNITED STATES COURT

OF APPEALS FOR THE ELEVENTH CIRCUIT

DATED FILED JUNE 16, 1998

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 97-2855

D. C. Docket No. 4:96cv168 MMP

CHARLES SEABORN,

ROBERT HARRIS,

Plaintiffs- Appellants,

versus

STATE OF FLORIDA,

DEPARTMENT OF CORRECTIONS,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Florida

(June 16, 1998)

2a

Before COX and BLACK, Circuit Judges, and RONEY,

Senior Circuit Judge.

BLACK. Circuit Judge:

Appellants Charles Seaborn and Robert Harris

brought this action against the State of Florida,

Department of Corrections (Florida), alleging they were

discriminated against in violation of the Americans with

Disabilities Act of 1990, 42 U.S.C. $$ 12101-12213

(ADA). The district court granted Florida’s motion for

summary judgment and Appellants filed this appeal.

Florida now asserts for the first time that it is entitled to

Eleventh Amendment sovereign immunity from

Appellants’ ADA claims.

I. BACKGROUND

Appellants are African-American males who

worked for Florida at the Tallahassee Community

Correctional Center (TCCC). Appellants have a skin

condition known as pseudo folliculitis barbae (PFB), which

causes lesions to form on the surface of their skin after

shaving. Appellants allege that the appropriate treatment

for PFB is simply to refrain from shaving and, therefore,

that they must wear beards as a matter of medical

necessity.

TCCC has a “No Beard Policy” requiring male

employees to be clean-shaven. This policy includes

medical exceptions under which TCCC permitted

3a

Appellants to wear beards. Appellants allege they

nevertheless were subjected to de facto workplace

discrimination and were denied promotions because they

wore beards. Appellants brought claims against Florida

pursuant to the ADA, asserting that PFB is a disability.

The district court granted Florida’s motion for summ

judgment, concluding that Appellants do not have a

disability within the meaning of the ADA because PFB

does not substantially limit Appellants’ ability to work.*

This appeal followed.

0. DISCUSSION

* Appellants also brought claims alleging

they were discriminated against on the basis of race

in violation of Title VII, 42 U.S.C. $§ 2000e to

2000e-17. Florida filed a motion for summary

judgment on all claims. In its order dismissing the

ADA claims, the district court reserved judgment

on the Title VII claims and instructed Appellants’

counsel to clarify the theory of Title VII liability

and to specify the record evidence demonstratin g

a genuine issue of material fact. After further

briefing, the district court dismissed the Title VII

claims, ruling that Appellants had not stated a

prima facie case of discrimination under any theory

of Title VII liability. Appellants appeal the district

court’s order dismissing the Title VII claims. We

affirm the dismissal of the Title VII claims on the

basis of the well-reasoned district court opinion.

4a

Florida asserts for the first time on appeal that it is

entitled to Eleventh Amendment immunity from

Appellants’ ADA claims. An assertion of Eleventh

Amendment immunity essentially challenges a court's

subject matter jurisdiction: “The Eleventh Amendment

restricts the judicial power under Article II, and Article

I cannot be used to circumvent the constitutional

limitations placed on federal jurisdiction.” Semsnole Tribe

v. Flonda, 517 U.S. 44, 72-73, 116 S. Cr. 1114, 1131-32

(1996). Eleventh Amendment immunity therefore may

be asserted for the first time on appeal. Smith v. Avino, 91

F.3d 105, 107 (11th Cir. 1996)-(citations omitted),

abrogated on other grounds by Steel Co. v. Citizens for a Better

Env’t. U.S...

118 S. Cr. 1003 (1998). Furthermore, an assertion of

Eleventh Amendment immunity must be resolved before

a court may address the merits of the underlying claim(s).

See Steel, U.S. at _, 118 S. Ct. at 1012-16.”

. Despite the jurisdictional nature of

the Eleventh Amendment, prior to Steed this Court

held that an assertion of sovereign immunity could

be ignored where the resolution of the merits of a

claim would favor the party asserting sovereign

immunity:

Though it is the usual practice to

resolve subject matter jurisdictional

issues before reaching the merits, it

is permissible for the Court to

bypass jurisdictional questions and

5a

Florida is entitled to Eleventh Amendment

immunity unless Congress has abrogated that immunity.

“In order to determine whether Congress has abrogated

the States’ sovereign immunity, we ask two questions:

first, whether Congress has unequivocally expressed its

intent to abrogate the immunity; and second, whether

Congress has acted pursuant to a valid exercise of povver.”

Seminole Tribe, 517 U.S. at 55, 116 S. Cr. at 1123.

Congress has unequivocally expressed its intent for the

ADA to abrogate sovereign immunity. 42 U.S.C. §

12202. Therefore, our analysis will focus on the second

question set forth in Seminole Tribe.

decide the case on the merits when

the jurisdictional issue is difficulr,

the law is not well-established, and

a decision on the merits favors the

party who has raised the

jurisdictional bar.

Smith, 91 F.3d at 108. This practice was referred

to as “hypothetical jurisdiction,” whereby the court

hypothetically assumed jurisdiction over a case and

then dismissed the case on the merits. The

Supreme Court squarely rejected the doctrine of

_ hypothetical jurisdiction in Steel and instructed

that a challenge to Article I subject matter

jurisdiction must be resolved before a court may

address the merits of the underlying claim in any

. Manner. Steel, U.S. at_, 118 S. Ct. at 1012-16.

Oa

In Kimel v. State Ba. of Regents, 139 F.3d 1426.

1433 (11th Cir. 1998), a panel of this Court held that the

ADA is a valid exercise of the Enforcement Clause of the

Fourteenth Amendment and concluded that the States do

not have Eleventh Amendment immunity from claims

brought under the ADA. Id. We arc bound by the

decision of the Kimel panel unless that decision is

overruled by the Supreme Court or by this Court sitting

en banc. United States v. Woodward, 938 F.2d 1255, 1258

(11th Cir. 1991).

Having resolved the Eleventh Amendment issue

against Florida, we may now address the merits of

Appellants’ ADA claims. We affirm the dismissal of

Appellants’ ADA claims on the basis of the well-reasoned

district court opinion.

AFFIRMED.

lb

APPENDIX B

OPINION OF THE UNITED STATES

DISTRICT COURT FOR THE

NORTHERN DISTRICT OF

FLORIDA AT TALLAHASSEE,

FLORIDA.

DECIDED FEBRUARY 11, 1997

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

CHARLES SEABORN,

and ROBERT HARRIS,

Plaintiffs,

v. CASE NO. 4:96cv168-MP

STATE OF FLORIDA,

DEPARTMENT OF CORRECTIONS,

Defendant.

/

ORDE

This matter is before the Court on Defendant's

Motion for Summary Judgment (doc. 49). Plaintiffs filed

26

a response thereto (doc. 61). For the reasons explained

below, the motion is GRANTED IN PART; the

remainder is HELD IN ABEYANCE pending further

submissions to the Court in accordance with this order.

BACKGROUND:

Plaintiff Seaborn and Plaintiff Harris are bearded

men who worked for Defendant State of Florida,

Department of Corrections (“DOC”), at the Tallahassee

Community Correctional Center (“T'CCC”) during the

late 1980s and early 1990s. Plaintiff Seaborn worked at

TCCC from May 1989 until July 1993, at which point he

was transferred to another institution within the Florida

prison system. Plaintiff Harris worked at TCCC from

May 1987 until his termination in October of 1993.

Throughout PlainafPs employment, TCCC

maintained an employment policy which required

correctional employees to come to work sams facial hair.

See § 33-4.002 (4) (d), Fla. Admin. Code (“The face [of

a male employee] will be clean-shaven other than the

wearing of an acceptable moustache or sideburns. Beards

and goatees are prohibited.”). The DOC’s policy,

however, allowed for medical exceptions to the no-beard

rule. See id. at (g) (“The only exception to the grooming

policy shall be based on medical need. *** Facial hair in

cases of exemption shall be neatly trimmed to 1/8 inch.”)

ae i il ne ee ee ee eee a

3b

Both of the plaintiffs in this action suffer from a

skin abnormality known as pseudo folliculitis barbae’

(“PFB”). See Affidavit of Plaintiff; Charles Seaborn (Doc.

62, Exhibit A) (“Seaborn Affidavit”) at 13; Affidavit of

Plaintiff; Robert Harris (Doc. 62, Exhibit B) (“Harris

Affidavit”) at 13. Based on this medical condition, both

were advised by their physicians that they should not

shave. Seaborn Affidavit at 14; Harns Affidavit at 14.

Each plaintiff produced medical documentation which

indicated that he fell within the medical exception to the

no-beard policy’, and each was thereafter permitted by

This condition is described as “a

bacterial disorder, usually caused by Staphylococcus

aureus, occurring chiefly in the beard of blacks,

especially in the submandibular region of the neck,

the characteristic lesions being erythematous

papules, sometimes pustules, containing buried

hairs whose tips can easily be freed up; in contrast

to sycosis barbae, which is most often seen in

bearded men, pseudo folliculitis affects exclusively

those who shave.” DORLAND’S

ILLUSTRATED MEDICAL DICTIONARY

1378 (27th ed. 1988)

. Plaintiffs state that “treatment [for

PFB] consists predominantly of refraining from

shaving; therefore, as a result of my condition, I

am unable to shave.” Seaborn Affidavit at 13; see,

also, Harris Affidavit at 13.

4b

Defendant to come to work with a so-called “shadow”

beard.

Notwithstanding the medical documentation of

their PFB conditions, and notwithstanding Defendants

subsequent exemption of Plaintiffs from the shaving

policy, Plainaffs claim that they were discriminated

against at work because they wore beards. As they have

phrased it in their affidavits, once they began showing up

for work without shaving, they were “treated differently

from and disparately in relation to...[their] co-workers.”

Seaborn Affidavit at 14; sec Harns Affidavit at 144.

Specifically, the Plaintiffs explain that each was told -- on

separate occasions -- by his supervisors that he was not

“supervisory material,” and hence would never be

promoted, as long as he had a beard. Seaborn Affidavit at

910 (S); Harns Affidavit at 16.

This complaint, of course, is not based on

Plaintiffs’ allegations of invidious “beard-ism”. Rather,

the case is more complex and more subtle than that.

Plaintiffs are both African Americans -- African

Americans diagnosed with PFB. As Plaintiffs have stated

in their affidavits, PFB is “common and exclusive to black

males.” Seaborn Affidavit at 13; Harris Affidavit at 13.° As

: Though Plaintiffs have come

forward with no expert medical testimony to

augment either of their bare assertions (i.¢., that

56

PEB is “common” among African Americans, and

that PFB is “exclusive to black males”) the Court --

for purposes of this motion -- takes judicial notice

of these medical realities. It is appropriate for this

Court to do so because these facts are not subject

to reasonable dispute and they are capable of

accurate and ready determination by resort to

sources, such as the medical dictionary cited at

foomote one, whose accuracy cannot reasonably be

questioned. See Fed.R.Evid. 201(b) (2); Harris v.

H&W Contracting Co., 102 F.3d 516, 522 (11th

Cir. 1996) (taking judicial notice of fact that

Graves’ disease is a condition that has capability of

substantially limiting major life activities).

In addition, other federal courts --

including the Eleventh Circuit Court of Appeals --

who have published opinions pertaining to PFB

have recognized that the disease is common, see

Richardson _v. Quik Trip Corp., 591 F. Supp.

1151, 1155 (S.D. Iowa 1984) (noting that

between 45 and 83 percent of all black males suffer

from PFB), and EEOC v. Trailways, Inc., 530 F.

Supp. 54, 56 (D. Colo. 1981) (quoting scientific

_ evidence showing that 50 percent of all black males

suffer from PFB), and showing that it affects black

men almost exclusively, see id. (quoting expert

witness who testified that he has “never seen a

. severe case of PFB in anyone other than a black

6b

a result of their PFB, the plaintiffs are unable to shave.

Plaintiffs allege that their beards are thus worn as the

direct result of a “medical condition,” see Seaborn Affidavit

at 13 and Harms Affidavit at 13 -- or, as they have

alternatively described it, a “disability (PFB)”. Seaborn

Affidavit at 15; Harns Affidavit at 15. Their complaint

concludes, therefore, that what may otherwise be viewed

merely as non-actionable “beard-ism” is, under the facts of

this case, discrimination on the basis of a disability in

violation of the Americans with Disabilities Act (“ADA”),

42 U.S.C. § 12101, et seg. Moreover, due to the fact that

PFB is a medical condition which disproportionately

affects African Americans, Plaintiffs further conclude that

the adverse employment actions to which they have been

subjected amount to discriminatory treatment on the basis

of race in violation of Title VIL, 42 U.S.C. § 20006, et seq.

ANALYSIS:

In its motion, Defendant moves for summary

judgment on all of Plaintiffs’ clams. Thus, Defendant

argues that it is entitled to summary judgment on the

portions of Plaintiffs’ complaint brought pursuant to the

ADA, as well as those portions brought under Title VII.

The Court will analyze each of these arguments in turn.

[man]”). See, also, Fitzpatrick v. City of Atlanta,

2 F.3d 1112, 1114 (11th Cir. 1993) (“It is

generally recognized that PFB disproportionately

afflicts African-American men.”).

8 Sent Ezeh

7b

(a) Summary Judgment Standard

Summary judgment is appropriate only “if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact

and that the moving party is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56 (c); see Southern

Solvents, Inc. v. New Hampshire Ins. Co., 91 F.3d 102,

104 (11th Cir. 1996). The Court must grant a motion

for summary judgment unless the party opposing the

motion produces evidence from which a “fair minded jury

could return a verdict” in its favor. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242 (1986).

The moving party bears the burden of showing

that no genuine issue of material fact exists. Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986); Southern

Solvents, Inc., 91 F.3d at 104. Rule 56 (e) requires the

non-moving party to go beyond the allegations raised in

the pleadings; by affidavits, deposition testimony, and the

like, the non-moving party must designate specific facts

showing that there is a genuine issue for trial. Fed. R.

Civ. P. 56 (e); Celotex, 477 U.S. at 324. Because the

movant bears the burden of proof, however, the district

court typically resolves all reasonable doubts about facts

in favor of the non-movant and draws all justifiable

inferences from the underlying facts in the non-movant’s

favor. McCabe v. Sharrett, 12 F.3d 1558, 1560 (11th

Cir. 1994); Anderson, 477 U.S. at 255.

8b

(b) The Americans with Disabilities Act

As a panel of the Eleventh Circuit Court of

Appeals has recently observed, Congress enacted the ADA

to provide a clear and comprehensive national mandate for

the elimination of discrimination against individuals with

disabilities. Harris, 102 F.3d at 519 (quoting 42

U.S.C.A. § 12101 (b) (1)). While the Act should

therefore be broadly construed to protect persons with

disabilities, Kornblau vy. Dade County, 86 F.3d 193, 194

(11th Cir. 1996), it should not be viewed as a means of

giving disabled persons an unfair advantage over non-

disabled persons, id., nor should its mandate be garbled

and strained in an effort to create legal entitlements for

individuals who are not truly “disabled”. See Patrick v.

Southern Co. Services, 910 F. Supp. 566, 567 (N.D.Ala.

1996) (observing that the “initial story of the ADA has

been the attempt of persons to stretch the intent of the

ADA with regard to alieged disabilities”), affirmed 103

F.3d 149 (11th Cir, 1996) (table decision). Establishing

that one is disabled is therefore the cornerstone to an

ADA plainufPs prima facie case. Fussell v. Georgia Ports

Authority, 906 F. Supp. 1561, 1567 (S.D.Ga. 1995),

affirmed -- F.3d -- (11th Cir. 1997) (unpublished table

decision).

In order to state a prima facie case of disability

discrimination under the ADA, Plaintiffs must

9b

demonstrate that: (1) they have a “disability”; (2) their

employer had either actual or constructive knowledge of

that “disability”; (3) they were qualified for the position

that was denied to them; and (4) they were subjected to

unlawful discrimination as a result of their “disability”.

Gordon v. Hamm & Associates, Inc., 100 F.3d 907, 910

(11th Cir. 1996); Morisky v. Broward County, 80 F.3d

445, 447 (11th Cir. 1996). Because Plaintiffs are unable

to show that they are “disabled” under the definition

which this Court must apply to their ADA claim, they

therefore have failed to state a prima facie case under the

statute; Defendant is thus entitled to summary judgment.

In the ADA, Congress has defined “disability” as

either: (1) a physical or mental impairment that

substantially limits the major life activities of an

individual; (2) a record of such an impairment; or (3)

being regarded as having such impairment. 42 U.S.C. §

12102 (2); Pritchard v. Southern Co. Services, 92 F.3d

1130, 1132 (11th Cir.), amended in part by 102 F.3d

1118 (11th Cir. 1996). The text of the ADA, however,

does not define “impairment”; thus, this Court looks to

regulations promulgated by the Equal Employment

Opportunity Commission for the definition of that term.

See 42 U.S.C. § 12116 (authorizing EEOC to issue

implementing regulations for the ADA).

: The term “disability” is placed in

quotes here to denote that it is a legal term of art

. with a precise definition under the ADA.

106

Under the EEOC regulations, the definition of

“physical impairment” includes “[a]ny physiological

disorder or condition, or cosmetic disfigurement . . .

affecting. . . [the] skin. . ..” 29 C.F.R. § 1630.2 (h) (1).

The Court therefore finds -- and the parties are in accord

-- that the Plaintiffs’ PFB constitutes a physical

impairment for purposes of the ADA.

A physical impairment, standing alone, however,

is not necessarily a “disability” as contemplated by the

ADA. Gordon, 100 F.3d at 911. That is because the

ADA indicates that for an impairment to constitute a

qualifying “disability” under the statute, the impairment

must “substantially limit one or more of the major life

activities” of the plaintiff. 42 U.S.C. § 12102 (2) (A).

The determination of whether an individual has a

disability is not necessarily based on the name or diagnosis

of the impairment that the person has; rather, it is based

on the specific effect of that impairment on the

individual’s life. Pritchard, 92 F.3d at 1332 n.3 (quoting

29 C.F.R. § 1630.2(j) (App.)). To determine that

specific effect, the Court must explore whether the

plainafPs alleged impairment affects a “major life activity,”

and whether it causes a “substantial limitation” on the

~ PplaintifPs ability to engage in that activity. See, e.g.,

Freund v. Lockheed Missiles and Space Co., Inc., 930

F.Supp. 613, 617 (S.D.Ga. 1996). For a “mere

degradation” in the plaintifPs ability to perform a major

life activity does not transform a simple impairment into

an ADA-qualifying disability, id.; instead, in order to

a

A

of

=

llé

trigger application of the ADA, asuéstantial limitation on

the activity must come as a direct result of the plaintiffs

impairment.

For purposes of the statute, “major life activities”

include “functions such as caring for oneself, performing

manual tasks, walking, seeing, hearing, breathing, learning

and working.” 29 C.F.R. $ 1630.2(I). If the Plaintiffs’

alleged impairment cannot be said to affect one of these

delineated activities, or an analogous activity, the Plaintiffs

are not “disabled” and thus cannot recover under the

ADA. See Desai v. Tire Kingdom, Inc., 944 F.Supp.

876, 879 (M.D.Fla. 1966).

It is Plaintiffs’ contention that their PFB condition

hinders their ability to participate in the major life activity

of working.® See Plaintiffs, Charles Seaborn’s and Robert

Harms’, Response in Opposition to Motwn for Summary

Judgment (doc. 61) at 5-6. As their attorney frames the

argument:

5

Plaintiffs make no argument that

PFB prevents them from caring for themselves,

performing manual tasks, walking, seeing, hearing,

_ breathing, or learning. Thus, their ADA cause of

action rests exclusively on a claim that PFB

precludes their participation in the major life

activity of working.

12b

In this case, if Plaintiffs worked someplace

other than the Department of Corrections, they

may not be considered disabled. But, because of

the no beard policy and the fact that the persons in

control of the facilities where Plaintiffs worked

disfavored beards and more or less “held them

against” the black males with beards, because of

their medical condition, they were not able to

engage in one of life’s major activities, 1.¢.,

continuation of gainful and _ productive

employment which necessarily includes

promotions.

Id. Unfortunately for her clients, this position which

Plaintiffs’ counsel advances is uninformed and without

basis in ADA jurisprudence.

The inability to perform a single, particular job

does not constitute a substantial limitation in the major

life activity of working. 29 C.F.R. § 1630 2 (j) (3);

Pritchard, 92 F.3d at 1133. To demonstrate that an

impairment “substantially limits” the major life activity of

working, an individual must show significant restrictions

in the ability to perform either a class of jobs or a broad

range of jobs in various classes. 29 C.F.R. § 1630.2 (j)

(3); Gordon, 100 F.3d at 912 (emphasis added).

Here, Plaintiffs’ disability argument is entirely

dependent on the interaction between their impairment --

136

PFB -- and a specific employment policy which exists at

the DOC. Plaintiffs are not physically impaired from

performing any tasks which they have been asked to

accomplish at work.° In fact, Plaintiffs testified at

deposition that PFB does not interfere with their work at

TCCCG, or limit their activities at that facility, in any way.

Deposition of Charles Seaborn at 129; Deposition of Robert

Harns at 75-77. Hence, Plaintiffs’ own admissions

indicate that they are not “disabled” individuals entitled to

the protection of the ADA. See Weaver v. Florida Power

& Light, 1996 WL 479117, *5 (S.D.Fla. 1996).

Moreover, there is nothing in the record to

indicate that PFB restricted Plaintiffs’ job or advancement

opportunities with other employers in the greater

Tallahassee geographic area. Such a showing must be

made by one who brings an ADA claim based on a

limitation on his ability to work. See 29 C.F.R. 1630 (j)

(3) (ii).

What 1s indicated by this record is that Plaintiffs

merely cannot work for a particular defendant, in a

particular position. That is not enough to get Plaintiffs’

. Plaintiffs are, of course, unable to

- shave their faces. Shaving one’s face, however,

does not amount to a major life activity. Cf, 29

C.F.R. § 1630.2 (j) (3).

146

ADA cause of action before a jury. Patrick, 910 F.Supp.

at 569-70. To establish a disability under the ADA, a

plaintiff must demonstrate that he has an impairment that

substantially limits employment generally. Id. Plaintiffs

have not made that demonstration here.

Judge Propst has written that it is axiomatic that

before a plaintiff can maintain an ADA claim he must

offer substantial evidence that he is disabled. Id. This, of

course, is a plainly tautological commentary on the

statute; namely, only an individual with a disability can

successfully sue under the Americans with Disabilities Act.

For that reason, one might therefore suppose that Judge

Propst’s insight is unnecessary. Surprisingly, it is not.

This case, like a great many of the reported ADA

cases, exemplifies that plaintiffs who attempt to invoke the

ADA often muscharacterize their particular physical

impairments as qualifying “disabilities”. Unfortunately

for Plaintiffs, “disability” is a term of art under the act,

and it is a term whose statutory definition does not

stretch so far as to encompass the impairment affecting

Plaintiffs’ skin. While they may (or, for that matter, may

not) consider themselves disabled as the term is frequently

used, Congress enacted a statute which offers narrower

relief to a more seriously deprived class of persons. See

Quinley v. State Farm Ins. Corp., 1996 WL 544258, *8

(S.D.Ala. 1996). Hence, while Plaintiffs may well have a

physical impairment, they have not persuaded this Court

156

that the impairment substantially limited their ability to

work. Ergo, they are not “disabled”. See Gordon, 100

F.3d at 912.’

. While the decision would seem to

run counter to some language in Fitzpatrick v.

City of Atlanta, 2 F.3d 1112 (11th Cir. 1993), the

dicta included therein concerning the major life

activity of “working” is not binding authority on

the Court in respect to this ADA cause of action.

First, Fitzpatrick was a Rehabilitation Act case.

Additionally, insofar as a panel of the Eleventh

Circuit Court of Appeals there observed that PFB

“would seem to qualify” as a “handicap” under the

Rehabilitation Act, id. at 1126, that observation

was not part of the holding of the case. See id.

(“Although it appears probable that the district

court erred insofar as it indicated that the

firefighters do not qualify as ‘handicapped

individual[s]’ under 29 U.S.C. $706 (8) (B) (I), #

is not necessary for us to rule on that issue”) (emphasis

added). Moreover, the Fitzpatrick panel’s dicta has

been criticized as incorrect -- and counter to the

plain language of the Rehabilitation Act -- by at

least one other circuit court. Gupton_v.

~ Commonwealth of Virginia, 14 F.3d 203, 205 n.3

(4th Cir.), cert. denied, 115 S. Cr. 59 (1994).

Finally, and most importantly, all of the Eleventh

—————————————

166

Defendant's motion for summary judgment on Plaintiffs’

ADA claims is therefore GRANTED.

(c) Title VII

Title VI prohibits workplace discrimination on

the basis of any on of the five specifically-enumerated

characteristics which are listed in the statute: race, color,

religion, sex, and national origin. 42 U.S.C. § 2000e-2

(a) (2). While discrimination on the basis of race, color,

religion, sex and/or national origin is prohibited by Title

VIL, the statute does not prohibit discrimination on other

bases. See Nix y. WLCY Radio/Rahall Communications,

747 F.2d 710 (11th Cir. 1984) (“The employer may fire

an employee for a good reason, a bad reason, a reason

based on erroneous facts, or for no reason at all, as long

as its action is not for a discriminatory reason.”). Hence,

it 1s important to remember that Title VII protects

workers against specific forms of discrimination, and not

against general unfairness; for the civil rights laws were

Circuit ADA cases which have been released after

the publication of Fitzpatrick (and which have

been previously discussed in this order) indicate

that to the extent that Fitzpatrick is deemed good

law for Rehabilitation Act purposes, its rationale

should nevertheless be treated as inapplicable to

ADA cases.

176

not meant to eliminate the principle of at-will

employment for members of protected classes, nor do

they require employers to show good cause for every

decision involving a member of a protected class. Evans

v. McClain of Georgia, Inc., 934 F. Supp. 1383, 1389-90

(M.D.Ga. 1996).

Here, the Court finds that the record is full of

deposition and affidavit testimony from individuals who

make the allegation that Plaintiffs were the victims of

workplace discrimination. The majority of these

deponents and affiants go so far as to use the term “race”

when describing the basis of alleged discrimination.

However, without fail, each of the deponents/affiants has

testified that the alleged discrimination to which Plaintiffs

were subjected was the result not of racial animus

standing alone; rather, they seem to state that it was the

result of a combination of Plaintiffs’ race and the fact that

they wore beards in a setting where beards were not worn

by anyone else. See, e.g., Affidavit of Rusty Dorris (Doc.

62, Exhibit E) at 2 (“In my opinion, and based on my

observations in the workplace, there was no reason for

these negative comments other than the fact that Major

Clark resented Mr. Harris’s and Mr. Seaborn’s beards

and/or their race.”); Affidavit of Arthur Johnson (Doc. 62,

Exhibit F) at 1 (“It was and is my opinion that Mr. Harris

and Mr. Seaborn were singled out by Major Clark and his

command staff to be subjected to harassment,

186

intimidation, and retaliation because of their race and

their beards.”).

Specifically, the record indicates that Plaintiffs’

claims of discrimination are race-based only insofar as the

beards which they wore on their faces were a product of

their race.* During his deposition, for example, Plaintiff

Seaborn explained his understanding of why he was never

promoted to the rank of sergeant while working at

TCCC; the answer was not a simplistic one, such as “I

was not promoted because I am black.” Instead of

responding that he was a victim of what can be termed

“pure” race discrimination, Plaintiff said this:

° The concession that this case is not

one involving “pure” race discrimination (i.c.,

discrimination based solely on the color of

Plaintiffs’ skin) is demonstrated clearly by the fact

that two of the four positions which Plaintiff

Harris desired but did not receive were filled by

African-American applicants. Deposition of Robert

Harns, Volume IT (“Harris Deposition”) (doc. 55)

at 155. Hence, it makes no sense to conclude that

Harris’ race served as a per se bar to promotion at

TCCC; other black employees (albeit dean-shaven

black employees) did receive the promotions that

Plaintiffs allegedly could not receive.

rs

bali

sil SETAE Bane

196

I guess along with me being black, I have a

disability, and they don’t want to promote.

I am black, with a disability. I am not just

black. 1 am black, with a disability.

Deposition of Charles Seaborn, Jr. (doc. 53) (“Seaborn

Deposition”) at 91 (emphasis added).”

In his deposition, Plaintiff Harris’ testimony

manifested the same belief -- namely, that he was

discriminated against not on the basis of race alone, but

rather on the basis of his race and his facial hair. See

Harnis Deposition at 106 (indicating his belief that he was

discriminated against due to a “combination of both” his

“race” and “disability”). As he described it, he was held

back because “this was a good old boy situation and

beards in DOC just don’t cut it,” Jd. at 118, not because

he was black employee, per se.

% The so-called “disability” to which he

refers, of course, is PFB -- the condition that

required him to grow a beard. See id. at 73

(“Because that was the issue. Being black and

_ having a beard was the issue. I was not allowed to

do this because I was black and I had a beard.

That is the issue. And my counterpart is white,

with no beard. That is the issue.”).

206

Both of the plaintiffs testified in their deposition

that they were told -- in straightforward, explicit terms --

by supervisors at TCCC that they would never be

promoted as long as they had beards on their faces.

Seaborn Deposition at 50 (“I remember Major Clark telling

me on an occasion that -- and I want to make this clear, he

told me this several times -- that I would never, ever get

a promotion in the Department of Corrections with a

beard on my face. Never.”); Id. at 60, lines 8 through 18;

Id. at 64 (“[Sergeant Durden said]: ‘You could probably

be major or something if you shaved your beard off.”);

Id. at 65, lines 13 through 16; Id. at 69, lines 22 through

24; Harns Deposition at 117 (“[Major Clark called] me

into his office and [told] me, because of my medical

exemption, that I will never make a promotion while at

DOC with a beard.”); Id. at 121, lines 11 through 18.

Additionally, Plaintiff Harris testified at deposition that he

was told flat-out by Major Clark that his personnel record

would be cleared of its blemishes if he would just shave

off his beard:

He called me into his office at one time.

He said, “I have a proposition for you. Do

you want to step in here?”

So, I went in, and I said: “Okay. What is it?”

He said: “What if I agree to take all

disciplinary actions out of your file in

216

return for you to shave that beard, so that

I won't be the laughingstock of the region

and the

Department?”* **

All he wanted to do was make sure that no

one would tease him or laugh at him for

having a black officer with a beard workin g

at his institution.

Harns Deposition at 124, 126.

Based on the foregoing, the Court finds that there

is much testimonial support in the record to undergird a

conclusion that the plaintiffs were victims of “beard-ism,”

not racism. And, of course, Title VII offers no protection

to one who is the victim of “beard-ist” employment

practices. However, accepting that as true, it is not clear

that summary judgment would be a permissible

disposition of Plaintiffs’ Title VII claims under the facts of

this particular case, due to the previously-discussed (and

contested) correlation between Plaintiffs’ beards, their

PFB impairment, and their race.!° Therefore, under the

ps Moreover, the Court is aware that

there is additional testimony in the record which

suggests race-based discrimination unrelated to the

“beard-ism” explained above.

226

facts of this case, discrimination on the basis of Plaintiffs’

beards may (but may not) be characterized as an

outgrowth of, and hence inseparable from, racial

discrimination.

Unfortunately, the pleadings which have been filed

in this matter are inadequate’ and, accordingly, this

Court cannot enter an informed legal ruling on

Defendants motion for summary judgment (doc. 49) as

that motion relates to Plaintiffs’ claims pursuant to Title

VU. The fundamental flaw is that Plaintiffs’ amended

complaint was drafted in such a haphazard and cursory

manner that it is impossible -- without engaging in

judicial speculation -- to determine what specific type(s)

of Title VII claim(s) the Plaintiffs have attempted to raise

in this lawsuit.’ And because the Court cannot

ll

In particular, the Court here refers

to Plaintiffs’ Amended Cornplaint (doc. 24) and

Plaintiffs’ response to opposition to Defendant's

motion for summary judgment (doc. 61).

12

In other words, it is unclear whether

Plaintiffs attempt to state a claim for disparate

treatment racial discrimination in the failure to

promote context; and/or disparate impact racial

discrimination in the failure to promote context;

and/or hostile work environment racial

harassment.

236

determine what kind of claim has been raised, it is

therefore impossible to determine whether Plaintiff has

successfully stated a valid claim such that summary

judgment should be denied.

Asa result, counsel for Plaintiffs is hereby directed

to file an additional memorandum of law in opposition to

Defendant’s motion for summary judgment. In this

memorandum, counsel shall exclusively (and extensively)

discuss the specific theories of her clients’ Title VI

cause(s) of action. In specific, she shall first explain

whether this is meant to be a disparate treatment case, a

disparate impact case, a hostile work environment case, or

any combination thereof. Second, she shall then state the

controlling law from this circuit on each of the Title VI

race discrimination causes of action which her clients

bring against Defendant, including a discussion of the

prima facie elements for each brand of Title VII claim.

Third, she shall lay out -- with appropriate quotations

from the affidavits and depositions which are part of the

record -- each and every fact which supports her position

that Plaintiffs are able to survive summary judgment on

their Title VII cause(s) of action.

Plaintiffs’ supplemental memorandum shall be

served on opposing counsel when completed, and shall be

filed with this court no later that February 28, 1997.

After reviewing Plaintiffs’ filing, counsel for Defendant

4b

shall file a responsive memorandum of her own. That

response shall be filed no later than March 17, 1997.

After the Court receives the additional pleadings,

it will enter a ruling on the remaining portion of

Defendants motion for summary judgment.

It is hereby

ORDERED AND ADJUDGED:

(1) Defendants Motion for Summary

Judgment (doc. 49) is GRANTED IN PART.

(2) Defendant State of Florida, Department of

Corrections is DISMISSED WITH PREJUDICE from

the complaint insofar as it attempts to state a claim against

Defendant pursuant to the Americans with Disabilities

Act, 42 U.S.C. § 12101, et seg.

(3) | Defendant's motion for summary judgment

on the Title VII portion of Plaintiffs’ complaint (doc. 49)

shall be HELD IN ABEYANCE.

(4) Counsel for Plaintiffs shall file a

supplemental memorandum of law in compliance with the

dictates laid out in this order; said memorandum shall be

filed with the Clerk’s office in Tallahassee no later than

5:00 p.m. on Friday, February 28, 1997.

a

bf

+

3

onthe

256

(5) Counsel for Defendant shall file a response

to Plaintiffs’ memorandum; said response shall be filed

with the Clerk’s office in Tallahassee no later than 5:00

p.m. on Monday, March 17, 1997.

(6) The Clerk is directed to REFER this file

back to the Court upon receipt of Defendant's response to

PlaintifPs supplemental memorandum.

(7) After the Court receives copies of Plaintiffs’

supplemental memorandum and Defendant’s response,

the Court will enter a ruling on the remaining issues of

law arising out of Defendant’s motion for summary

judgment.

(8) Inthe meantime, this cause is set for trial by

jury during the trial rerm beginning on Monday, April 21,

1997 at the United States Courthouse in Tallahassee,

Florida. The April 21st trial date shall not be continued

as a result of the matters discussed in this order.

(9) An attorney’s conference shall be held at

9:00 a.m. on Monday, April 21, 1997. Jury selection

shall commence immediately thereafter.

(10) During jury selection, eight (8) jurors will

be selected for the trial of this cause; each side shall be

given three (3) peremptory challenges.

266

(11) The parties have indicated their desire to

send this matter to mediation if portions of the cause

remain in the aftermath of Defendants summary

judgment motion. The Court hereby accepts the

invitation and REFERS THE CASE TO MEDIATION,

at a time and place, and before a mediator of, the partics’

own choosing.

(12) The Court suggests that the parties act now

to schedule a mediation for the week of April 7, 1997; it

is anticipated that a ruling on the remaining portions of

Defendants motion for summary judgment will be

entered prior to that date.

(13) Mediation shall be completed by Monday,

April 14, 1997. The mediator shall file with this Court a

written report of mediation no later than Friday, April 18,

1997,

(14) If all issues are not resolved by either the

motion for summary judgment or by mediation, the

parties shall file written proposed jury instructions no

later than Monday, April 21, 1997.

276

DONE AND ORDERED this llth day of

February, 1997.

S/ Maurice M. Paul

MAURICE M. PAUL,

CHIEF DISTRICT JUDGE

le

APPENDIX C

OPINION OF THE UNITED STATES

DISTRICT COURT FOR THE

NORTHERN DISTRICT OF

FLORIDA AT TALLAHASSEE,

FLORIDA DECIDED JUNE 13, 1997.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FI RIDA

TALLAHASSEE DIVISION

CHARLES SEABORN

and ROBERT HARRIS.

Plaintiffs,

v. CASE NO. 4:96cv168-MP

STATE OF FLORIDA,

DEPARTMENT OF CORRECTIONS.

Defendant,

ena ad RR

ORDER

This matter is before the Court sua sponte. On

February 11, 1997, this Court entered an Order (doc. 68)

granting Defendant’s motion for summary judgment on

a

v7

the Americans with Disabilities Act portions of Plaintuffs’

complaint. The order further indicated that Defendants

motion for summary judgment on the Title VII race

discrimination portions thereof would be held in

abeyance, pending the Court’s consideration of additional

pleadings which the order directed the parties to file. In

conformity with the order, Plaintiffs filed a pleading titled

“Plaintiffs, Charles Seaborn’s and Robert Harris’,

Response to Order of February 11, 1997" (doc. 70).

Defendant, in turn, filed a separate pleading styled

“Defendant's Response to Plaintiffs Response to Order

of February 11, 1997" (doc. 71). After reviewing these

additional submissions carefully, and in conjunction with

the entire record in this cause, the Court finds that the

remaining portion of Defendant’s motion for summary

judgment must be GRANTED.

INTRODUCTION

In the aforementioned order (doc. 68) dated

February 11, 1997, this Court was very specific about

why the parties were asked to file additional pleadings on

the Title VII portions of Piaintiffs’ complaint: counsel for

the plaintiffs was informed that it was impossible to

determine what specific type of Title VII race

discrimination claim was stated in the amended complaint.

Hence, counsel was told to file an additional

memorandum of law. Specifically, that memorandum of

3e

law was to include: (1) a description of whether this

matter was meant to state a disparate treatment claim, a

disparate impact claim, and/or a hostile environment

claim; (2) an explanation of controlling Eleventh Circuit

law on each of those Title VII causes of action; and (3) a

description of “each and every fact which supports [the]

position that Plaintiffs are able to survive summary

judgment” on those causes of action, “with appropriate

quotations from the affidavits and depositions which are

part of the record.”' Order dated February 11, 1997 (doc.

68) at 18.

’ As the attorneys know, the directive

to include precise quotations from, and citation to,

the record is based on the local rules of this court.

See N.D.Fla.Loc.R. 56.1(A) (requiring party who

Opposes summary judgment to produce a short

statement of facts which “shall reference the

appropriate deposition, affidavit . . . or other

source . . . by page, paragraph, number, or other

detail sufficient to permit the court to readily

locate and check the source”); see, also,

_N.D.Fla.Loc.R. 26.2(A) (prohibiting filing of full

deposition transcripts; requiring parties to file

only those portions of a transcript which are

relevant).

4

Counsel for the Plaintiffs complied with the first of

the Courts three directives: in Plaintiffs’ additional

memorandum of law, counsel explains unambiguously

that Plainuffs have stated claims for disparate treatment

racial discrimination, disparate impact racial

discrimination, and hosule environment racial harassment.

Counsel has- also complied with the Court’s second

directive: each section of Plaintiffs’ memorandum contains

a statement of the Eleventh Circuit law which controls.

Counsel has not, however, complied with the third

directive. ‘

The majority of Plaintiffs’ arguments in support of

their position that they are able to survive summary

judgment are backed up merely by conclusory allegations.

Counsel has not, as directed, pointed the Court to

relevant portions of the record which can support the

claims which Plaintiffs have attempted to raise. For that

reason, it is fully evident that summary judgment is now

the appropriate disposition of this case.

ANALYSIS

VI. RACE DISCRIMINATION

VERSUS BEARD

DISCRIMINATION

The Court has already pointed out to these parties

that Title VII only prohibits specifically-listed types of

workplace discrimination -- namely, discrimination

motivated by an employee’s race, color, religion, sex or

national origin. 42 U.S.C. § 2000e-2 (a) (2). The

<statute does not constitute an across-the-board

proscription against all unfair or irrational treatment of

employees. So, no matter how arguably illogical and

inequitable a particular employment policy (such as the

Defendant's alleged de facto “no beard” promotion policy)

may or may not be, it cannot be deemed to run afoul of

Title VII unless it effectively discriminates based on race,

color, religion, sex or national origin. See Nix v. WLCY

Radio/Rahall Communications, 738 F.2d 1181, 1187

(11th Cir. 1984).

The Court has explained its view that the record in

this case does support allegations of blatant beard-ism.

See Order dated February 11, 1997 (doc. 68) at 13-17.

Beard-ism and racism are, of course, different things,

however, After reviewing the most recently-filed

pleadings, the Court is buttressed in its prior conclusion

that the record before it, while demonstrating

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unapologetic beard-ism, does not support a Title VII

claim of racial discrimination.

As counsel for Plaintiffs phrases it in the

supplemental memorandum of law, “[s ]upervisors within

Defendant told both Plaintiffs herein that their beards

were the very reason that they would not be

promoted.” Plaintiffs, Charles Seaborn’s and Robert

Harn’, Response to Court Order dated February 11, 1997

(doc. 70) at 4 (emphasis added). Elsewhere, counsel

argues that “Plaintiff Seaborn should have received a

promotion and . . . ‘but for’ his beard, this position

would have been his,” and that Plainuff Harris “did not

apply for promotions because he knew that he would not

be promoted because of his beard.” Id. at 9 (emphasis

added). These quoted passages (which are borne out by

the full record) sufficiently demonstrate that -- under the

argument put forward by the plaintiffs themselves --

Plaintiffs were passed over for promotions not because of

their skin color, but, rather, because of their facial hair.

Hence, accepting as true Plaintiffs’ version of the facts, the

unavoidable conclusion is that the plaintiffs were victims

of irrational beard discrimination, not illegal race

discrimination.”

Plaintiffs have asked the Court to

follow a winding theory of the case in order to

~ arrive at a conclusion that, under the facts as

piace Adaleed ee Sako aes ee SSS co.

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B. DISPARATE TREATMENT

RACIAL DISCRIMINATION

So-called disparate treatment racial discrimination

is nothing more than intentional discrimination against an

individual on the basis of his membership or non-

membership in a particular racial group. The Supreme

Court has provided the following, straightforward

presented here, beard discrimination and race

discrimination are one and the same. In essence,

Plaintiffs argue the following: (1) they were not

promoted because they have beards; (2) they have

beards because their doctors instructed them to

grow beards; (3) their doctors instructed them to

grow beards because they have a skin condition

known as pseudo folliculitis barbae (“PFB”); (4) PFB

predominantly affects blacks; (5) accordingly they

suffer from PFB because they are black; and (6)

hence, they are forced to have beards because they

are black. It is therefore Plaintiffs’ position that

while technically-speaking they were passed over

for promotions because they have beards,

practically-speaking that amounted to a decision to

_ deny them promotions because they are black.

Based on that position, Plaintiffs urge that they

have presented a meritorious Title VII race

discrimination lawsuit. The Court disagrees.

a

8c

explanation of disparate treatment racial discrimination

suits under Title VII: they are warranted when an

“employer simply treats some people less favorably than

others because of their race. . ..“ Intl Brotherhood

of Teamsters v. United States, 431 U.S. 324, 335-36n.15

(1977) (quoted in Armstrong v. Flowers Hospital, Inc..,

33 F.3d 1308, 1313 (11th Cir. 1994)) (emphasis added).

Here, Plaintiffs have submitted various pieces of

testimony indicating many persons’ belief that the two

plaintiffs were treated less favorably than other employees

of Defendant. Plaintiffs have not, however, submitted

testimony permitting this Court -- looking at the record

in the light most favorable to their case -- to draw the

conclusion that they were passed over for promotional

opportunities because of their race. To the contrary, the

record is clear that Plaintiffs were treated less favorably

than other workers (both white and black alike*) because

7 As noted in the previous order, two

of the four promotions for which Plaintiff Seaborn

applied were filled by African-American

employees. Moreover, as Defendant notes in its

recent pleading, the facility where both of the

plaintiffs worked had five supervisory officers (a

major, a lieutenant, and three sergeants). While

Plaintiffs were still there, an African-American

employee was promoted to the rank of sergeant,

are

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they were not clean-shaven. The record plainly indicates

that facial hair, and not race, was the determinative factor

in the decision to treat the plaintiffs in a less than

favorable manner. Thus, it remains apparent that the facts

as alleged by Plaintiffs cannot support an action under

Title VIL.

To establish a Title VII claim for disparate

treatment racial discrimination in the failure to promote

context, a plaintiff must prove: (1) that he is a member of

statutorily protected class; (2) that he was qualified for

and applied for the desired promotion; (3) that he was

rejected; and (4) that other equally or less qualified

employees who were not members of the protected class

were promoted. Combs v. Plantation Patterns, 106 F.3d

1519, 1539 n.11 (11th Cir. 1997) (citing Wu v. Thomas,

847 F.2d 1480, 1488 (11th Cir. 1988), cert. denied, 490

U.S. 1006 (1989)).

and another African-American achieved the rank of

lieutenant. Defendant’s Response to Plasntiff’s

Response to Order of February 11, 1977 (doc. 71) at

10. Hence, the undisputed record evinces that

~ African Americans (albeit clean-shaven ones) were

not precluded from advancing through the

promotional ranks.

10

Plaintiffs cannot state a prima facie case under the

facts of record in this case. Plainnffs are African

Americans; as such they are members of a racial group

entitled to protection under Titie VII. It is undisputed,

however, that other African American were chosen as the

successful applicants for the two of the four promotions

that Plaintiff Seaborn desired. Hence, logic dictates that

there is a reason other than the plaintiffs’ race that they

did not receive the promotions they desired. In this case,

that reason is patently clear: Plaintiffs wear beards.

Plaintiffs ask the Court to recognize their

membership in the “protected class” of persons who are

“black and bearded.” Plaintiffs, Charles Seaborn’s and

Robert Harnis’, Response to Court Order dated February 11,

1997 (doc. 70) at 6-7. The Court finds that claim of

membership in a subclass of persons who are identified as

“black and bearded” does not entitle Plaintiffs to special

protection under Title VII.

Black employees applied for, and received, half of

the promotions for which Plaintiff Seaborn submitted

applications. Clearly, then, race was not the factor that

motivated Defendant to promote persons other that

Seaborn. Plainuff Harris, on the other hand, never even

submitted one application for promotion. And while

Harris argues that it would have been futile for him to

submit an application for a job given comments made to

him by supervisory employees of Defendant, it is

ERR AMES EE Kew Gait. ath

lle

significant to note his explanation for that futility

argument. Harris does not suggest that his race would

have rendered useless his ability to advance; instead, he

states that he “did not apply for promotions because he

knew that he would not be promoted because of his

beard.” Plaintiffs, Charles Seaborn’s and Robert Harns’,

Response to Court Order dated February 11, 1997 (doc. 70)

at 9 (emphasis added).

In conclusion, the Court finds that Defendants

alleged de facto policy of refusing to promote employees

with beards to supervisory positions cannot amount to

disparate treatment racial discrimination actionable

pursuant to Title VII. Discrimination on the basis of

facial hair is simply not covered by the text of that statute.

G. DISPARATE IMPACT

RACIAL DISCRIMINATION

Perhaps in anticipation of the Court's ruling on the

disparate treatment claim, Plaintiffs’ recently-submitted

memorandum of law indicates -- for the first time in this

litigation -- that their complaint also states a claim of

disparate impact racial discrimination. Plaintiffs have not,

however, produced and filed adequate documentation to

support such a claim.

12

To state a prima facie claim of disparate impact

racial discrimination pursuant to Title VII, a plaintiff

must first identify the specific employment practice* that

allegedly has a disproportionate impact on a group of

persons entitled to protection under the statute. Watson

v. Ft. Worth Bank and Trust, 487 U.S. 977, 994 (1988);

Armstrong v. Flowers Hospital, Inc., 33 F.3d at 1314.

Assuming the plainnff is able to satisfy that first step, he

must next establish causation by offering statistical

evidence sufficient to show that the employer’s practice

has resulted in prohibited discrimination. Watson, 487

U.S. at 994; Armstrong, 33 F.3d at 1314.

As the Supreme Court has explained, disparate

impact cases typically focus on statistical disparities and on

the various explanations for those disparities. Watson,

487 U.S. at 994. To satisfy the second step of disparate

impact case, then, a plaintiff must produce competent

evidence -- in the form of statistics -- which shows that the

alleged adverse impact from a particular employment

policy falls disproportionately on statutorily protected

employees. Armstrong, 33 F.3d at 1315; see, also,

Edwards v. Wallace Comm. College, 49 F.3d 1517, 1520

(llth Cir. 1995) (holding that plainuff must present

4

Here, Plaintiffs point to the alleged

de facto policy not to promote employees with

beards.

awe sorta §

13¢

statistical comparison evidence to support his Title VII

disparate impact claim).

Here, Plaintiffs have failed to state a prima facie

case of disparate impact racial discrimination. Simply put,

Plaintiffs offer no _ statistical evidence whatsoever.

Although Plainnffs make a number of conclusory

allegations in their memorandum of law averring that

Defendant's alleged de facto policy of refusing to promote

bearded persons to supervisory positions affects African

American employees disproportionately, Plainuffs offer

zero Statistical evidence of any kind in support of those

allegations. Because the record lacks such statistical proof,

the disparate impact claims necessarily fail. See Edwards,

49 F.3d at 1520 (upholding district court’s grant of

summary judgment on plaintiffs disparate impact Title

VII claim because plaintiff “failed to make the required

statistical comparison”)°

: In the memorandum of law, counsel

for Plaintiffs attempts to justify her complete lack

of statistical evidence through an unverified

averment in a foomote which states that one

potential witness told counsel that “he could not

perform a statistical analysis.” The Court finds

that counsel’s statement does not excuse these

would-be disparate impact plaintiffs from their

obligation to set forth a prima facie case.

l4¢

H. HOSTILE WORK ENVIRONMENT

RACIAL HARASSMENT

To set forth a prima facie case of hostile work

environment racial harassment under Title VIL, a plainuff

must establish that: (1) he belongs to a protected class;

(2) he was subjected to unwelcome racial harassment; (3)

the harassment was based on race; and (4) the harassment

affected a term, condition, or privilege of employment.

Henson v. City of Dundee, 682 F.2d 897, 903-05 (11th

Cir. 1982); Dudley v. Wal-Mart Stores, Inc., 931 F.Supp.

773, 791 (M.D.Ala. 1996). Once again, the Court finds

that Plaintiffs are unable to set forth a prima facie case.

The Court has already explained its conclusion that

the alleged differential treatment of Plaintiffs was due to

the plaintiffs’ beards, and not their race. As the Defendant

notes, all of the evidence that Plaintiffs have submitted

indicates that they were discriminated against either

because of their facial hair, or that they were victims of

general harassment. The Court therefore finds that

Plainnffs have not satisfied the third prong of this four

part prima facie case: the full record demonstrates that the

alleged harassment to which Plaintiffs were subjected

Rip abtadi webs Mh =

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was based on their beards, not their race.° As such, the

The Court is, of course, aware that

Plaintiffs have presented one or two specific

examples (referenced briefly at foomote ten of the

Courts prior order) of racially offensive

comments/acts by Plaintiffs’ co-workers. Counsel

for Plaintiffs has, through the additional pleading,

been given a second opportunity to lay out “each

and every fact” supporting the hostile environment

claim; based On the Plaintiffs’ submissions and the

complete record, the Court finds as a matter of law

that Plaintiffs have mot met their burden in

opposition to Defendant’s motion for summary

judgment on the hostile environment portion of

the Title VII cause of action. See Sullivan v. Natl

R.R. Passenger Corp., 1996 WL 815394, *2

(S.D.Fla. 1996) (noting that courts are reluctant

to allow plaintiffs to proceed on_ hostile

environment claims which are based on isolated

incidents); and Ellis v, Wal-Mart Stores, Inc., 952

F.Supp. 1522, 1527 (M.D.Ala. 1996) (“It is well

established that isolated and sporadic incidents of

harassment are insufficient to create a hostile

working environment”) (citing Rogers v. E.E.O.

C., 454 F.2d 234, 237-38 (Sth Cir. 1971), cert.

denied, 406 U.S. 957 (1972)); and Lewis_v.

Zilog, 908 F.Supp. 931, 956-57 (N.D.Ga. 1995).

lOc

hostile environment claim necessarily fails.

It is hereby ”

ORDERED AND ADJUDGED

(1) The portion of Defendant’s Motion for

Summary Judgment (doc. 49) which was held in abeyance

by the Court’s Order dated February 11,1997, is now

GRANTED. This case is DISMISSED WITH

PREJUDICE.

(2) The jury trial scheduled for June 23, 1997,

is CANCELED.

(3) Theclerk is directed to CLOSE the case.

DONE AND ORDERED this 13th day of June,

1997,

Maurice M. Paul

MAURICE M. PAUL,

CHIEF DISTRICT JUDGE

7c

JUDGMENT IN A CIVIL CASE

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

No. 4:96cv ]68MMP

CHARLES SEABORN and ROBERT HARRIS

V.

SLATE OF FLORIDA,

DEPARTMENT OF CORRECTIONS

Maurice M. Paul, Chief Judge

Jury Verdict. This action came before the Court and a

jury with the judicial officer names above presiding. The

issues have been tried and the jury has rendered its verdict.

” Decision by Court. This action

came to trial or hearing before the Court

with the judge (magistrate judge) named

above presiding. The issues have been tried

or heard and a decision has been rendered.

18

IT IS ORDERED AND ADJUDGED

Judgment is entered in favor of defendant State of

Florida, Department of Corrections and against plaintiffs

Charles Seaborn and Robert Harris. This case is

dismissed with prejudice.

Robert A. Mossing, Clerk

June 16, 1997

By Deputy Clerk: Diane Snell

s/ Diane Snell

ENTERED ON DOCKET

June 16, 1997 BY ds