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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1999
- **Citation:** 525 U.S. 1144

## Text

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

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

¢

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 =

I5¢

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1022%3A1. Public record. Not legal advice.