                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-9-2004

Storey v. Burns Intl Security
Precedential or Non-Precedential: Precedential

Docket No. 03-2246




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                                        PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT

                       No: 03-2246

               CURTIS BLAINE STOREY,

                                                 Appellant
                             v.

   BURNS INTERNATIONAL SECURITY SERVICES

        Appeal from the United States District Court
         for the Western District of Pennsylvania
              (Civil Action No. 02-cv-00621)
          District Judge: Hon. David S. Cercone

                 Argued: February 9, 2004

                 (Filed: December 9, 2004)

  Before: SCIRICA, Chief Judge, and ROTH and McKEE,
Circuit Judges.

KIRK D. LYONS (argued)
Southern Legal Resources Center
P.O. Box 1235
1114 Montreat Road, Suite #1
Black Mountain, NC 28711

                             1
Attorney for Appellant

FRED G. PRESSLEY, JR.
JOHN M. STEPHEN (argued)
Porter, Wright, Morris & Arthur
41 South Street, 29th Floor
Columbus, OH 43215
Attorneys for Appellee

                 OPINION OF THE COURT

McKEE, Circuit Judge.

        Curtis Blaine Storey, a former employee of Burns
International Security Services, filed this action under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.,
alleging that Burns discharged him because of his national
origin and religion. The “national origin” claim is based on his
self-proclaimed identity as a “Confederate Southern-American”
and his display of the Confederate battle flag in the workplace.
As we explain below, his religion claim arises from the same
claimed identity, and the design of the Confederate flag. The
district court granted Burns’ motion to dismiss based upon that
court’s conclusion that Storey did not claim to be a member of
a class protected under Title VII, and because the record failed
to support any claim of religious discrimination. However, we
need not address the delicate intricacies of the merits of either
claim because we conclude that Storey does not claim to have
suffered an “adverse employment action” within the meaning of
Title VII. Accordingly, he fails to state a claim upon which
relief can be granted, and we will therefore affirm the district

                                2
court’s dismissal of his complaint. 1

                        I. Background

       Until April 30, 2001, Storey was employed as a security
guard at the Sony plant located in Newton Station, Pennsylvania.
He had worked as a security guard for more than ten years, but
only became an employee of Burns in January 2001, when
Burns purchased the company that previously employed him.
App. 28 (Complaint ¶ 8).

        In August 1998, Storey placed a 2½” by 2½” Confederate
flag sticker on his lunch box, and put two Confederate flag
bumper stickers on his pickup truck. One bumper sticker
included the slogan, “The South Was Right,” and the other
proclaimed, “Heritage not Hate.” App. 29 (Complaint ¶ 9).

       Later, Jason Schneider and Tim Pratt, two of his
supervisors at Burns, told Story that Burns was about to
implement a “diversified hiring program,” and that Storey would
have to remove his Confederate flag stickers. When Storey
refused, they explained that Sony and Burns had a “zero
tolerance” policy with respect to the display of Confederate
symbols. App. 29 (Complaint ¶ 11).


       1
          An appellate court may affirm a result reached by the
district court for reasons that differ from the conclusions of the
district court if the record supports the judgment. Guthrie v.
Lady Jane Collieries, Inc., 722 F.2d 1141, 1145 n. 1 (3d
Cir.1983).

                                3
      Storey was subsequently ordered to report to Burns
headquarters in Pittsburgh, where four unnamed supervisors
attempted to convince him to remove or cover his stickers
because other employees might be offended by them. Storey
responded that, as a Christian, he was offended by things that
occurred at work (particularly the use of profanity by other
employees), but he accepted it as something he had to deal with.
App. 29-30 (Complaint ¶¶ 11-12).

       The next day, another Burns employee told Storey that
the company had concluded that Storey had voluntarily resigned.
Storey stated that he had not resigned and reported to work the
following day. However, the guard at the front gate of the plant
would not allow Storey to enter the facility, and a captain of the
security guards told Storey that he had been terminated because
of the Confederate stickers. App. 30 (Complaint ¶ 13).

        Storey subsequently filed a discrimination charge with
the Equal Employment Opportunity Commission, alleging that
Burns terminated him based on his national origin, “Confederate
Southern-American” and religion, Christian. App. 34. After
conducting an investigation and finding no basis for relief under
Title VII, the EEOC issued a “right to sue” letter, and Storey
filed the instant claim in federal district court. App. 35. The
district court eventually dismissed Storey’s complaint pursuant
to Federal Rule of Civil Procedure 12(b)(6), finding that
“Confederate Southern American” did not qualify as a national
origin under Title VII, and that Storey had not established that
his display of a Confederate flag was essential to maintaining a



                                4
sincerely held religious belief. This appeal followed.2

        We have jurisdiction pursuant to 28 U.S.C. § 1291. Our
review of the district court’s dismissal of Storey’s complaint is
plenary. “A motion to dismiss pursuant to Rule 12(b)(6) may be
granted only if, accepting all well-pleaded allegations in the
complaint as true, and viewing them in the light most favorable
to the plaintiff, plaintiff is not entitled to relief.” Oatway v.
American Intern. Group, Inc, 325 F.3d 184, 187 (3d Cir. 2003)
(citation and internal quotation marks omitted).

                        II. Discussion

       Title VII prohibits employment discrimination based on
national origin 3 or religion.4 42 U.S.C. § 2000e-2(a)(1). As we


       2
         Storey also alleged that Burns discriminated against
him because of his race. The district court also dismissed that
claim, but it is an issue on appeal.
       3
         “National origin” usually “refers to the country where
a person was born, or, more broadly, the country from which his
or her ancestors came.” Espinoza v. Farah Mfg. Co., Inc., 414
U.S. 86, 88 (1973). In come cases, however, courts have been
willing to expand the concept of “national origin” to include
claims from persons such as cajuns or serbs based upon the
unique historical, political and/or social circumstances of a
given region. See Pejic v. Hughes Helicopters, 840 F.2d 667
(9th Cir. 1988) and Roach v. Dresser Industrial Valve and
Instrument Division, 494 F. Supp. 215, 218 (D. La. 1980), and

                               5
noted at the outset, Storey’s Title VII claims stem from his self-
proclaimed identity as a “Confederate Southern-American.” 5



Kanaji v. Children’s Hospital of Philadelphia, 276 F. Supp. 2d
399, 401 (E.D. Pa., 2003) .
       4
        The term “religion” as used in Title VII includes all
aspects of religious observance, practice, and belief in the
workplace. 42 U.S.C. § 2000e(j).
       5
          Although Storey maintains that his national identity
claim arises from his status as a “Confederate Southern-
American,” it is more realistic and accurate to view his claim as
that of a “Confederate White-American.” Viewing his claim in
that manner does not alter our analysis, but it does allow a more
accurate context both for his claim, and for the employer’s
concerns.
        Symbols can have a practical function; they are
        not merely aesthetic images. They can be used
        for strategic social effect–for the easily
        recognized assertion of political messages. The
        significance of a governmental symbol is
        connected to the state and its ethos. One of the
        Confederacy’s key beliefs, as its Constitution
        readily asserted, was the interminable white man’s
        right to own black slaves. The battle flag of the
        Confederacy, then, [can be interpreted as] an
        exclusionary message that stigmatizes blacks as
        outsiders of the political community.
Alexander Tsesis, The Problem of Confederate Symbols: A

                                6
First, he argues that “Confederate Southern-American” is a valid
national origin under Title VII because members of this group
share a common culture and history of persecution dating back
to the civil war era. App. 29-30 (Complaint ¶¶ 10, 14).6 Storey
also argues that the Confederate flag is a religious symbol
because it incorporates the cross of Saint Andrew, a venerated




Thirteenth Amendment Approach, 75 Temp. L. Rev. 539, 557
(2002) (footnotes omitted). See generally Robert J. Cottrol, The
Long Lingering Shadow: Law, Liberalism, and Cultures of
Racial Hierarchy and Identity in the Americas, 76 Tul. L. Rev.
11 (2001).
       6
       In his complaint, Storey states:
             The ancestors of Confederate Southern-
             Americans have been bequeathed a precious
             heritage of honor, chivalry and Christian virtues
             to their descendants. Confederate Southern-
             Americans bear the scars of a people victimized
             and nearly destroyed by total war, loss of civil
             rights, living in ‘conquered provinces’ under
             reconstruction and a persecution that continues to
             the present day. Confederate Southern-Americans
             endured a persecution similar to that suffered by
             the Highland Scots under English rule after the
             Jacobite uprising of 1745, or the Acadians of
             Canada.
App. 29-30 (Complaint ¶ 10).

                               7
religious symbol.7 He claims that displaying that symbol is
similar to displaying a traditional cross or the Star of David.
App. 31 (Complaint ¶ 15).8 However, before addressing the
merits of Storey’s two claims, we must first determine if he has
alleged an “employment action” under Title VII. 9

          Under the familiar McDonnell Douglas burden shifting
test, 10 a Title VII plaintiff bears the initial burden of establishing
a prima facie case of discrimination by a preponderance of the
evidence. Texas Dept. of Community Affairs v. Burdine, 450




       7
         St. Andrew’s cross is a diagonal or x-shaped cross. It
is also incorporated into the national flag of Scotland. Peter
Williams, The Biography of St. Andrew, Patron Saint of
Scotland         (visited        August        30,    2004)
<http://www.britannia.com/bios/saints/andrew.html>.
       8
         Storey also states that the cross on the Confederate flag
can be interpreted as the Greek letter “X,” an ancient symbol for
Christ. App. 31 (Complaint ¶ 15).
       9
         For the sake of argument, we will assume that
“Confederate Southern-American” is a valid national origin, and
that the Confederate flag has some religious significance for
members of this group.
       10
         See McDonnell Douglas Corp. v. Green, 411 U.S. 792,
93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

                                  8
U.S. 248, 252-53 (1981). 11 Although the prima facie elements
of a discrimination claim vary depending on the particular facts
of the case, Sarullo v. U.S. Postal Service, 352 F.3d 789, 797-98
(3d Cir. 2003) (per curiam), the plaintiff must generally present
evidence that “raises an inference of discrimination.”
Swierkiewicz v. Sorema N. A., 534 U.S. 506, 510 (2002)
(citations omitted). At the pleading stage, however, the plaintiff
need only set forth “a short and plain statement of the claim
showing that the pleader is entitled to relief” as required by
Federal Rule of Civil Procedure Rule 8(a)(2). Id. at 508.

       In order to be entitled to relief, a plaintiff must have
suffered a cognizable injury. Thus, only a person “claiming to
be aggrieved” may bring an action under Title VII. See 42
U.S.C. § 2000e-5.12 We have defined “an adverse employment
action” under Title VII as an action by an employer that is


       11
          If the plaintiff is able to establish a prima facie case of
discrimination, the burden then shifts to the employer to provide
a legitimate, nondiscriminatory explanation for the adverse
employment action. Should the employer meet this burden, the
plaintiff must then prove by a preponderance of the evidence
that the explanation offered by the employer is a pretext for
discrimination. See Burdine, 450 U.S. at 253.
       12
         Section 2000e-5(b) provides that “a person claiming to
be aggrieved” may file a charge with the EEOC. If the charge
is dismissed or the agency does not act within a specified time
period, “a civil action may be brought . . . by the person
claiming to be aggrieved.” § 2000e-5(f)(1)

                                 9
“serious and tangible enough to alter an employee’s
compensation, terms, conditions, or privileges of employment.”
Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir. 2001) (quoting
Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir.
1997).

        That definition stems from the language of Title VII
itself. The statute provides: “It shall be an unlawful
employment practice for an employer . . . to fail or refuse to hire
or to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42
U.S.C. § 2000e-2(a)(1) (emphasis added). An employer’s
failure to reasonably accommodate an employee’s sincerely held
religious belief that conflicts with a job requirement can also
amount to an adverse employment action unless the employer
can demonstrate that such an accommodation would result in
“undue hardship.” See Shelton v. University of Medicine &
Dentistry of New Jersey, 223 F.3d 220, 224 (3d Cir. 2000); see
also 42 U.S.C. § 2000e(j). Storey’s complaint fails to meet even
these minimal pleading requirements.

      Although Storey’s complaint speaks of being discharged
because of his national origin and religion, Storey concedes that
he was fired because he refused to cover or remove his
Confederate flag symbols when his employer told him to. App.




                                10
29 (Complaint ¶¶ 11-13). 13 The record reflects that, had Storey
complied, he would not have been terminated. Rather, he would
have continued working for Burns as a “Confederate, Southern
American” and Christian. Therefore, even if we assume
arguendo that he is a member of a protected class and if we
further accept the claim that the Confederate flag may be viewed
as a religious symbol, Storey still has not established a cause of
action.

        Although Storey attempts to alchemistically spin the
discharge into illegal employment discrimination under Title
VII, it is clear that he is not alleging that he was discharged
because of his claimed national origin or his religion.
Moreover, Storey does not argue that the employer was ever
aware of the religious symbolism he attaches to the Confederate
flag. In fact, before he was terminated, his employer tried to
convince him to cover or remove his stickers during work so
that he could remain an employee despite his claimed national
origin and religion.

        Nothing in Storey’s complaint suggests that Burns’
requirement conflicted with a sincerely held belief that was
endemic to his professed national origin or religion claims. By
his own account, Storey only “displayed these stickers because
he is proud of being a Confederate Southern-American” and “is
interested in sharing his passion for his heritage with others,”


       13
         In fact, Storey alleges the security guard captain told
him that “he had been fired because of his stickers.” App. 30
(Complaint ¶ 13).

                               11
App. 29 (Complaint ¶ 9). He does not claim that anything
fundamental to his national origin or religion requires display of
confederate symbols. His personal need to share his heritage
can not be equated with something endemic to national origin or
a religiously mandated observance, and he does not argue
otherwise. Compare Swartzentruber v. Gunite Corp., 99 F.
Supp.2d 976, 978, 979 (granting summary judgment, in part,
because plaintiff, a member of the Church of the American
Knights of the Ku Klux Klan, failed to submit any evidence that
his employer’s requirement that he cover up a tattoo depicting
a “hooded figure standing in front of a burning cross” conflicted
with his religious beliefs), with Fraternal Order of Police
Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (finding
that a police department’s ban on facial hair was
unconstitutional when applied to Sunni Muslim officers because
their religion required that they grow beards); and Protos v.
Volkswagen of America, Inc., 797 F.2d 129, 134 (3d Cir. 1986)
(finding that plaintiff established a prima facie case of religious
discrimination, in part, because her “religion forbade her to
work on Saturdays.”).14

       Accordingly, we will affirm the district court’s dismissal
of Storey’s complaint. 15


       14
          We do not suggest that the display of a religious or
cultural symbol can never implicate Title VII’s ban on religious
and national origin discrimination.
       15
         In doing so, we note the concerns expressed by Judge
Gregory in Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 822-23

                                12
                         III. Conclusion

        Based on the foregoing analysis, we will affirm the
district court’s dismissal of Storey’s complaint pursuant to Rule
12(b)(6).

SCIRICA, Chief Judge, Concurring.

       I agree with much of the Court’s opinion and join in
affirming the dismissal of Storey’s complaint, but I believe


(4th Cir. 2004) (en banc) (Gregory J., concurring). There, Judge
Gregory hypothesized that, in an extreme case, display of certain
symbols could expose an employer to a hostile work
environment claim under Title VII.
        Moreover, common sense suggests that such problems
are not readily resolved merely because symbols such as a
Confederate flag may be accompanied with slogans such as
“heritage not hate,” because a symbol’s significance often lies
“in the eye of the beholder.”
        [T]o its supporters at the time of its creation as well as
        some proponents today . . . the Confederate flag
        undeniably represented, and represents, support for
        slavery, . . . and opposition to the Republic . . . . . . . .
        Against this historical backdrop, it becomes more
        apparent why co-workers might feel offended, harassed
        and even threatened by the Confederate battle flag in the
        workplace, even if those who display the flag do so with
        no ill will.
Id. at 824.

                                 13
Storey’s discharge constituted an “adverse employment action.”
An “adverse employment action” is one that is “‘serious and
tangible enough to alter an employee’s compensation, terms,
conditions, or privileges of employment.’” Cardenas v. Massey,
269 F.3d 251, 263 (3d Cir. 2001) (quoting Robinson v. City of
Pittsburgh, 120 F.3d 1286, 1300 (3d Cir. 1997)). Termination
of employment constitutes an “adverse employment action” for
purposes of Title VII. Abramson v. William Patterson College
of N.J., 260 F.3d 265, 288 (3d Cir. 2001).

        In his complaint, Storey claimed that Burns discharged
him because of his national origin and religion in violation of 42
U.S.C. § 2000e-2(a)(1). In seeking damages for lost wages,
Storey stated that he “has been fired from his job” as a result of
“Defendant’s discriminatory actions.” On a motion to dismiss,
we accept all factual allegations as true and draw all reasonable
inferences in favor of the plaintiff. Nami v. Fauver, 82 F.3d 63,
65 (3d Cir. 1996). Based on this standard, Storey’s allegation
that he was discharged because of his national origin and
religion sets forth an adverse employment action required to
state a Title VII claim.

       Even so, Storey has failed to state a prima facie case for
national origin discrimination under Title VII. To do so, Storey
must establish that: (1) “Confederate Southern-American” is a
protected national origin classification; (2) he was qualified to
perform his job; and (3) he was fired under circumstances that
give rise to an inference of unlawful discrimination. See

                               14
Waldron v. SL Industries, Inc., 56 F.3d 491, 494 (3d Cir. 1995)
(citing Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253
(1981)). I agree with the District Court that Storey failed to
satisfy the first prong because “Confederate Southern-
American” is not a legitimate national origin classification for
Title VII purposes.

        “National origin” refers to the “country where a person
was born, or, more broadly, the country from which his or her
ancestors came.” Espinoza v. Farah Mfg. Co., Inc., 414 U.S. 86,
88 (1973). Following Espinoza, the few courts that have
considered the issue directly have rejected “national origin”
claims based on Confederate or Southern American heritage.
See, e.g., Chaplin v. Du Pont Advance Fiber Sys., 293 F. Supp.
2d 622, 628 (E.D. Va. 2003) (finding “Confederate-American”
not a protected class under Title VII); Williams v. Frank, 757 F.
Supp. 112 (D. Mass. 1991) (“Southernness is not a protected
trait”). While Storey is correct that neither United States birth
nor citizenship necessarily precludes a national origin
discrimination claim, it does not follow that “Confederate
Southern-American” is a valid national origin class under Title
VII. Where one cannot trace ancestry to a nation outside of the
United States, a former regional or political group within the
United States, such as the Confederacy, does not constitute a
basis for a valid national origin classification.16


       16
          Storey contends the Confederate States were “separate,
distinct and identifiable in the same way that France or Japan is

                               15
        For the reasons stated by the Court, Storey also has failed
to state a religious discrimination claim under Title VII. 17 As



separate and identifiable for a period of years,” and therefore
Confederate Southern-American constitutes a “national origin.”
The Supreme Court has stated the Civil War was “not between
independent nations, but between different portions of the same
nation.” Dow v. Johnson, 100 U.S. 158, 164 (1879). See also,
Black’s Law Dictionary 1614 (8th ed. 2004) (defining “civil
war” as “an internal armed conflict between people of the same
nation,” including “the war from 1861 to 1865”) (emphasis
added). For an individual whose ancestors’ nation of origin
existed in North America before the United States, however, a
proper national origin classification may be possible. See, e.g.,
Dawavendewa v. Salt River Project Agric. Improvement &
Power Dist., 154 F.3d 1117, 1120 (9th Cir. 1998) (“Because the
different Indian tribes were at one time considered nations, and
indeed still are to a certain extent, discrimination on the basis of
tribal affiliation can give rise to a ‘national origin’ claim[.]”).
       17
         To state a prima facie case for religious discrimination
under Title VII, Storey must establish the following: he held a
bona fide religious belief that conflicted with an employment
requirement; he informed the employer of this belief; and he was
disciplined for failing to comply with the conflicting
employment requirement. Shelton v. Univ. of Med. & Dentistry
of N.J., 223 F.3d 220, 224 (3d Cir. 2000). Once an employee
establishes a prima facie case, an employer may defend by
demonstrating that it has offered the employee “reasonable
accommodation” or that the accommodation sought cannot be

                                16
the Court notes, Storey failed to state a prima facie case because
he failed to inform his employer that he held a religious belief
that conflicted with an employment requirement. Specifically,
he did not inform his employer that displaying the Confederate
flag had any relation to his religious beliefs or observances.18

       Therefore, I concur in the result.




accomplished without undue hardship. United States v. Bd. of
Ed. For Sch. Dist. of Phila., 911 F.2d 882, 886-87 (3d Cir.
1990).
       18
         As the District Court correctly noted, Storey’s
complaint did not contend that he displayed the stickers for
religious reasons, but “because he is proud of being a
Confederate Southern-American. He comes from a Southern
family, and is interested in sharing his passion for his heritage
with others.” [JA 3-4]

                               17
