Harper v. Blockbuster Entertainment Corp. , 139 F.3d 1385 ( 1998 )

United States Court of Appeals,
Eleventh Circuit.
No. 97-4364.
Kenneth HARPER, Daniel Gomez, Abraham Del Carmen, Brian Russell, Plaintiffs-Appellants,
v.
BLOCKBUSTER ENTERTAINMENT CORPORATION, a Delaware corporation merged into
Viacom, Inc., Defendant-Appellee.
April 29, 1998.
Appeal from the United States District Court for the Southern District of Florida. (No. 96-2461-CV-
DLG), Donald L. Graham, Judge.
Before COX and CARNES, Circuit Judges, and MARCUS*, District Judge.
CARNES, Circuit Judge:
The plaintiffs in this case are four males formerly employed by Blockbuster Entertainment
Corp. ("Blockbuster"). They brought this suit against Blockbuster under Title VII and the Florida
Civil Rights Act alleging that Blockbuster's grooming policy discriminated against them on the basis
of their sex and that they were wrongfully terminated in retaliation for protesting that policy. After
the district court granted Blockbuster's motion to dismiss the plaintiffs' complaint, the plaintiffs
appealed. For the reasons discussed below, we affirm the district court's order dismissing plaintiffs'
complaint.
I. FACTS AND PROCEDURAL HISTORY
*
Honorable Stanley Marcus was a U.S. District Judge for the Southern District of Florida
sitting by designation as a member of this panel when this appeal was argued and taken under
submission. On November 24, 1997, he took the oath of office as a United States Circuit Judge
of the Eleventh Circuit.
For purposes of this appeal, we accept the allegations in plaintiffs' complaint as true. See
Harper v. Thomas, 988 F.2d 101, 103 (11th Cir.1993).
In May of 1994, Blockbuster implemented a new grooming policy that prohibited men, but
not women, from wearing long hair. The plaintiffs, all men with long hair, refused to comply with
the policy. They protested the policy as discriminatory and communicated their protest to
supervisory officials of Blockbuster. Two of the plaintiffs were the subject of media stories
concerning their protest of the policy. All of the plaintiffs were subsequently terminated by
Blockbuster because they had refused to cut their hair and because they had protested the grooming
policy.
The plaintiffs timely filed a charge with the Equal Employment Opportunity Commission
("EEOC"). After the EEOC issued right to sue letters, the plaintiffs filed a four-count complaint
alleging: (1) sex discrimination under Title VII, 42 U.S.C. §§ 2000e et seq. ("Title VII"); (2) sex
discrimination under the Florida Civil Rights Act of 1992, Fla. Stat. §§ 760.01 et seq. ("Florida
Civil Rights Act"); (3) unlawful retaliation under Title VII; and (4) unlawful retaliation under the
Florida Civil Rights Act.
Blockbuster moved to dismiss the complaint pursuant to F.R.C.P. 12(b)(6). The district court
granted the motion, and this appeal followed.
II. STANDARD OF REVIEW
We review de novo a dismissal for failure to state a claim. "The standard of review for a
motion to dismiss is the same for the appellate court as it was for the trial court." Stephens v. H.H.S.,
901 F.2d 1571, 1573 (11th Cir.1990). A motion to dismiss is only granted when the movant
demonstrates "beyond doubt that the plaintiff can prove no set of facts in support of his claim which
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would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80(1957).
III. DISCUSSION
A. COUNT I: THE TITLE VII SEX DISCRIMINATION CLAIM
The plaintiffs allege that Blockbuster's grooming policy discriminates on the basis of sex
in violation of Title VII. In Willingham v. Macon Telegraph Pub. Co., 507 F.2d 1084, 1092 (5th
Cir.1975) (en banc), our predecessor Court held that differing hair length standards for men and
women do not violate Title VII, a holding which squarely forecloses the plaintiffs' discrimination
claim. See Bonner v. City of Prichard, 661 F.2d 1206, 1209-1210 (11th Cir.1981). Accordingly,
the district court correctly dismissed Count I.
B. COUNT II: THE FLORIDA CIVIL RIGHTS ACT SEX DISCRIMINATION CLAIM
The plaintiffs also allege that Blockbuster's grooming policy discriminates on the basis of
sex in violation of the Florida Civil Rights Act.
The Florida courts have held that decisions construing Title VII are applicable when
considering claims under the Florida Civil Rights Act, because the Florida act was patterned after
Title VII. See Ranger Ins. Co. v. Bal Harbour Club, Inc., 549 So.2d 1005, 1009 (Fla.1989); Florida
State Univ. v. Sondel, 685 So.2d 923, 925 n. 1 (Fla.Dist.Ct.App.1996); Gray v. Russell Corp., 681
So.2d 310, 312 (Fla.Dist.Ct.App.1996); see also Paris v. City of Coral Gables, 951 F.Supp. 1584,
1585 (S.D.Fla.1995); Kelly v. K.D. Construction of Fla., Inc., 866 F.Supp. 1406, 1411
(S.D.Fla.1994). No Florida court has interpreted the Florida statute to impose substantive liability
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where Title VII does not.1 Therefore, for the same reasons the complaint fails to state a sex
discrimination claim under Title VII, it fails to state a sex discrimination claim under the Florida
Civil Rights Act. The district court correctly dismissed Count II.
C. COUNT III: THE TITLE VII RETALIATION CLAIM
The plaintiffs allege that they were discharged by Blockbuster in retaliation for protesting
Blockbuster's grooming policy. To establish a prima facie case of retaliation under Title VII, a
plaintiff must demonstrate: (1) that he engaged in statutorily protected activity; (2) that he suffered
adverse employment action; and (3) that the adverse employment action was causally related to the
protected activity. See, e.g., Coutu v. Martin County Bd. of County Comm'rs, 47 F.3d 1068, 1074
(11th Cir.1995). A plaintiff engages in "statutorily protected activity" when he or she protests an
employer's conduct which is actually lawful, so long as he or she demonstrates "a good faith,
reasonable belief that the employer was engaged in unlawful employment practices." Little v.
United Technologies, Carrier Transicold Division, 103 F.3d 956, 960 (11th Cir.1997). However,
it is insufficient for a plaintiff "to allege his belief in this regard was honest and bona fide; the
allegations and record must also indicate that the belief, though perhaps mistaken, was objectively
reasonable." Id.The reasonableness of the plaintiffs' belief in this case is belied by the unanimity with which
the courts have declared grooming policies like Blockbuster's non-discriminatory. Every circuit to
1
Plaintiffs cite Andujar v. National Property & Casualty Underwriters, 659 So.2d 1214(Fla.Dist.Ct.App.1995), to suggest that the Florida Civil Rights Act may have different
substantive standards than Title VII. Noting that Title VII and the Florida Civil Rights Act are
product of different sovereigns, the Andujar Court held that a judgment under Title VII does not
preclude, under the doctrine of res judicata, a later judgment under the Florida Civil Rights Act.
See id. at 1216-17. However, the court did not hold that the two statutes have different
substantive standards for imposing liability.
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have considered the issue has reached the same conclusion reached by this Court in the Willingham
decision. See Longo v. Carlisle DeCoppet & Co., 537 F.2d 685, 685 (2d Cir.1976); Earwood v.
Continental Southeastern Lines, Inc., 539 F.2d 1349, 1351 (4th Cir.1976); Barker v. Taft
Broadcasting Co., 549 F.2d 400, 401 (6th Cir.1977); Knott v. Missouri Pac. R.R. Co., 527 F.2d
1249, 1252 (8th Cir.1975); Baker v. California Land Title Co., 507 F.2d 895, 898 (9th Cir.1974);
Dodge v. Giant Food, Inc., 488 F.2d 1333, 1336 (D.C.Cir.1973).2 The EEOC initially took a
contrary position, but in the face of the unanimous position of the courts of appeal that have
addressed the issue, it finally "concluded that successful litigation of male hair length cases would
be virtually impossible." EEOC Compliance Manual, § 619.1 (Bureau of Nat'l Affairs, Inc.1996).
Accordingly, the EEOC ran up a white flag on the issue, advising its field offices to administratively
close all sex discrimination charges dealing with male hair length. See id.
Nonetheless, the plaintiffs contend that three decisions of the United States Supreme Court,
decided after Willingham, made it reasonable to believe that Blockbuster's grooming policy violates
the mandate of Title VII. However, as we will discuss below, none of the cases cited by the plaintiffs
call into question the continuing validity of Willingham; therefore, the plaintiffs' belief that
Blockbuster's grooming policy violated Title VII's prohibition against sex discrimination was not
reasonable.
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The plaintiffs also argue that when judging the reasonableness of their belief, we should not
charge them with substantive knowledge of the law as set forth in Willingham and the cases cited
above. We reject the plaintiffs' argument because it would eviscerate the objective component of
our reasonableness inquiry. See Little, 103 F.3d at 960. If the plaintiffs are free to disclaim
knowledge of the substantive law, the reasonableness inquiry becomes no more than speculation
regarding their subjective knowledge.
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The plaintiffs first point us to UAW v. Johnson Controls, Inc., 499 U.S. 187, 111 S.Ct. 1196,
113 L.Ed.2d 158 (1991). In Johnson Controls, the Court held that a company's policy of prohibiting
women capable of bearing children from working in battery manufacturing jobs was facially
discriminatory.3 Id. at 198, 111 S.Ct at 1203. That holding, however, is entirely consistent with the
Willingham Court's holding, and thus, fails to advance plaintiffs' argument. See Willingham, 507
F.2d at 1091-92 (holding that distinctions between men and women on the basis of fundamental
rights such as the right to bear children constitute discrimination on the basis of sex under Title VII).
The plaintiffs also rely on Newport News Shipbuilding and Dry Dock Co. v. EEOC, 462 U.S.
669, 103 S.Ct. 2622, 77 L.Ed.2d 89 (1983), and City of Los Angeles, Dep't of Water and Power v.
Manhart, 435 U.S. 702, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978), to support their position. In
Manhart, the Court held that a policy requiring female employees to make larger contributions to
an employee pension fund than their male counterparts was discriminatory. See Manhart, 435 U.S.
at 711, 98 S.Ct. at 1377. The Court stated: "Such a practice does not pass the simple test of whether
the evidence shows treatment of a person in a manner which but for that person's sex would be
different." Id. (internal quotation omitted). In Newport News, the Court applied the test from
Manhart to an employer's policy of providing lesser health benefits to the spouses of male
employees than to the spouses of female employees, and concluded that the policy was
discriminatory. See Newport News, 462 U.S. at 683, 103 S.Ct. at 2631. The plaintiffs argue that the
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The Court went on to hold that the company's policy did not constitute a bona fide
occupational qualification ("BFOQ"). See Johnson Controls, 499 U.S. at 204, 111 S.Ct. at 1206.
However, that portion of the court's decision is not relevant here, because we are not faced with
the question of whether Blockbuster's grooming policy constituted a BFOQ.
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application of the "but-for" test in Manhart and Newport News, undermines the Willingham Court's
analysis and conclusions. We disagree for two reasons.
First, the policies at issue in Newport News and Manhart related to employee health and
pension benefits. The existence and extent of such benefits bear directly on employment
opportunity. Because health and pension benefits frequently represent a crucial component of an
employee's compensation, the practical effect of denying or reducing such benefits on the basis of
sex is to deny the employee an "employment opportunity" on the basis of sex. In contrast, the
grooming policy at issue in Willingham "related more closely to the employer's choice of how to run
his business than to equality of employment opportunity." 507 F.2d at 1091. Reasoning that Title
VII was intended to "guarantee equal job opportunity for males and females," we concluded in
Willingham that the grooming policy did not constitute sex discrimination. Id. Therefore, the
Supreme Court's holdings in both Newport News and Manhart are consistent with the reasoning and
conclusions of the Willingham Court. See Tavora v. New York Mercantile Exchange, 101 F.3d 907,
908 (2d Cir.1996).
Second, the discrimination at issue in Newport News and Manhart was discrimination based
on sex alone. The Newport News and Manhart plaintiffs could not avoid the effects of the
discriminatory policies; they received lesser benefits simply because of their sex. Because the
discriminatory policies in those cases were aimed at a single immutable characteristic—the
plaintiffs' sex—a simple "but for" test effectively identified forbidden discrimination. In contrast,
the alleged discrimination at issue in Willingham was between members of the same sex based on
the neutral characteristic of hair length. The Willingham plaintiff was denied employment because
he chose not to cut his hair; however, males in general were not prohibited from working for the
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defendant. Consequently, applying the "but-for" test from Newport News and Manhart to a
Willingham-type situation does not effectively identify forbidden discrimination, i.e., discrimination
that deprives members of a given sex of equal employment opportunity. The "but-for" test is
appropriate only where alleged discrimination is based on sex alone. Therefore, the Supreme Court's
use of that test in Newport News and Manhart does not affect the analysis or conclusions of the
Willingham Court.
The plaintiffs chose to protest Blockbuster's grooming policy despite the existence of
long-standing binding precedent holding that such a policy was not discriminatory. No decision
cited by the plaintiffs has supplanted the reasoning or called into question the conclusions set forth
in that binding precedent. Therefore, we hold that the plaintiffs could not have had an objectively
reasonable belief that Blockbuster's grooming policy discriminated against them on the basis of their
sex. Accordingly, the district court correctly dismissed the plaintiffs' Title VII retaliation claim.
D. COUNT IV: THE FLORIDA CIVIL RIGHTS ACT RETALIATION CLAIM
The plaintiffs allege that Blockbuster violated the Florida Civil Rights Act by retaliating
against them for protesting its grooming policy. As discussed above, decisions construing Title VII
guide the analysis of claims under the Florida Civil Rights Act. Accordingly, because the plaintiffs
cannot maintain a retaliation claim under Title VII, we conclude that the district court correctly
dismissed the plaintiffs' Florida Civil Rights Act retaliation claim.
IV. CONCLUSION
For the reasons set forth above, we AFFIRM the district court's order dismissing the
plaintiffs' complaint.
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