Denny v. Elizabeth Arden Salons, Inc.

• Decision Date: 09 August 2006
• Docket Number: No. 05-1228.,05-1228.
• Parties: Jean DENNY; Seandria Denny, Plaintiffs-Appellants, v. ELIZABETH ARDEN SALONS, INCORPORATED, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

456 F.3d 427

Jean DENNY; Seandria Denny, Plaintiffs-Appellants, v. ELIZABETH ARDEN SALONS, INCORPORATED, Defendant-Appellee.

No. 05-1228.

United States Court of Appeals, Fourth Circuit.

Argued: May 25, 2006.

Decided: August 9, 2006.

ARGUED: James Arthur DeVita, Arlington, Virginia, for Appellants. Benjamin Gaillard Chew, Patton Boggs, L.L.P., Washington, D.C., for Appellee. ON BRIEF: Stephanie J. Quincy, Rachel M. Bacalzo, Sherman & Howard, L.L.C., Phoenix, Arizona, for Appellee.

Before WILKINSON, NIEMEYER, and KING, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published opinion. Judge WILKINSON wrote the opinion, in which Judge NIEMEYER joined and in which Judge KING joined as to Parts III and IV. Judge KING wrote an opinion dissenting in part.

WILKINSON, Circuit Judge:

In this case an African American woman bought her mother a gift package from a beauty salon and day spa. Upon visiting the salon to check on her mother and to add a hair coloring to the package, a receptionist told her that there was "a problem" because the salon did not "do black people's hair." The mother and daughter brought this suit against the salon under Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a et seq. (2000), which prohibits racial discrimination in a "place of public accommodation," and under 42 U.S.C. § 1981, which disallows such discrimination in the making and enforcing of contracts. Plaintiffs also asserted a state law claim for intentional infliction of emotional distress. The district court granted summary judgment to the salon on all claims.

We hold that the district court properly dismissed plaintiffs' Title II claim, because the salon is not a "place of public accommodation," as that term is defined in the statute. Congress has clearly delineated those entities that fall within Title II's ambit, and we are not at liberty to go beyond what it has plainly enacted. But neither can we disregard a congressional edict that proscribes racial discrimination in the contractual setting. We thus hold that the district court erred in dismissing plaintiffs' § 1981 claim, because plaintiffs have presented sufficient evidence to create a triable dispute of fact over whether the salon engaged in the form of discrimination that § 1981 expressly prohibits. Finally, we conclude that the district court appropriately dismissed plaintiffs' state law claim. We thus affirm in part and reverse in part and remand for further proceedings.

I.

Plaintiffs are Seandria Denny and her mother, Jean Denny. They are African American. Defendant is Elizabeth Arden Salons, Inc., which operates Red Door Salon and Spa, an upscale beauty salon and day spa with locations in Virginia and several other states. The salon offers its customers a variety of different beauty services, including hair, skin, and nail care, makeup artistry, and massages, facials, and other body treatments.

The dispute in this case arose from incidents at a Red Door salon in the Tysons Corner Shopping Center in Northern Virginia. On May 26, 2002, Seandria Denny visited the salon to purchase a gift for her mother. She decided to buy Elizabeth Arden's $295 "Miracle Morning" package, which included a massage, facial, manicure, hair style, and lunch. Four days later, Jean Denny went to the salon to redeem her gift package. She received a facial and massage, and the salon then provided her with a salad for lunch. She obtained these services without incident, and planned to have her hair styled after lunch.

While Jean Denny was being served, Seandria Denny called the salon to request that it also color her mother's hair. Over the phone, the employee with whom she spoke agreed that the salon would perform the coloring. Seandria Denny indicated that she would arrive at the salon shortly to pay for the hair coloring (which cost extra) and to see how her mother was doing. Upon her arrival, she approached the receptionist, Raha Ashrafi, and told her that she would like to check on her mother. Ashrafi responded, "[w]ell, Ms. Denny, I think we have a problem." The salon, she explained, did not "do black people's hair." Denny suggested that her mother's hair was straight and similar to Caucasian hair, but Ashrafi continued to maintain that the salon did not do African American hair. Ashrafi indicated that the salon's manager, Chelsey Orth, would shortly be able to speak with Denny.

According to Seandria Denny, upon Orth's arrival, Orth reiterated the salon's refusal to work on Jean Denny's hair. Seandria Denny, outraged, suggested that one of the salon's eight or nine hair stylists should be able to do her mother's hair. Orth responded, however, that she had discussed the situation with each stylist, and all had refused. Seandria Denny told the salon not to touch her mother's hair and that she wanted her mother to leave once she was done with her massage. She then exited the salon, without having seen her mother during the visit. The record is unclear what treatments Jean Denny had received at the time her daughter left the salon.

Orth remembers the events quite differently. She contends that she spoke with Seandria Denny only about her mother's hair coloring. Since the hair coloring would have added an hour to Jean Denny's visit, Orth was unable to include it on such short notice. Orth claims that she explained this to Jean (but not Seandria) Denny, who responded that she did not want her hair colored in any event. Seandria Denny disputes that anyone from Elizabeth Arden ever suggested to her that the hair coloring could be done on a different day.

After Jean Denny had eaten lunch, one of Elizabeth Arden's employees shampooed her hair. Denny then had to wait approximately ten to fifteen minutes for a hair stylist, which, in her opinion, was a little long as compared to other customers. The hair stylist appears not to have asked Jean Denny how she wanted her hair styled, and Denny did not instruct her. Denny expected that the hair stylist would use hot curlers, but the stylist only blow-dried and round brushed Denny's hair. When she had finished, she gave Denny a mirror to view her hair, but never asked Denny if she approved. Denny was shocked when she saw her hair, because the stylist had left it looking like "a bush."

Jean Denny was so surprised and embarrassed by her hair's appearance that she wanted to leave immediately. Without expressing disapproval, Denny got out of the chair, grabbed her coat, and quickly left for her car. She did not stay for the manicure that was included in her package, and did not ask for her money back. She went home, to find her daughter waiting for her. Seandria Denny was aghast when she saw her mother's hair, and furious that the salon had disregarded her instructions not to touch it. The next day, Jean Denny washed and styled her own hair.

Plaintiffs filed suit against Elizabeth Arden on May 20, 2004. They brought two discrimination claims, one under Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a et seq. (2000), and the other under 42 U.S.C. § 1981. They also alleged a claim of intentional infliction of emotional distress under Virginia law. Elizabeth Arden moved for summary judgment, which the district court granted. The district court first held that Title II did not cover the salon. It then concluded that plaintiffs did not proffer evidence sufficient to illustrate either that they were discriminated against in the making and enforcing of a contract under § 1981 or that their emotional distress was severe.

II.

Plaintiffs first argue that the district court improperly dismissed their Title II claim. Title II entitles individuals "to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation ... without discrimination or segregation on the ground of race, color, religion, or national origin." 42 U.S.C. § 2000a(a). It sets forth a comprehensive list of establishments that qualify as a "place of public accommodation," id. § 2000a(b), and in so doing excludes from its coverage those categories of establishments not listed. Places of public accommodation include: (1) hotels and other businesses providing "lodging to transient guests," id. § 2000a(b)(1); (2) restaurants and other facilities "principally engaged in selling food for consumption on the premises," id. § 2000a(b)(2); (3) "place[s] of exhibition or entertainment," id. § 2000a(b)(3); and (4) establishments that are, inter alia, within a covered establishment, id. § 2000a(b)(4). Whether an entity qualifies as a "place of public accommodation" can be a fact-intensive inquiry, because establishments "differ markedly in their operations." Nesmith v. YMCA of Raleigh, N.C., 397 F.2d 96, 98 (4th Cir.1968).

Plaintiffs rely on only one subsection of Title II's definition provision, contending that the salon is a "place of entertainment" under § 2000a(b)(3). Section 2000a(b)(3) defines "place of public accommodation" to include "any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment." Id.

We cannot agree with plaintiffs' argument. The plain text of the statute demonstrates that beauty salons are not covered by Title II. They are not mentioned in any of the numerous definitions of "place of public accommodation." They also bear little relation to those places of entertainment that are specifically listed, which strongly suggests that a salon would not fall within the catchall language "other place of exhibition or entertainment." 42 U.S.C. § 2000a(b)(3). As the Supreme Court has indicated, "the statutory language `place of entertainment' should be given full effect according to its generally accepted meaning." Daniel v. Paul, 395 U.S. 298, 308, 89 S.Ct. 1697, 23 L.Ed.2d 318 (1969) (emphasis added). A "place of entertainment" is one whose particular purpose is to entertain. See The Random House Dictionary...