                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-10-2007

Francis v. Mineta
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1293




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                                         PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT

                       No: 06-1293

                   ALBION FRANCIS,

                             Appellant

                              v.

             NORMAN Y. MINETA;
 TRANSPORTATION SECURITY ADMINISTRATION;
    U.S. DEPARTMENT OF TRANSPORTATION;
          UNITED STATES OF AMERICA

    Appeal from the District Court of the Virgin Islands
                 (Civil No. 03-cv-00039)
         District Judge: Hon. Raymond L. Finch

                Argued: December 6, 2006

Before: McKEE, BARRY and STAPLETON, Circuit Judges,

                 (Filed; October 10, 2007)
VINCENT A. COLIANNI, ESQ. (Argued)
Colianni & Colianni
1138 King Street
Christiansted, VI 00820
Attorneys for Appellant

PETER D. KEISLER, ESQ.
Assistant Attorney General
ANTHONY J. JENKINS, ESQ.
United States Attorney
MARLEIGH D. DOVER, ESQ.
MATTHEW M. COLLETTE, ESQ. (Argued)
Attorneys, Appellate Staff
Civil Division
Department of Justice
Washington, D.C. 20530
Attorneys for Appellees

                           OPINION

McKEE, Circuit Judge.

       Albion Francis, a former federal employee, appeals the

District Court’s dismissal, pursuant to Fed.R.Civ.P. 12(b)(1), of

the employment discrimination claim he attempted to bring

under the Religious Freedom Restoration Act, 42 U.S.C. §§

2000bb-2000bb-4. The District Court held that it lacked subject

                               2
matter    jurisdiction   over   Francis’s   claim   of   religious

discrimination because any such claim must be brought under

Title VII of the Civil Rights Act of 1964. The District Court

also held that the action must be dismissed for lack of subject

matter jurisdiction because Francis failed to exhaust his

administrative remedies under Title VII.        See 42 U.S.C. §

20003-16(c).

         We disagree with the District Court’s finding that it did

not have subject matter jurisdiction. It had federal question

subject matter jurisdiction under 28 U.S.C. § 1331. However,

because we “may affirm a result reached by a District Court on

different reasons, as long as the record supports the judgment,”

Brumfield v. Sanders, 232 F.3d 376, 379 n.2 (3d Cir. 2000)

(citation omitted), we will affirm as a dismissal under

Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which



                                 3
relief can be granted.1

As we explained in Robinson v. Dalton, 107 F.3d 1018, 1021-22

(3d Cir. 1997):

         Although the district court in this case described
         its preliminary evaluation as “jurisdictional,” this
         court has previously determined that questions of
         whether a plaintiff has timely exhausted the
         administrative remedies in Title VII actions “are
         in the nature of statutes of limitation. They do not
         affect the district court's subject matter
         jurisdiction.” Moreover, in Title VII cases courts
         are permitted in certain limited circumstances to
         equitably toll filing requirements, even if there
         has been a complete failure to file, which
         necessarily precludes characterizing such
         requirements as “jurisdictional.”


     1
      “In considering a Motion to Dismiss pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure, the Court
accepts as true all allegations in the Plaintiff’s Complaint and all
reasonable inferences that can be drawn therefrom after
construing them in the light most favorable to the non-movant.”
Bright v. Westmoreland County, 380 F.3d 729, 735 (3d Cir.
2004) (citation omitted). “Dismissal is not proper unless it
clearly appears that no relief can be granted under any set of
facts that could be proved consistently with the plaintiff’s
allegations.” Id. (citation and internal quotations omitted).

                                  4
       It follows that the . . . motion to dismiss should
       have been treated under Rule 12(b)(6).

(citations omitted).

               I. FACTUAL BACKGROUND

       In    2001,     Congress   enacted   the   Aviation   and

Transportation Security Act, Pub. L. No. 107-71, 115 Stat. 597

(2001), creating a federal workforce to screen passengers and

cargo at the nation’s commercial airports. Am. Fed’n of Gov’t

Employees v. Loy, 367 F.3d 932, 934 (D.C. Cir. 2004).

Pursuant to the authority contained in that Act, the

Transportation Security Administration (“TSA”) assumed

responsibility for security screening in the nation’s commercial

airports.2


       2
        Pursuant to the Department of Homeland Security
Reorganization Plan (Nov. 25, 2002), as required by Section
1502 of the Department of Homeland Security Act of 2002,
Pub. L. No. 107-296, 116 Stat. 2135 (2002), TSA was
                                               (continued...)

                                  5
       In October 2002, TSA hired Albion Francis as a security

screener at the Henry E. Rohlsen Airport in St. Croix, U.S.

Virgin Islands.    Francis is an African-American male who

wears his hair in dreadlocks, which he declares to be “an

important expression of [his] sincerely held religious beliefs.”

       All new TSA employees are required to undergo forty

hours of classroom training and sixty hours of on-the-job

training.   On October 20, 2002, TSA’s new transportation

screeners in the Virgin Islands, including Francis, began their

training at the Rohlsen Airport. Prior to administering the oath

of employment to the screeners, Deputy Federal Security

Director Lawrence Londer told the new screeners that they were

part of a uniformed service and were therefore subject to the


   2
    (...continued)
transferred from the Department of Transportation to the
Department of Homeland Security, effective March 1, 2003.


                               6
mandatory grooming policy that TSA had established for its

uniformed employees.        Londer stated that if this policy

presented a problem to anyone, he/she should not take the oath

of employment. He then administered the oath of employment

to those present, including Francis.

       At an orientation session approximately one week later,

TSA screening manager Steven Betz noticed that three

screeners, including Francis, had hairstyles that did not conform

to the agency’s grooming policy, and he informed them that they

had to conform to that policy.

       Francis alleges that he informed Betz that he would not

cut his dreadlocks, and told him that the refusal to cut his

dreadlocks was based on his religious beliefs. Francis further

alleges that Betz then ordered him to sign a separation

agreement, terminating his employment. Thereafter, Francis

filed the instant suit in the District Court.

                                 7
         II. DISTRICT COURT PROCEEDINGS

       Francis asserts a cause of action for religious

discrimination under the Religious Freedom Restoration Act

(“RFRA”),3 42 U.S.C. §§ 2000bb-2000bb-4. He named as

defendants: Norman Y. Mineta, the then - Secretary of

Transportation; the Department of Transportation; the TSA;

and the United States. The one-count complaint alleges that

TSA fired him because he refused to comply with TSA’s

grooming policy. It also alleges that the grooming policy, as

applied to him, violates RFRA because it substantially burdens

his sincerely held religious beliefs without furthering any




   3
    The RFRA applies only to the federal government. In City
of Boerne v. Flores, 521 U.S. 507 (1997), the Supreme Court
held that the Act was unconstitutional, as applied to the states,
under section 5 of the Fourteenth Amendment.

                               8
compelling governmental interest.4

       The Government moved to dismiss based on lack of

subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1). The

Government argued that Title VII of the Civil Rights Act of

1964 is the exclusive remedy for asserting claims of federal

employment discrimination. The Government also argued that

the suit should be dismissed because Francis had not exhausted

his administrative remedies.

       In granting the Government’s motion to dismiss, the

District Court held that the comprehensive and exclusive

remedial scheme of Title VII precludes Francis’s attempt to

obtain redress under RFRA. The District Court also agreed that

Francis was required to administratively exhaust his claim as


   4
     Francis sought compensatory damages, reinstatement and
injunctive relief against the enforcement of the grooming policy,
as well as attorneys’ fees and costs.


                               9
provided in Title VII. This appeal followed.

                        III. DISCUSSION

       As noted above, Francis claims that his dreadlocks have

religious significance and that TSA’s grooming policy

substantially burdens his free exercise of religion because it

forces him to remove the dreadlocks despite their religious

significance. Francis argues that the policy can not be applied

to him under RFRA unless the Government can demonstrate that

it furthers a compelling governmental interest. He relies upon

the following provisions of RFRA:

       § 2000bb-1. Free exercise of religion protected

       (a) In general

       Government shall not substantially burden a
       person’s exercise of religion even if the burden
       results from a rule of general applicability, except
       as provided in subsection (b) of this section.

       (b) Exception


                               10
       Government may substantially burden a person’s
       exercise of religion only if it demonstrates that
       application of the burden to the person --

       (1) is in furtherance of a compelling governmental
       interest; and

       (2) is the least restrictive means of furthering that
       compelling governmental interest.

42 U.S.C. § 2000bb-1(a)-(b).

       Francis also claims that the plain text of RFRA “clearly

gives [him] and other federal employees a right to sue under the

statute.” He points to two subsections to support his claim: (1)

§ 2000bb(b)(2) (stating that one of the purposes of RFRA is “to

provide a claim or defense to persons whose religious exercise

is substantially burdened by government.”); and (2) § 2000bb-

1(c) (“A person whose religious exercise has been burdened in

violation of this section may assert that violation as a claim or

defense in a judicial proceeding and obtain appropriate relief

against a government. Standing to assert a claim or defense

                                11
under this section shall be governed by the general rules of

standing under article III of the Constitution.”).

       We can best respond to Francis’s reliance on RFRA by

reiterating the background of that statute. In Adams v. Comm’r

of Internal Revenue, we explained: “[i]n enacting RFRA,

Congress specifically announced its intent to ‘restore’ the

‘compelling interest’ test set forth in Sherbert v.Verner and

Wisconsin v. Yoder . . . and ‘to guarantee its application in all

cases where free exercise of religion is substantially

burdened[.]’” 170 F.3d 173, 176 (3d Cir. 1999) (quoting 42

U.S.C. § 2000bb(b)(1)).

       Under the compelling interest test, the Supreme Court

had traditionally held that laws that substantially burden the free

exercise of religion must be supported by a compelling interest

to survive scrutiny under the First Amendment. However, in

1990, the Supreme Court decided Employment Div., Dep’t of

                                12
Human Res. v. Smith, 494 U.S. 872 (1990). There, the Supreme

Court held that the Free Exercise Clause did not require Oregon

to exempt the sacramental ingestion of peyote by members of

the Native American Church from Oregon’s criminal drug laws.

 Id. at 877-82.    The Court concluded that such generally

applicable laws may be applied to religious exercise even in the

absence of a compelling governmental interest. Id. at 884-89.

Congress responded by enacting RFRA.

       Enacted in 1993, RFRA applies to “all Federal law” and

the implementation of that law, “whether statutory or

otherwise,” adopted both before and after the passage of RFRA.

42 U.S.C. § 2000bb-3(a). Despite the apparent limitless scope

of RFRA, Congress was careful to circumscribe its reach.

Accordingly, in a section captioned “Other Areas of Law are

Unaffected,” the Senate Report on RFRA states: “[a]lthough the

purpose of this act is only to overturn the Supreme Court’s

                              13
decision in Smith, concerns have been raised that the act could

have unintended consequences and unsettle other areas of law.”

S. Rep. No. 103-111, at 12 (1993), as reprinted in 1993

U.S.C.C.A.N. 1879, 1902. The Report then discusses a number

of areas that are not affected by RFRA, including Title VII. It

explains: “[n]othing in this act shall be construed as affecting

religious accommodation under title VII of the Civil Rights Act

of 1964.” Id. at 13, as reprinted in 1993 U.S.C.C.A.N. at 1903.

The House Report on RFRA contains nearly identical language.

See H.R. Rep. No. 103-88, at 9 (1993).

       It is not surprising that nothing in RFRA alters the

exclusive nature of Title VII with regard to employees’ claims

of religion-based employment discrimination. Nothing in pre-

Smith case law permitted an employee alleging employment

discrimination based on religion to bypass Title VII’s exclusive

and comprehensive scheme. Accordingly, since RFRA was only

                              14
enacted to overturn Smith and restore pre-Smith case law, the

Senate Report merely clarifies that Congress did not intend

RFRA to subsume other statutory schemes.

       Francis claims the District Court erred in considering this

legislative history and disregarding the plain language of RFRA.

However, as we shall discuss, the plain text of RFRA does not

necessarily advance our inquiry because, according to Francis,

RFRA subsumes the prohibition on employment discrimination

that is the hallmark of Title VII. Thus, to the extent that there is

any ambiguity about RFRA’s impact on Title VII, legislative

history becomes a useful and appropriate tool for our inquiry

into congressional intent. See In re Mehta, 310 F.3d 308 (3d Cir.

2002). Even a cursory examination of the text of Title VII

reveals that RFRA’s legislative history can guide that inquiry.

       Title VII of the Civil Rights Act of 1964 makes it “an

unlawful employment practice for an employer . . . to discharge

                                15
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 . . .

religion[.]” 42 U.S.C. § 2000e-2(a)(1). Section 2000e(j) of

Title 42 defines “religion” to include “all aspects of religious

observance and practice, as well as belief, unless an employer

demonstrates that he is unable to reasonably accommodate to an

employee’s or prospective employee’s religious observance or

practice without undue hardship on the conduct of the

employer’s business.”    In enacting this provision, Congress

clearly intended to make it unlawful “for an employer not to

make reasonable accommodations, short of undue hardship, for

the religious practices of his employees and prospective

employees.” Trans World Airlines, Inc. v. Hardison, 432 U.S.

63, 74 (1977).

       In 1972, Congress extended Title VII’s protection to

                              16
federal employees. 42 U.S.C. § 2000e-16 provides that “[a]ll

personnel actions affecting employees or applicants for

employment” in military departments, executive agencies, and

several specified governmental entities “shall be made free from

any discrimination based on race, color, religion, sex or national

origin.” Thereafter, the Supreme Court held that Title VII is the

“exclusive, pre-emptive administrative and judicial scheme for

the redress of federal employment discrimination.” Brown v.

GSA, 425 U.S. 820, 829 (1976).5 Title VII thus sweeps within

its reach all claims of employment discrimination whether they

are based on religion or another enumerated form of

discrimination that may impact a constitutionally protected right.

As we explained in Owens v. United States, “[i]nterpretation of


    5
     Because Title VII’s protections were extended to federal
employees, federal employees complaining of employment
discrimination became subject to Title VII’s administrative
exhaustion requirements. Brown, 425 U.S. at, 833.

                               17
Title VII has shown that Title VII . . . ‘precludes actions against

federal officials for alleged constitutional violations as well as

actions under other federal legislation.’” 822 F.2d 408, 410 (3d

Cir. 1987) (quoting Kizas v. Webster, 707 F.2d 524, 542 (D.C.

Cir. 1983)).

       Francis’s complaint alleges, inter alia, that in firing him

for not cutting his dreadlocks, the TSA violated his right to

freely exercise his religion. He claims that he was terminated

because his religious practice (wearing dreadlocks) was

inconsistent with TSA’s grooming policy. He is suing because

that policy failed to accommodate his religiously-based conduct.

But that is an attempt to use RFRA to force the TSA to

accommodate wearing dreadlocks because they have religious

significance. The legislative history that we have discussed

demonstrates that Congress did not intend RFRA to create a

vehicle for allowing religious accommodation claims in the

                                18
context of federal employment to do an end run around the

legislative scheme of Title VII.6 The Supreme Court framed the

issue before it in Brown, as follows: “[i]s . . . the Civil Rights

Act of 1964, . . . [as amended,] the exclusive individual remedy

available to a federal employee complaining of job-related racial

discrimination?” 425 U.S. at 824-25. It is equally clear that

Title VII provides the exclusive remedy for job-related claims

of federal religious discrimination, despite Francis’s attempt to

rely upon the provisions of RFRA.

                               III.

         One matter remains. Because the District Court found

that Title VII precludes Francis’s RFRA claim, it also held that

Francis was required to exhaust administrative remedies under

Title VII. See 42 U.S.C. § 20003-16(c); Brown, 425 U.S. at


     6
     The Government concedes that the conduct alleged by
Francis clearly falls within the purview of Title VII.

                               19
832-33. Since Francis did not exhaust his remedies, the District

Court dismissed his claim. Francis claims that was error and

insists that his “RFRA claim” is not subject to the exhaustion

requirements of Title VII. However, as we have explained, his

claim is not a RFRA claim; rather, it is a Title VII claim and

Title VII requires exhaustion.

                                 IV.

       Accordingly, the order of the District Court dismissing

Francis’s complaint will be affirmed.7




  7
   Judge Stapleton concurs, but writes separately to discuss this
claim of employment discrimination based on religion. We do
not disagree with his discussion.

                                 20
            STAPLETON, Circuit Judge, concurring.
 In my view, resolution of the issue before us requires only a
  straightforward application of Supreme Court precedent.
   Francis’s argument is foreclosed by the Supreme Court’s
ruling in Brown v. General Services Administration, 425 U.S.
   820 (1976). By its terms, 42 U.S.C. § 2000bb-1(c) would
   seem to provide Mr. Francis with a cause of action. That
   statute, however, is in tension with § 717 of Title VII, 42
     U.S.C. § 2000e-16, which imposes several procedural
      requirements on a federal employee raising claims of
    employment discrimination that must be met before the
employee can sue in federal district court. In Brown, 425 U.S.
 at 829, the Supreme Court held that Title VII provides “the
exclusive, pre-emptive administrative and judicial scheme for
    the redress of federal employment discrimination,” and,
    accordingly, Brown (the plaintiff in that case) could not
enforce his right under 42 U.S.C. § 1981 to be free from racial
  employment discrimination without resort to that exclusive
              administrative and judicial scheme.

 The Court gave two reasons for its holding in Brown. First,
    given the detail and comprehensiveness of the remedial
scheme in § 717 of Title VII, the Court held that § 717 should
 supersede more general statutes under the canon of statutory
 interpretation that resolves tension between specific statutes
 and general statutes in favor of specific statutes. Id. at 834-
 35. (“The balance, completeness, and structural integrity of
 § 717 are inconsistent with the petitioner’s contention that §
   717(c) was designed merely to supplement other putative
    judicial relief.”). Second, the Court explained that as a
   practical matter the entire Title VII remedial scheme for

                              21
 federal employees would be undermined if a plaintiff could
   circumvent its procedural requirements by “the simple
expedient of putting a different label on the pleadings.” Id. at
833. Twice this term, the Supreme Court has cited Brown for
both of the general principles explained therein. See Hinck v.
  United States, 127 S. Ct. 2011, 2015 (2007); EC Term of
 Years Trust v. United States, 127 S. Ct. 1763, 1767 (2007).

Both principles applied in Brown are equally applicable here,
     and they compel us to hold that Francis can enforce his
    religious discrimination claim only through resort to the
   administrative and judicial scheme created by Title VII..
First, RFRA’s remedial statute is general, while Title VII’s is
comprehensive and specific. Although it does not appear that
 any court of appeals has yet addressed the effect of Title VII
 on RFRA, our court and others have applied Brown in other
 similar contexts, holding that Title VII requires compliance
 with its remedial scheme whenever a government employee
    seeks to enforce a right created by another statute that is
secured by Title VII as well. See, e.g., Ford v. West, 222 F.3d
    767, 772-73 (10th Cir. 2000) (“Plaintiff’s [42 U.S.C.] §
     1985(3) Fifth Amendment equal protection claim fails,
   however, because the Supreme Court has clearly held that
       Title VII provides the exclusive judicial remedy for
    discrimination claims in federal employment”); Rivera-
   Rosario v. U.S. Dep’t of Agric., 151 F.3d 34, 38 (1st Cir.
   1998) (rejecting plaintiff’s claim under the Back Pay Act
   because “The Supreme Court has indicated that where the
  gravamen of the claim is Title VII discrimination, the only
    remedy available is under Title VII.”); Owens v. United
  States, 822 F.2d 408, 410 (3d Cir. 1987) (“Interpretation of

                              22
Title VII has shown that Title VII provides federal employees
  a remedy that “precludes actions against federal officials for
alleged constitutional violations as well as actions under other
  federal legislation.”); Gissen v. Tackman, 537 F.2d 784, 786
     (3d Cir. 1976) (en banc) (applying Brown to foreclose a
  plaintiff’s claims under 42 U.S.C. § 1985).8 Second, as was
 the case in Brown, if we allow Francis’s claim to go forward,
  it would undermine the Title VII administrative and judicial
         scheme for federal employees claiming religious
  discrimination. Federal employees like Francis, who allege
 religious discrimination, would have no need to exhaust their
     administrative remedies under Title VII if they could go
directly to federal court with identical claims framed as RFRA
     claims. Brown, 425 U.S. at 833 (“Under the petitioners
    theory, by perverse operation of a type of Gresham's law,
        § 717, with its rigorous administrative exhaustion
    requirements and time limitations, would be driven out of
currency were immediate access to the courts under other, less
                demanding statutes permissible.”).



     8
       As the Supreme Court noted in Brown, the canon of
statutory interpretation that favors specific statutes over general
statutes when the two are in tension applies regardless of the
order of enactment of the statutes. Brown, 425 U.S. at 834-35
(citing cases). In Owens, we applied Brown to hold that Title
VII foreclosed remedies otherwise available under § 1983,
which was enacted after Title VII. It is therefore of no
consequence that RFRA was enacted in 1993, while § 717 of
Title VII was enacted in 1972.

                                23
     The language in RFRA providing that it applies to “all
  Federal law” and the implementation of that law, “whether
statutory or otherwise,” adopted before or after the passage of
 RFRA, 42 U.S.C. § 2000bb-3(a), is not inconsistent with this
 conclusion. While “all Federal law” must include Title VII,
  to say that RFRA “applies” to Title VII does not mean that
    RFRA must be interpreted to create an exception to the
    procedural requirements of Title VII, such that it would
   effectively supplant § 717 of Title VII whenever a federal
employee alleges religious discrimination and could otherwise
proceed under Title VII. Precisely how RFRA may “apply” to
 Title VII is not now before us, and it is enough to hold that it
       does not absolve Francis from complying with the
       requirements of Title VII’s “exclusive, preemptive
 administrative and judicial scheme for the redress of federal
     employment discrimination.” Brown, 425 U.S. at 829.

  Following Brown, I would hold, as the majority does, that
Francis’s claim was properly dismissed under Fed. R. Civ. P.
                         12(b)(6).




                               24
