Fagan v. National Cash Register Company

• Decision Date: 29 June 1973
• Docket Number: No. 71-1243.,71-1243.
• Parties: Gerald Brent FAGAN, Appellant, v. NATIONAL CASH REGISTER COMPANY, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

481 F.2d 1115 (1973)

Gerald Brent FAGAN, Appellant, v. NATIONAL CASH REGISTER COMPANY, Appellee.

No. 71-1243.

United States Court of Appeals, District of Columbia Circuit.

Argued October 20, 1972.

Decided June 29, 1973.

Rehearing Denied August 21, 1973.

Thomas O. Mann, Washington, D.C., with whom Ben Paul Noble, Washington, D.C., was on the brief, for appellant. Henry Schoenfeld, Washington, D.C., also entered an appearance for appellant.

Thomas C. Green, Washington, D.C., with whom David G. Bress, Washington, D.C., was on the brief, for appellee.

Charles L. Reischel, Atty., E.E.O.C., with whom Julia P. Cooper, Chief Appellate Section, E.E.O.C., Washington, D.C., was on the brief, for Equal Employment Opportunity and amicus curiae urging reversal. Robert Fitzpatrick, Washington, D.C., also entered an appearance for E.E.O.C., as amicus curiae.

Before DANAHER, Senior Circuit Judge, and WRIGHT, and WILKEY, Circuit Judges.

DANAHER, Senior Circuit Judge:

This appellant in the district court had alleged that he was the victim of unlawful sex discrimination within the purview of 42 U.S.C. § 2000e-2(a). After a hearing, the district court on March 30, 1971, dismissed¹ the complaint as failing to state a claim entitling the appellant to relief and, therefore, did not reach the appellant's motion for a temporary restraining order. We affirm.

The appellant had submitted on affidavit attached to his complaint: That I wear my hair long, that is below the ears and below the collar in the back and styled in the vogue and fashion of the times in projection of my image of self and consistent with my consciousness of my peer group.²

The appellant was quite aware that, many months before, his employer had issued grooming regulations which, as to employees in its Technical Service Department, applied to haircuts, sideburns, mustaches, beards, suits, shirts, ties and shoes. The section dealing with "Haircuts" provided:

Hair will be neatly trimmed and combed. The length of the hair will taper down the back of the head and terminate above the collar. This eliminates any appearance of long hair.

The appellant's affidavit was countered, in support of the appellee's motion to dismiss, by the affidavit of one Richard Paugh, Manager of the Technical Services Branch of the National Cash Register Company which as we now paraphrase it

sets out that Fagan, trained at company expense, had been in the employ of the company since March 1967, had worked in Paugh\'s department since January, 1969, that Fagan\'s duties included "visiting the offices of customers of National Cash Register, particularly banks, for the purpose of service and repair of National Cash Register equipment, including bank proof machines, accounting machines, cash registers, adding machines and the like."

The employer in October, 1969, had received complaints from customers regarding the careless grooming of some company representatives, the Paugh affidavit continued. The employer\'s policy statement noted the company\'s receipt of comments from customers "regarding the extreme manner of dress and carelessness in grooming" which had been observed respecting some employees. "We must do everything we can to create a favorable impression on our customers and prospects. We simply cannot afford to have our employees do otherwise by their personal appearance."³

The employer\'s policy statement of 1969 was followed in April, 1970, by the adoption of the standards of grooming above noted. In December, 1970, the appellant was told by a superior that his hair style failed to conform to the company\'s requirement respecting its length. He was shown, and he also read, the outline of the company\'s position, and was then told to cut his hair or not to return to work the following Monday. He had his hair cut.

On March 22, 1971, the appellant was again told to conform to the company\'s position or not to return to work the next day. Following a conference on March 24, 1971, when the company\'s memorandum of April, 1970, was again read to him, the appellant telephoned to his attorney from the meeting, and the instant case was filed on March 24, 1971. The following day, March 25, 1971, the appellant met in the Technical Service Department with various officials and was told that he was suspended.

There are some 100 technical service employees in the Washington metropolitan area of whom none are women although there are no restrictions on the employment of both sexes.

So read the Paugh affidavit in substance.

The appellant now argues that the aid of a federal court is his right; indeed he claims he should prevail as a matter of law, and he has moved that summary judgment be entered in his favor. Moreover, he has told us on brief that there is no issue of material fact. Thus, he submits, he is entitled to judgment as he relies upon 42 U.S.C. §§ 1981, 1983, 2000e-2(a) and on the First, Ninth and Fourteenth Amendments to the Constitution of the United States.⁴

I

Fagan here has insisted upon his claim of right to wear his hair in a self-determined manner, indeed he contends that his employer's action constitutes an invasion of "liberties and privacy." To support his position he has cited to us various cases where some courts have stricken as invalid school board rules prescribing unacceptable hair length for students. Some of such cases have been based upon equal protection grounds, others have viewed "long hair" proscription as a denial of due process. Yet others have purported to see a deprivation of rights within the ambit of 42 U.S.C. § 1983.⁵

On the other hand, in yet other cases, no constitutional deprivation has been perceived.⁶ and no "rights" have been recognized as requiring or even as justifying the interposition of federal courts.

After the District Court in Karr v. Schmidt, 320 F.Supp. 728 (W.D.Tex. 1970), ruled that the local standard hair length regulation violated the due process and equal protection clauses, its judgment was stayed and Justice Black refused to vacate the stay. His memorandum, 401 U.S. 1201, 1202, 91 S.Ct. 592, 27 L.Ed.2d 797 (1971), reflected his view that the federal courts have no constitutional power to interfere with regulations promulgated by a public school system. The Fifth Circuit, en banc, 1972, 460 F.2d 609, not only reversed the District Court, but announced a per se rule directing the district courts thereafter to dismiss, forthwith, for failure to state a valid claim, a complaint which "merely alleges the constitutional invalidity of a high school hair and grooming regulation."⁷

A variant was next considered in Landsdale v. Tyler Jr. College, 470 F.2d 659, where the Fifth Circuit again sat en banc. The Court's opinion, October 4, 1972, noted that the college was a public institution of the State of Texas, to be sure, but distinguished the Karr holding since the State's right by regulation to intrude upon a personal liberty to wear long hair "stops at the college gate." The student is not required to go to college, but until that departure, the State was bound to educate him through high school. The numerous dissenting expressions reiterate previous views.

Chief Judge Brown, concurring in the majority Landsdale opinion, not only cited Judge Tuttle's memorandum in Sherling, supra, note 7, but emphasized Judge Wisdom's dissent in Karr, 460 F.2d at 619. There, after a bow in the direction of Mr. Justice Black's position, 401 U.S. 1201, 1202, 91 S.Ct. 592, 27 L.Ed.2d 797, supra, Judge Wisdom in note 1, expressed himself as "still unwilling to ascribe a similar view to the Supreme Court as a whole."

Whatever significance any of us ever may be wont to attach to the denial of certiorari, the Supreme Court "as a whole" denied certiorari as of November 6, 1972 in Karr v. Schmidt, 409 U.S. 989, 93 S.Ct. 307, 34 L.Ed.2d 256. By that time Karr, Landsdale, Sherling, Freeman, Olff, Jackson (see cases cited in note 6, supra) had been available to the Court. Only Mr. Justice Douglas had voted to grant certiorari,⁸ indeed it is clear from the cases cited in notes 5 and 6, supra, that a petitioner for cert. in these hair situations was to get nowhere—whether he had prevailed in the lower courts or not.

We may fairly assume this much, it would appear, the Supreme Court sees no federal question in this area. We are persuaded that the only basis upon which Fagan might predicate a claim must stem from 42 U.S.C. § 2000e-2(a)(1) and (2) to which we now turn.

II

Basically, throughout, the gravamen of Fagan's position has been that his employer unlawfully had discriminated against him because of his sex. Accordingly as a matter of convenience, we set out the pertinent portion of 42 U.S.C. § 2000e-2, Unlawful employment practices—Employer practices

(a) It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual ... because of such individual\'s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities ... because of such individual\'s ... sex ....

In Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), the Court found itself confronted with a question of first impression. It then explained at 429-430, 91 S.Ct. at 853:

The objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. (Emphasis added.)

The Court then at 431, 91 S.Ct. at 853 again emphasized:

Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed.⁹ (Emphasis added.)

True, the Court in Griggs was considering the problem of discrimination¹⁰ on ...