Dawson v. Bumble & Bumble

Decision Date17 February 2005
Docket NumberDocket No. 03-7180.
PartiesDawn DAWSON, Plaintiff-Appellant, v. BUMBLE & BUMBLE, Defendant-Appellee,
CourtU.S. Court of Appeals — Second Circuit

Rick Ostrove, Leeds Morelli & Brown, P.C., Carle Place, NY, for Plaintiff-Appellant Dawn Dawson.

Ellen M. Martin (Kathleen L. Jennings, on the brief), Patterson, Belknap, Webb & Tyler LLP, New York, NY, for Defendant-Appellee Bumble & Bumble.

Before: STRAUB, POOLER, and B.D. PARKER, Circuit Judges.

BACKGROUND

POOLER, Circuit Judge:

This is an employment discrimination case. Plaintiff-Appellant Dawn Dawson, a self-described "lesbian female, who does not conform to gender norms in that she does not meet stereotyped expectations of femininity and may be perceived as more masculine than a stereotypical woman," claims that she suffered discrimination on the basis of sex, sex stereotyping, and/or sexual orientation in violation of federal, state, and municipal law. See Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 290 et seq.; New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code, Title 8. Dawson's former employer, Defendant-Appellee Bumble & Bumble, describes itself as "a prestigious, high-end hair salon in Manhattan, known for its innovative hair cutting techniques."

Dawson was hired by Bumble & Bumble in early 1999 as a "hair assistant." Dawson describes the duties of this position as including "assisting [hair] stylists in all aspects of their jobs, keeping their work areas in the salon clean, escorting clients to different areas of the salon, shampooing clients' hair, and blow-drying clients' hair."

In addition to her duties as a hair assistant, Dawson was simultaneously enrolled in Bumble & Bumble's training program for hair stylists. As described by Bumble & Bumble, the program is a "rigorous" one:

An assistant must successfully complete, in succession, the Salon's basic blow-drying class, the basic scissor class, the basic razor class and spend some time in the advanced razor class.

Assistants in the basic cutting and razor classes are required to bring four models to each class. During class, the assistants practice consultation skills with each model and shampoo, cut and blow-dry their models' hair. An assistant's models must have the right kind of hair (in terms of length, texture and style) for the particular haircut on which the assistant is working, or the assistant will not be able to successfully perform the required haircut. Assistants must also properly use Bumble's haircutting techniques when performing the four haircuts. In order to move beyond the Salon's basic cutting class, assistants must complete to the satisfaction of their teachers four different haircuts: the bob, the graduated bob, long layers and short layers and demonstrate positive attitudes during their classes.

Dawson alleges in her complaint that she "was confident that she would be able to graduate from the hair assistant training program to a stylist in an expedited fashion." We do not see, however, that Dawson disputes Bumble & Bumble's contention that "[o]nly about 10-15% of the total number of assistants at the Salon at any given time typically complete the educational program" and that it generally takes these successful candidates at least two and sometimes three years to complete the program.

The district court observed that the Bumble & Bumble salon is an unconventional workplace, a "heterogenous environment that strives for the avant garde and extols the unconventional." Dawson v. Bumble & Bumble, 246 F.Supp.2d 301, 311 (S.D.N.Y.2003). The district court also found that the salon's employees "embody many lifestyles and sexual preferences and reflect varying physical appearances, overall looks, and different manners of hair [,] dress and clothing." Id. at 310. Bumble & Bumble itself contends that "[i]f there is a `norm' for Bumble employees, it is the norm of non-conformance." Thus, Bumble & Bumble asserts that the salon regularly employs "sexually `non-stereotypical' individuals, including a female-to-male transsexual, [an] openly bisexual Education Coordinator, numerous other openly gay employees, and both male and female gay employees, including ... lesbian employees with very androgynous looks." The district court found it to be particularly significant that Connie Voines, the manager of the salon and the individual who ultimately decided to terminate Dawson, is "a pre-surgery male-to-female transsexual who ... at the time of the events in question, was transitioning from appearing male to appearing female." Dawson, 246 F.Supp.2d at 309.

Dawson does not seriously contest the depiction of the Bumble & Bumble salon as an environment in which conformance to gender norms was something less than a prerequisite for continued employment. When asked at her deposition if the salon employed "nonconformists" other than herself, Dawson replied: "It's like, you know, I don't think hairdressers are conformists anyway, so I would say the whole lot of them." Further, Dawson testified that she was not at all reticent about her lesbianism while working at the salon, but rather "discussed my life like anybody else would discuss their life and you know and I wasn't hidden about who I was." Dawson also stated that she was a willing participant in the sexually-charged banter that took place among the salon's employees, and that she would sometimes refer to herself as a "dyke." More generally, she stated that "lesbian jokes were brought up" and "you know, I like myself, I'm happy, so if this is light and funny, I'm with that."

The issue on which the parties disagree sharply is the quality of Dawson's performance as a hair assistant and as a participant in Bumble & Bumble's training program. Dawson alleges in her complaint that "her work was consistently praised by Connie Voines ... by other stylists, and clients" and that "several individuals who evaluated her work progress in the training program gave [her] positive feedback."

Dawson was terminated on July 15, 2000. According to Bumble & Bumble, Dawson's firing was the result of poor performance on the job and in the training program:

Dawson's performance at the Salon was erratic: sometimes she performed well and with an enthusiastic attitude; other times, she did not. Over time, her performance on the Salon floor and in the educational program declined until it was unacceptable. For example, Dawson's performance in the basic cutting class was inadequate to advance to basic razor.

* * * * * *

Dawson also demonstrated significant performance deficiencies on the Salon floor. Several clients complained that she had been rude or abrupt with them or rough with their hair — more than with any other assistant. Similarly, several stylists complained that she was hostile or disrespectful.

... By mid-2000, the level of dissatisfaction with Dawson's work had become extreme. In June 2000, Ralph Formisano, a senior stylist, registered serious complaints to Voines about Dawson's performance as his assistant. Formisano complained that he frequently could not find Dawson when he needed assistance with his clients, ... and that she was disrespectful and rude to him and his clients.

Voines spoke to Dawson and gave her a last chance. She assigned Dawson to assist stylists Nancy Morandi and Sharon Morrissey. Soon thereafter, Morandi registered complaints similar to Formisano's. Indeed, Dawson was so unhelpful that Morandi informed Voines that she did not want to work with Dawson any longer, even if that meant working with no assistant at all.

Appellee's Br. at 4-6 (internal citations omitted).

Dawson contends, however, that her failure to advance in Bumble & Bumble's training program and her termination are the result of discriminatory animus. As to the training program, Dawson alleges that it was repeatedly made clear to her that females rarely attained the position of hair stylist. Specifically, Dawson asserts that on one occasion when she asked Voines to place her in an editorial styling class, Voines stated, "How many women do you see doing editorial.... They only want men with accents." Dawson also points to an affidavit from Amy Strober, another hair assistant, in which Strober states that when she asked to be assigned to a styling class, Voines said, "Do you know how many famous female editorial stylists there are? There is one."

With respect to her work on the salon floor as a hair assistant, Dawson alleges that she was subjected to a hostile work environment in that "[s]he was constantly harassed about her appearance, that she did not conform to the image of women, and that she should act in a manner less like a man and more like a woman." Dawson alleges that a range of invective was directed at her by fellow Bumble & Bumble employees: (1) two stylists, Howard McLaren and Raymond McLaren, repeatedly referred to her "in front of colleagues and clients, by the name `Donald'"; (2) a stylist named Ralph Formisano once stated that she was "`wearing her sexuality like a costume,' implying that she did not conform to gender norms and appeared to be a lesbian"; and (3) a fellow hair assistant named Deniz Uzunoglu once "loudly proclaimed to [her], in extremely vulgar and threatening terms, that he thought she `needed to have sex with a man.'"

In addition, Dawson asserts that the McLarens stated to educators in Bumble's education department that they wanted to fire her because of her "`dyke' attitude." Finally, Dawson alleges that her termination took place as follows:

On or about July 15, 2000, Voines informed Dawson that she was terminated because she "seemed unhappy" and because of the way she dressed and wore her hair. When Dawson asked for clarification, Voines stated that she could not send her to New Jersey or any place outside New...

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