Equal Emp't Opportunity Comm'n v. Catastrophe Mgmt. Solutions

• Decision Date: 13 December 2016
• Docket Number: No. 14-13482,14-13482
• Citation: 852 F.3d 1018
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff–Appellant, v. CATASTROPHE MANAGEMENT SOLUTIONS, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

852 F.3d 1018

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff–Appellant,

v.CATASTROPHE MANAGEMENT SOLUTIONS, Defendant–Appellee.

No. 14-13482

United States Court of Appeals, Eleventh Circuit.

Date Filed: December 13, 2016

Paula René Bruner, Jeremy D. Horowitz, Equal Employment Opportunity Commission, Office of General Counsel–Appellate Services, Washington, DC, Julie Bean, Marsha Lynn Rucker, C. Emanuel Smith, EEOC, Birmingham, AL, for Plaintiff–Appellant.

David James Middlebrooks, Whitney Ryan Brown, Lehr Middlebrooks & Vreeland, PC, Birmingham, AL, Thomas M. Johnson, Jr., Eugene Scalia, Helgi C. Walker, Gibson Dunn & Crutcher, LLP, Washington, DC, for Defendant–Appellee.

Joshua P. Thompson, Pacific Legal Foundation, Sacramento, CA, for Amicus Curiae Pacific Legal Foundation.

William S. Consovoy, Consovoy McCarthy, PLLC, Arlington, VA, for Chamber of Commerce of the United States of America.

Christina Swarns, I, NAACP Legal Defense & Educational Fund, Inc., Criminal Justice Project, New York, NY, for Amicus Curiae NAACP Legal Defense.

Before JORDAN and JULIE CARNES, Circuit Judges, and ROBREÑO,^* District Judge.

JORDAN, Circuit Judge:

We withdraw our previous opinion, dated September 15, 2016, and published at 837 F.3d 1156, and issue this revised opinion:

The Equal Employment Opportunity Commission filed suit on behalf of Chastity Jones, a black job applicant whose offer of employment was rescinded by Catastrophe Management Solutions pursuant to its race-neutral grooming policy when she refused to cut off her dreadlocks. The EEOC alleged that CMS' conduct constituted discrimination on the basis of Ms. Jones' race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2(a)(1) & 2000e–2(m). The district court dismissed the complaint under Federal Rule of Civil Procedure 12(b)(6) because it did not plausibly allege intentional racial discrimination by CMS against Ms. Jones. See E.E.O.C. v. Catastrophe Mgmt. Solutions , 11 F.Supp.3d 1139, 1142–44 (S.D. Ala. 2014). The district court also denied the EEOC's motion for leave to amend, concluding that the proposed amended complaint would be futile. The EEOC appealed.

With the benefit of oral argument, we affirm. First, the EEOC—in its proposed amended complaint and in its briefs—conflates the distinct Title VII theories of disparate treatment (the sole theory on which it is proceeding) and disparate impact (the theory it has expressly disclaimed). Second, our precedent holds that Title VII prohibits discrimination based on immutable traits, and the proposed amended complaint does not assert that dreadlocks—though culturally associated with race—are an immutable characteristic of black persons. Third, we are not persuaded by the guidance in the EEOC's Compliance Manual because it conflicts with the position taken by the EEOC in an earlier administrative appeal, and because the EEOC has not persuasively explained why it changed course. Fourth, no court has accepted the EEOC's view of Title VII in a scenario like this one, and the allegations in the proposed amended complaint do not set out a plausible claim that CMS intentionally discriminated against Ms. Jones on the basis of her race.

I

The EEOC relies on the allegations in its proposed amended complaint, see Br. of EEOC at 2–6, so we set out those allegations below.

A

CMS, a claims processing company located in Mobile, Alabama, provides customer service support to insurance companies. In 2010, CMS announced that it was seeking candidates with basic computer knowledge and professional phone skills to work as customer service representatives. CMS' customer representatives do not have contact with the public, as they handle telephone calls in a large call room.

Ms. Jones, who is black, completed an online employment application for the customer service position in May of 2010, and was selected for an in-person interview. She arrived at CMS for her interview several days later dressed in a blue business suit and wearing her hair in short dreadlocks.

After waiting with a number of other applicants, Ms. Jones interviewed with a company representative to discuss the requirements of the position. A short time later, Ms. Jones and other selected applicants were brought into a room as a group.

CMS' human resources manager, Jeannie Wilson—who is white—informed the applicants in the room, including Ms. Jones, that they had been hired. Ms. Wilson also told the successful applicants that they would have to complete scheduled lab tests and other paperwork before beginning their employment, and she offered to meet privately with anyone who had a conflict with CMS' schedule. As of this time no one had commented on Ms. Jones' hair.

Following the meeting, Ms. Jones met with Ms. Wilson privately to discuss a scheduling conflict she had and to request to change her lab test date. Ms. Wilson told Ms. Jones that she could return at a different time for the lab test.

Before Ms. Jones got up to leave, Ms. Wilson asked her whether she had her hair in dreadlocks. Ms. Jones said yes, and Ms. Wilson replied that CMS could not hire her "with the dreadlocks." When Ms. Jones asked what the problem was, Ms. Wilson said "they tend to get messy, although I'm not saying yours are, but you know what I'm talking about." Ms. Wilson told Ms. Jones about a male applicant who was asked to cut off his dreadlocks in order to obtain a job with CMS.

When Ms. Jones said that she would not cut her hair, Ms. Wilson told her that CMS could not hire her, and asked her to return the paperwork she had been given. Ms. Jones did as requested and left.

At the time, CMS had a race-neutral grooming policy which read as follows: "All personnel are expected to be dressed and groomed in a manner that projects a professional and businesslike image while adhering to company and industry standards and/or guidelines.... [H]airstyle should reflect a business/professional image. No excessive hairstyles or unusual colors are acceptable[.]"

B

Dreadlocks, according to the proposed amended complaint, are "a manner of wearing hair that is common for black people and suitable for black hair texture. Dreadlocks are formed in a black person's hair naturally, without any manipulation, or by manual manipulation of hair into larger coils."

The EEOC alleged that the term dreadlock originated during the slave trade in the early history of the United States. "During the forced transportation of Africans across the ocean, their hair became matted with blood, feces, urine, sweat, tears, and dirt. Upon observing them, some slave traders referred to the slaves' hair as ‘dreadful,’ " and dreadlock became a "commonly used word to refer to the locks that had formed during the slaves' long trips across the ocean."

C

The proposed amended complaint also contained some legal conclusions about the concept of race. First, the EEOC stated that race "is a social construct and has no biological definition." Second, the EEOC asserted that "the concept of race is not limited to or defined by immutable physical characteristics." Third, according to the EEOC Compliance Manual, the "concept of race encompasses cultural characteristics related to race or ethnicity," including "grooming practices." Fourth, although some non-black persons "have a hair texture that would allow the hair to lock, dreadlocks are nonetheless a racial characteristic, just as skin color is a racial characteristic."

Playing off these legal conclusions, the proposed amended complaint set out allegations about black persons and their hair. The hair of black persons grows "in very tight coarse coils," which is different than the hair of white persons. "Historically, the texture of hair has been used as a substantial determiner of race," and "dreadlocks are a method of hair styling suitable for the texture of black hair and [are] culturally associated" with black persons. When black persons "choose to wear and display their hair in its natural texture in the workplace, rather than straightening it or hiding it, they are often stereotyped as not being ‘teamplayers,’ ‘radicals,’ ‘troublemakers,’ or not sufficiently assimilated into the corporate and professional world of employment." Significantly, the proposed amended complaint did not allege that dreadlocks are an immutable characteristic of black persons.

II

Our review in this appeal is plenary. Like the district court, we accept as true the well-pleaded factual allegations in the proposed amended complaint and draw all reasonable inferences in the EEOC's favor. See, e.g. , Ellis v. Cartoon Network, Inc. , 803 F.3d 1251, 1255 (11th Cir. 2015) (dismissal of a complaint for failure to state a claim); St. Charles Foods, Inc. v. America's Favorite Chicken Co. , 198 F.3d 815, 822 (11th Cir. 1999) (denial of a motion for leave to amend due to futility). The legal conclusions in the proposed amended complaint, however, are not presumed to be true. See Ashcroft v. Iqbal , 556 U.S. 662, 679–81, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ; Franklin v. Curry , 738 F.3d 1246, 1248 n.1 (11th Cir. 2013).

A complaint must contain sufficient factual allegations to "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In a Title VII case like this one, the EEOC had to set out enough "factual content t[o] allow[ ] [a] court to draw the reasonable inference" that CMS is liable for the intentional racial discrimination alleged. See Iqbal , 556 U.S. at 678–79, 129 S.Ct. 1937 (explaining that the "plausibility standard" requires more than a "mere possibility" but is "not akin to a ‘probability requirement’ ").

III¹

The EEOC claimed in its proposed amended complaint that a "prohibition of dreadlocks in the workplace constitutes race discrimination because dreadlocks are a manner of wearing the hair that is physiologically and culturally associated with people of African descent." So, according to the EEOC, the decision of CMS to ...