Dixon v. Coburg Dairy, Inc.

• Decision Date: 30 May 2003
• Docket Number: No. 02-1266.,02-1266.
• Parties: Matthew DIXON, Plaintiff-Appellant, v. COBURG DAIRY, INCORPORATED, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

330 F.3d 250

Matthew DIXON, Plaintiff-Appellant, v. COBURG DAIRY, INCORPORATED, Defendant-Appellee.

No. 02-1266.

United States Court of Appeals, Fourth Circuit.

Argued: December 4, 2002.

Decided: May 30, 2003.

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ARGUED: Samuel Wilson Howell, IV, HOWELL & LINKOUS, L.L.C., Charleston South Carolina, for Appellant. J. Thomas Kilpatrick, ALSTON & BIRD, L.L.P., Atlanta, Georgia, for Appellee. ON BRIEF: Alan B. Linkous, HOWELL & LINKOUS, L.L.C., Charleston, South Carolina; Mikell R. Scarborough, Charleston, South Carolina, for Appellant. Christopher S. Enloe, ALSTON & BIRD, L.L.P., Atlanta, Georgia, for Appellee.

Before GREGORY, Circuit Judge, GOODWIN, United States District Judge for the Southern District of West Virginia, sitting by designation, and MICHAEL, JR., Senior United States District Judge for the Western District of Virginia, sitting by designation.

Affirmed in part and reversed in part by published opinion. Judge GREGORY wrote the opinion, in which Senior Judge MICHAEL joined. Judge GOODWIN wrote an opinion concurring in part and dissenting in part.

OPINION

GREGORY, Circuit Judge:

Matthew Dixon, an employee of Coburg Dairy, Inc., was asked by his employer to remove two Confederate flag stickers from his tool box after an African-American co-worker complained. Dixon refused to remove the stickers, and Coburg, relying on the company's anti-harassment policy, fired Dixon. Dixon then filed suit in South Carolina state court, alleging wrongful discharge and a "Violation of Constitutional Rights." Coburg removed the case to federal court on the ground that Dixon's complaint necessarily depended on the resolution of a substantial question of federal law. Dixon filed a motion to remand, which the district court denied. The district court then granted Coburg's motion for summary judgment and dismissed the case. Dixon appeals both of the district court's rulings. For the reasons discussed below, we affirm in part and reverse in part.

I.

In April 1997, in Charleston, South Carolina, Matthew Dixon, began his employment as a mechanic with Coburg Dairy, Inc., ("Coburg"). In April 2000, Dixon was given a copy of Coburg's policy prohibiting harassment. The policy explained that "[h]arassment may take many forms, including... [v]isual conduct such as derogatory posters, cartoons, drawings, or gestures." The policy also warned employees that anyone "who behaves in a manner that is inconsistent with this policy will be subject to discipline up to and including termination."

Dixon is an active member of the Sons of Confederate Veterans ("SCV"), an all-male organization whose members "can prove genealogically that one of their ancestors served honorably in the armed forces of the Confederate States of America." Sons of Confederate Veterans v. Comm'r of the Va. Dep't of Motor Vehicles, 288 F.3d 610, 613 n. 1 (4th Cir.2002). Beginning in January 2000, a conflict developed among South Carolinians over whether to remove the Confederate battle flag from atop their state capitol dome. As Dixon notes, this conflict became "a burning issue in the State of South Carolina," marking a "period of intense national scrutiny and public debate." (Br. for Appellant at 4.)

It was in this context that Dixon placed two Confederate battle flag stickers on his personal tool box. One was visible on the outside of the box; the other was inside the box, but visible when the box was open. Dixon used the tool box and displayed both flag stickers while at work inside the Coburg Dairy garage. An African-American co-worker, Leroy Garner confronted Dixon and informed him that he found the stickers racially offensive and a violation of Coburg's harassment policy. Dixon disagreed, maintaining that his display of the stickers did not violate Coburg's policies and, notwithstanding any policy to the contrary, that it was his constitutional right to display the flag. Thereafter, Dixon, Garner, and Coburg attempted to mediate a compromise. Coburg offered to buy Dixon a new, unadorned tool box, allowing him to keep his previously decorated box for home use. Dixon responded that his heritage was "not for sale." In the end, Coburg insisted that the stickers be removed, and Dixon refused. Having reached an impasse, Coburg fired Dixon on September 5, 2000, on the ground that he had violated the company's anti-harassment policy.

Dixon filed a nine-count complaint in South Carolina state court. Count I, titled a "Violation of Constitutional Rights," alleged that "Coburg violated the constitutional rights of its employee by its termination of Plaintiff." In Count III, Dixon stated a claim for "Violation of Public Policy" based on S.C.Code Ann. § 16-17-560 (2002). He alleged that he was fired for displaying the Confederate flag, and that this action "constitute[d] a violation of South Carolina criminal law and therefore a violation of the public policy of this State." Premised on these same facts, Dixon articulated a claim in Count IV for retaliatory discharge.

Insisting that Counts I, III, and IV raised substantial questions of federal law, Coburg removed the case to federal court. Dixon filed a motion to remand, which the district court denied. The parties then filed cross-motions for summary judgment. The district court granted Coburg's motion for summary judgment and dismissed the case. This appeal followed.

II.

Whether federal subject matter jurisdiction exists is a question of law that this Court reviews de novo. Mulcahey v. Columbia Organic Chemicals Co., Inc., 29 F.3d 148, 151 (4th Cir.1994). The grant of a motion for summary judgment is also reviewed de novo. Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir.2001).

III.

A.

Coburg's removal to district court was based on 28 U.S.C. § 1331 (2001), giving federal courts original jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States." Count I of Dixon's complaint is titled, "Violation of Constitutional Rights," and asserts a claim based upon "[t]he First Amendment to the U.S. Constitution." Dixon maintains in this count that "Coburg violated the constitutional rights of its employee by its termination of Plaintiff," and he concludes, "Coburg's termination of Plaintiff for display of the flag constitutes a violation of his constitutional rights entitling Plaintiff to an award for damages." At its core, Count I appears to require a determination as to whether Coburg's actions amount to a violation of Dixon's free speech right under the United States Constitution. This appearance, however, is illusory, as Dixon concedes that the First Amendment protects citizens only from government or State interference with their rights to free speech, see Rendell-Baker v. Kohn, 457 U.S. 830, 837, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982), and further concedes that Coburg Dairy is not a state actor.

"[F]ederal courts are without power to entertain claims otherwise within their jurisdiction if they are `so attenuated and insubstantial as to be absolutely devoid of merit'...." Hagans v. Lavine, 415 U.S. 528, 537, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974) (internal citations omitted). At the same time, however, "`Jurisdiction... is not defeated ... by the possibility' that the averments might fail to state a cause of action on which [a plaintiff] could actually recover. For it is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction." Id. at 542, 94 S.Ct. 1372 (quoting Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946)). Thus, before assuming jurisdiction over Dixon's case based on a supposed federal cause of action in Count I, we must determine if the insubstantiality doctrine deprives us of jurisdiction to even consider this claim.

In Bell v. Hood, the Supreme Court explained:

The previously carved out exceptions are that a suit may sometimes be dismissed for want of jurisdiction where the alleged claim under the Constitution or federal states clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous.

Id. at 682-83, 66 S.Ct. 773 (emphasis added). As this quotation suggests, the insubstantiality doctrine is best (though not exclusively) applied in cases where the plaintiff has attempted to abuse Rule 8's liberal pleading requirements by drafting a complaint that appears on the surface, though not in substance, to rely upon a question of federal law. This reading of the rule is supported by this Circuit's decision in Lovern v. Edwards, 190 F.3d 648, 655 (4th Cir.1999), where we observed, "As we warned in Davis [v. Pak, 856 F.2d 648, 651 (4th Cir.1988)], federal courts must guard against the litigant who frames a pretextual issue solely for the purpose of having a state-law claim adjudicated in the federal system; Article III of the Constitution forbids this practice."

The Bell Court has further commented that the insubstantiality doctrine is a disfavored rule, and "[t]he accuracy of calling these dismissals jurisdictional has been questioned." 327 U.S. at 683, 66 S.Ct. 773 (citing Justice Holmes' ruling in The Fair v. Kohler Die and Specialty Co., 228 U.S. 22, 33 S.Ct. 410, 57 L.Ed. 716 (1913)). In the past, we have invoked the insubstantiality doctrine sparingly, see Eastern Band of Cherokee Indians v. Larch, 872 F.2d 66, 68 (4th Cir.1989) (noting that "[t]he Tribe's complaint satisfie[d] th[e] relatively low jurisdictional threshold imposed by the doctrine"), and only in cases where a plaintiff has drafted a frivolous count solely for the purpose of filing a claim in federal court. See Davis, 856 F.2d 648; Lovern, 190 F.3d 648; Goldsmith v. Baltimore, 845 F.2d 61 (4th Cir. 1988); Holloway v. Schweiker, 724 F.2d 1102 (4th Cir.1984).

Still, the insubstantiality doctrine seeks to do more than prevent plaintiffs...