390 F.

3d 760

Curtis Blaine STOREY, Appellant

v.
BURNS INTERNATIONAL SECURITY SERVICES.
No. 03-2246.

United States Court of Appeals, Third Circuit.

Argued February 9, 2004.
December 9, 2004.

Kirk D. Lyons (argued), Black Mountain, NC, for Appellant.

Fred G. Pressley, Jr., John M. Stephen (argued), Porter, Wright, Morris &
Arthur, Columbus, OH, for Appellee.
Before SCIRICA, Chief Judge, and ROTH and McKEE, Circuit Judges.
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 selfproclaimed 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 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 2 1/2" by 2 1/2" 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).

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 sincerely held religious belief.

This appeal followed.2

8

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
9

Title VII prohibits employment discrimination based on national origin3 or

religion.4 42 U.S.C. 2000e-2(a)(1). As we noted at the outset, Storey's Title
VII claims stem from his self-proclaimed identity as a "Confederate SouthernAmerican." 5 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
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

10

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 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207
(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, 122 S.Ct. 992, 152 L.Ed.2d 1 (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, 122 S.Ct. 992.

11

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 "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)).
12

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.

13

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. 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.

14

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.

15

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," 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
16

Accordingly, we will affirm the district court's dismissal of Storey's

complaint.15

III. Conclusion
17

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

Notes:
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
judgmentGuthrie v. Lady Jane Collieries, Inc., 722 F.2d 1141, 1145 n. 1 (3d
Cir.1983).

Storey also alleged that Burns discriminated against him because of his race.
The district court also dismissed that claim, but it is not an issue on appeal

"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, 94 S.Ct. 334, 38 L.Ed.2d 287 (1973). In
some 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 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)

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 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).

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).

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 >.

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)

For the sake of argument, we will assume that "Confederate SouthernAmerican" 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).

11

If the plaintiff is able to establish aprima 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, 101 S.Ct. 1089.

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)

13

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

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 inDixon v.

Coburg Dairy, Inc., 369 F.3d 811, 822-23 (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.
18

SCIRICA, Chief Judge, Concurring.

19

I agree with much of the Court's opinion and join in affirming the dismissal of
Storey's complaint, but I believe 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 Paterson College of
N.J., 260 F.3d 265, 288 (3d Cir.2001).

20

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.

21

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
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, 101 S.Ct. 1089, 67
L.Ed.2d 207 (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.

22

"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, 94 S.Ct. 334, 38 L.Ed.2d 287 (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

23

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

24

Therefore, I concur in the result.

Notes:
16

Storey contends the Confederate States were "separate, distinct and identifiable
in the same way that France or Japan is 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, 25 L.Ed. 632 (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
requirementShelton 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 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]