Case: 1:13-cv-476 As of: 01/24/2019 01:32 PM CST 1 of 4
CLOSED2014,R26
U.S. District Court Southern District of Alabama (Mobile) CIVIL DOCKET FOR CASE #: 1:13−cv−00476−CB−M

Equal Employment Opportunity Commission v. Catastrophe Management Solutions Assigned to: Senior Judge Charles R. Butler, Jr Referred to: Magistrate Judge Bert W. Milling, Jr Case in other court: 11th Circuit, 14−13482 Cause: 42:2000 Job Discrimination (Race)
Plaintiff

Date Filed: 09/30/2013 Date Terminated: 03/27/2014 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Defendant

Equal Employment Opportunity Commission

represented by C. Emanuel Smith EEOC Birmingham District Office Ridge Park Place, Ste. 2000 1130 22nd Street South Birmingham, AL 35205 205−212−2131 Fax: 205−212−2041 Email: Emanuel.Smith@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie Bean 1130 22nd Street South, Suite 2000 Birmingham, AL 35205 205−212−2076 Email: julie.bean@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marsha Lynn Rucker Equal Employment Opportunity Commission Ridge Park Place, Suite 2000 1130 S 22nd Steet South Birmingham, AL 35205 205−212−2046 Email: marsha.rucker@eeoc.gov ATTORNEY TO BE NOTICED

V. Defendant Catastrophe Management Solutions

represented by David J. Middlebrooks Lehr Middlebrooks & Vreeland, P.C. P. O. Box 11945 Birmingham, AL 35202−1945 205−326−3002 Email: dmiddlebrooks@lehrmiddlebrooks.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Whitney Ryan Brown Lehr Middlebrooks & Vreeland, P.C. P.O. Box 11945 Birmingham, AL 35202 205−326−3002 Email: wbrown@lehrmiddlebrooks.com LEAD ATTORNEY

Case: 1:13-cv-476 As of: 01/24/2019 01:32 PM CST 2 of 4 ATTORNEY TO BE NOTICED

Date Filed 09/30/2013
11/08/2013 11/08/2013
11/25/2013
11/25/2013 12/12/2013 12/12/2013 12/12/2013
12/13/2013
12/13/2013
01/06/2014 01/08/2014
01/16/2014 01/22/2014 01/23/2014
01/24/2014 02/10/2014 02/10/2014 03/27/2014

# Docket Text
1 COMPLAINT against Catastrophe Management Solutions , filed by Equal Employment Opportunity Commission. (Bean, Julie) Modified on 10/1/2013 (adk). (Additional attachment(s) added on 11/15/2013: # 1 Civil Cover Sheet) (clr). (Entered: 09/30/2013)
2 NOTICE of Filing Proposed Summons by Equal Employment Opportunity Commission (Smith, C.) (Entered: 11/08/2013)
3 Summons Issued as to Catastrophe Management Solutions. Note to Counsel: The Summons have been issued. Please print copies necessary for service. (eec) (Entered: 11/08/2013)
4 SUMMONS Returned Executed by Equal Employment Opportunity Commission. Catastrophe Management Solutions served on 11/22/2013, answer due 12/13/2013. (Smith, C.) (Entered: 11/25/2013)
5 NOTICE of Appearance by Marsha Lynn Rucker on behalf of Equal Employment Opportunity Commission (Rucker, Marsha) (Entered: 11/25/2013)
6 Corporate Disclosure Statement filed by Defendant Catastrophe Management Solutions. (Middlebrooks, David) (Entered: 12/12/2013)
7 MOTION to Dismiss by Catastrophe Management Solutions. (Middlebrooks, David) (Entered: 12/12/2013)
8 Document endorsed NOTED by Magistrate Judge Bert W. Milling, Jr: Corporate Disclosure Statement 6 filed by Catastrophe Management Solutions (Milling, Bert) (Entered: 12/12/2013)
9 Order Setting Motion Deadline re: 7 MOTION to Dismiss filed by Catastrophe Management Solutions. Responses due by 1/9/2014. Signed by Senior Judge Charles R. Butler, Jr on 12/13/2013. copies to parties. (sdb) (Entered: 12/13/2013)
10 PRELIMINARY SCHEDULING ORDER entered. Rule 26 Meeting Report due by 1/27/2014. Signed by Magistrate Judge Bert W. Milling, Jr on 12/13/2013. copies to parties. (sdb) (Entered: 12/13/2013)
11 MOTION for Extension of Time by Equal Employment Opportunity Commission. (Rucker, Marsha) (Entered: 01/06/2014)
12 ENDORSED ORDER granting 11 Motion for Extension of Time Response to Motion due by 1/16/2014. Signed by Senior Judge Charles R. Butler, Jr on 1/8/2014. (aen) (Entered: 01/08/2014)
13 Memorandum in Opposition re 7 MOTION to Dismiss filed by Equal Employment Opportunity Commission. (Rucker, Marsha) (Entered: 01/16/2014)
14 REPORT of Rule 26(f) Planning Meeting . (Rucker, Marsha) (Entered: 01/22/2014)
15 Order ( Initial Disclosures Due 2/7/2014) Clerk shall notify once a ruling is made on the motion to dismiss. Signed by Magistrate Judge Bert W. Milling, Jr on 1/23/2014. (adk) (Entered: 01/23/2014)
16 REPLY Brief filed by Defendant Catastrophe Management Solutions re: 7 MOTION to Dismiss filed by Catastrophe Management Solutions. (adk) (Entered: 01/27/2014)
17 Notice of Filing Initial Disclosures filed by Equal Employment Opportunity Commission. (Rucker, Marsha) (Entered: 02/10/2014)
18 Notice of Filing Initial Disclosures filed by Catastrophe Management Solutions. (Middlebrooks, David) (Entered: 02/10/2014)
19 ORDER granting 7 Motion to Dismiss. Signed by Senior Judge Charles R. Butler, Jr on 3/27/2014. (adk) (Entered: 03/27/2014)

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03/27/2014 04/17/2014 04/17/2014 04/28/2014 05/05/2014 05/05/2014
05/12/2014 06/02/2014 06/11/2014 06/16/2014 08/01/2014
08/04/2014
08/04/2014
08/05/2014 08/07/2014 08/11/2014
09/15/2016 12/13/2016

20 JUDGMENT in favor of Catastrophe Management Solutions against Equal Employment Opportunity Commission. Signed by Senior Judge Charles R. Butler, Jr on 3/27/2014. (adk) (Entered: 03/27/2014)
21 MOTION to Amend Complaint 1 Complaint by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A−Proposed Amended Complaint) (Rucker, Marsha) (Entered: 04/17/2014)
22 Memorandum in Support re 21 MOTION to Amend Complaint 1 Complaint filed by Equal Employment Opportunity Commission. (Rucker, Marsha) (Entered: 04/17/2014)
23 RESPONSE in Opposition re 21 MOTION to Amend Complaint 1 Complaint filed by Catastrophe Management Solutions. (Middlebrooks, David) (Entered: 04/28/2014)
24 MOTION for Extension of Time to File Response/Reply by Equal Employment Opportunity Commission. (Rucker, Marsha) (Entered: 05/05/2014)
25 ENDORSED ORDER granting 24 Motion for Extension of Time to File Response/Reply re 24 MOTION for Extension of Time to File Response/Reply Replies due by 5/12/2014.. Signed by Senior Judge Charles R. Butler, Jr on 5/5/2014. (aen) (Entered: 05/05/2014)
26 REPLY to 21 MOTION to Amend Complaint 1 Complaint filed by Equal Employment Opportunity Commission. (Rucker, Marsha) (Entered: 05/12/2014)
27 ORDER denying 21 Motion to Amend Complaint. Signed by Senior Judge Charles R. Butler, Jr on 6/2/2014. (adk) (Entered: 06/02/2014)
28 Unopposed MOTION Entry of Final Order by Equal Employment Opportunity Commission. (Rucker, Marsha) (Entered: 06/11/2014)
29 ORDER denying 28 Motion. Signed by Senior Judge Charles R. Butler, Jr on 6/16/2014. (adk) (Entered: 06/16/2014)
30 NOTICE OF APPEAL as to 20 Judgment, 19 Order on Motion to Dismiss, 29 Order on Motion for Miscellaneous Relief, 27 Order on Motion to Amend Complaint by Equal Employment Opportunity Commission. ( IFP.) (Rucker, Marsha) (Entered: 08/01/2014)
31 Appeal Instructions for Marsha Rucker, Esq., re: 30 Notice of Appeal : The Civil Appeal Statement Form is available on the Internet at www.ca11.uscourts.gov. Transcript Information Form to be filed no later than 8/14/2014. (Note: no hearings). (jal) (Entered: 08/04/2014)
32 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re: 20 Judgment, 19 Order on Motion to Dismiss, 29 Order on Motion for Miscellaneous Relief, 27 Order on Motion to Amend Complaint Judge Appealed: Judge Butler, Court Reporter: No Hearings, Fee Paid: EEOC (jal) (Entered: 08/04/2014)
33 TRANSCRIPT INFORMATION FORM filed by Equal Employment Opportunity Commission re: 30 Notice of Appeal. (Rucker, Marsha) (Entered: 08/05/2014)
34 NOTICE of Docketing Record on Appeal from USCA re 30 Notice of Appeal filed by Equal Employment Opportunity Commission. USCA Case Number 14−13482−D (jal) (Entered: 08/11/2014)
Pursuant to F.R.A.P. 11(c), the Clerk of the District Court for the Southern District of Alabama certifies that the record is complete for purposes of this appeal re: 30 Notice of Appeal, Appeal No. 14−13482−D. The entire record on appeal is available electronically, (jal) (Entered: 08/11/2014)
35 OPINION/ORDER of USCA as to 30 Notice of Appeal filed by Equal Employment Opportunity Commission, AFFIRMED (Mandate to issue at a later date.) (jal) (Entered: 09/19/2016)
36 REVISED OPINION/ORDER of USCA as to 30 Notice of Appeal filed by Equal Employment Opportunity Commission, WITHDRAWING 9/15/16 OPINION, AFFIRMED. (Mandate to issue at a later date.) (jal) (Entered: 12/14/2016)

Case: 1:13-cv-476 As of: 01/24/2019 01:32 PM CST 4 of 4

12/13/2017

37 MANDATE of USCA re: 30 Notice of Appeal filed by Equal Employment Opportunity Commission Mandate issued 14−13482; USCA Case Number 14−13482. (srd) (Entered: 12/14/2017)

 
 —.—
Case 1:13-cv-00476-CB-M Document 1 Filed 09/30/13 Page 1 of 5

tNT lIE UNITS) STATES L)ISTRICT COURT FOR TIlE SOUFIIERN DISTRICT OF ALABAMA
SFLMA DIVISION

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION,

)

)

Plaintiff,

)

V.

CATASTROPHE MANAGEMENT

)

SOLI.UTIONS

CASE NO. 1: 13-cv-0476-CB-M
COMPLAINT JURY DEMAND

Defendant.

)

NATURE OF THE ACTION This is an action brought under Ti!le VII of the Civi Rinhts Ac! of 1963. as amended. 42 USC. 2000e q xu. We VIITh, and Title I of the Ci i Rights Act of I 991 to correct unlawlul employment ractices on the basis of race I black) and to proxicte appropriate relief to Chastity C. Jones who was adversely affected by the unlawful practices. Specifically, Plaintiff US. Equal Employment Opportunity Commission alleges that Defendant Catastrophe Management Solulions (‘‘Catastrophe’’) maintained a racially discriminator’ policy of prohibiting employees ifOfli wearing oreadlocks and enforced the pol cv against Chast iv C - Jones by withdrawing an offer ol employment when she refused to comply with the polic

JURISDICTION AND VENUE

I

Jurisdiction of this Court is invoked pursuant to 2$ USC. §* 451. 1331, 1337,

1343. and 1345. ihis action is authoriied and instituted pursuant to Sections “(JOt fBI and

Case 1:13-cv-00476-CB-M Document 1 Filed 09/30/13 Page 2 of 5

of Title VII of the Civil Rights Act of 1964. as amended. 42 U.S.C. § 200Cc. 5 fl( 1) and (3)
‘1 ide V 11Th and Section lU2 oftheCivil Rights Act of 1001.42 U.S.C. lOXIa.

2.

ilic eniplovinent practices alleged to he unlawliti herein were committed w’thin

the jurisdiction of the United States District Court lhr the Southern District of Al abaina. Selma

Division.

PARTIES

3

Plainti II. US. Equal Employment Oppor unity Commission (the Commission’’),

is the agency of the United States ol America charged with the administration, interpretation, and

enforcement of Title VII. and is expressly authorized to bring this action by Section 706(fl(l)

and (3)of Title Vi!. 42 U.S .C. § 2000e—5 (1). (I) and (3’).

4.

At all relevant times, Defendant Cal astrophie has conti nuouslv been doing

business in the State of:\Iabama. in the Cdv of Mobile and at all relevant times had at least

Ii heen (15) employees.

5.

At all relevant times. Defendant Employer has continuously been and employer

enuagec! ni an industry aflèctint commerce within the meaning of 701(h). (g) and (Ii) of Title

VII, 42 U.S.C. §*200Oe(h), (g) and (h).

STATEMENTOFCLAIMS

6.

More than 30 day’s prior to the institution of this lawsuit, Chastity C. Jones tiled a

charge ot discrim i nan on with the Commission alleging violations of Ti tie VI] h> Defendant

Catastrophe, .\ll conditions precedent to the tiling ot tIns lasuit ha\ c been titIfilled.

7.

Si nec on or about May 201 0. Defendant Catastrophe has enu;iued in unlawful

emplo>ancnt practices at its Mobile. Alabama location in violation of 42 t. S.C. 2000e—2( a)t I

2

Case 1:13-cv-00476-CB-M Document 1 Filed 09/30/13 Page 3 of 5

and 42 S.C. § 2000&2(m) by implementing a policy that prohibited employees 1mm wearing

dreadloeks and enforcing that policy against (hastily C. Jones.

S.

Deflmdant’s policy states as lollow 5:

‘All
-

personnel

are expected to he dresed

and

groomed

ma

nanner that

prot eels a

pm tessional ann husinessl ke image while adhering to company and industry

standards and or guidelines . hairstx Ic should reilcet a businesspro tessional -

tnage.No excessive hairstyles or unusual colors are acceptable.

0,

I)efln’idant interpreted its po cv to prohibit dreadi,oeks.

It). Defendant conditioned the employment of Chastity C. Jones m her cutting oil her

dreadloeks. and then withdrew the otThr ofeinplovment when she declined.

I . Defendant’s application of its p1u cv to prohibit dreadlocks constitutes an

employment practice that diseri ninates on the basis of race, black.

12. The effect of the practices complained of above has been to deprive

Chastity C. Jones of equal employment opportunities and to otherwise adversely afIet

her status as an employee because of her race (black).

13. The unlawful employment practices complained of above were intentional.

1 4. The unlawful employment practices complained of above were done with malice

or reckless indifference to the federally proiected rights of Chastity C. Jones.

PRAYER FOR RELIEF WI TEREFOREE. the Commission respecilbllv requests that this Court:
• Grant a permanent injunction enoi ning the Defnidant Catastrophe N I anagement
Solutions. it_s owners. oliccrs. successors. assigns and all persons in active concert or litpmion with it. hum engaging in an\ employment practice which discriminates against blacks, by suhjectinu them to disparate terms and conditions ol’emplo>ment
3

Case 1:13-cv-00476-CB-M Document 1 Filed 09/30/13 Page 4 of 5
13. Order Defendant Catastrophe N lananement Solutions to institute and earn out policies, practices ,and programs which provide equal employment opportuiliti es lbr all ciii iO}CCS. and which eradicate the effects of its past and present unlawful
employment practices.
C. Order Defendant to make whole Chastity C. Jones. hx providing appropriate hack pa with pre—j udument interest, in amounts to be determined at trial. aml other a flirmative relief necessary to eradicate the effects of its unlawful emplo mciii practices. including hut not limited to reinstatement and. or ho nt av.
D. Order Defendant Catastrophe Management Solutions to pa> Chastity C Jones, ptinitive damages f& its malicious and reckless conduct in an amount to he determined at trial.
E. Grant such further relief as the Court deems necessary and proper in the public
interest.
F Award the Commission us costs in this action.
4

Case 1:13-cv-00476-CB-M Document 1 Filed 09/30/13 Page 5 of 5

JURY TRIAL DEMAND

llie

Commission

requests

a jury

trial

on

all

questions

of

lact

nil sed

Nv

its

complaint -

RESPECTFULLY SURNIEFFED.
P. DAVID LOPEZ General Counsel
JAMES L. LEE Depii’tv General Counsel
G\VENDOLYN YOUNG REAMS Associate General Counsel Equal Employment Opportunity Coiriiriission 131 M Street P. Washington. D.C. 20507
C. EMANUEL SNITTII Regional Attorney Mississippi Bar 7473
J JULIE BEAN Supervisory Trial Attorney 13G. Barr 433292
Equal limp lovnient Opportunit\ Comm ssion Birminuham Di strict 0111cc Ridge Park Place. Suite 201)1) 1130 22 ad Street S ou (Ii Birminuham. AL 3 52( )5 (205) 212-2045

5
I

 
 Case 1:13-cv-00476-CB-M Document 19 Filed 03/27/14 Page 1 of 10

IN	  THE	  UNITED	  STATES	  DISTRICT	  COURT	  FOR	  THE	  

SOUTHERN	  DISTRICT	  OF	  ALABAMA	  

SOUTHERN	  DIVISION	  

	  

	  

	  

	  

EQUAL	  EMPLOYMENT	  	   	  

	  

)	  

OPPORTUNITY	  COMMISSION,	   	  

)	  

	  

	  

	  

	  

	  

	  

)	  

	  

	  

	  

Plaintiff,	   	  

)	  

	  

	  

	  

	  

	  

	  

)	  

v.	   	  

	  

	  

	  

	  

)	   CIVIL	  ACTION	  NO.	  13-­‐00476-­‐CB-­‐M	  

	  

	  

	  

	  

	  

	  

)	  

CATASTROPHE	  MANAGEMENT	   	  

)	  

SOLUTIONS,	   	  

	  

	  

	  

)	  

	  

	  

	  

	  

	  

	  

)	  

	  

	  

	  

Defendant.	   	  

)	  

	  

OPINION	  and	  ORDER	  

	  

	  

This	  matter	  is	  before	  the	  Court	  on	  a	  motion	  to	  dismiss	  filed	  by	  the	  defendant,	  

Catastrophe	  Management	  Solutions	  (CMS).	  	  (Doc.	  7)	  	  Defendant	  argues	  that	  the	  

complaint	  filed	  by	  the	  Equal	  Employment	  Opportunity	  Commission	  (EEOC),	  which	  

alleges	  that	  CMS	  engaged	  in	  intentional	  racial	  discrimination,	  fails	  to	  state	  a	  claim	  

upon	  which	  relief	  can	  be	  granted.	  	  The	  EEOC	  has	  filed	  a	  response	  to	  the	  motion	  to	  

dismiss	  (Doc.	  13),	  and	  CMS	  has	  filed	  a	  reply	  brief	  (Doc.	  16).	  	  After	  due	  consideration	  

of	  the	  issues	  and	  the	  applicable	  law,	  the	  Court	  finds	  that	  the	  motion	  to	  dismiss	  is	  due	  

to	  be	  granted.	  

The	  Complaint	  

	  

The	  Complaint’s	  pertinent	  factual	  and	  legal	  assertions	  are	  straightforward	  

and	  brief.	  	  The	  EEOC	  alleges	  that	  CMS	  “engaged	  in	  unlawful	  employment	  practices.	  .	  .	  

in	  violation	  of	  42	  U.S.C.	  §	  2000e-­‐2(a)(1)	  and	  42	  U.S.C.	  §	  2000e-­‐2(m)	  [Title	  VII]	  by	  

implementing	  a	  policy	  that	  prohibited	  employees	  from	  wearing	  dreadlocks	  and	  

Case 1:13-cv-00476-CB-M Document 19 Filed 03/27/14 Page 2 of 10

enforcing	  that	  policy	  against	  Chastity	  C.	  Jones.”1	  	  (Compl.	  ¶	  7,	  Doc.	  1.)	  	  CMS’s	  policy	  

states:	  

All	  personnel	  are	  expected	  to	  be	  dressed	  and	  groomed	  in	  a	  manner	   that	  projects	  a	  professional	  and	  businesslike	  image	  while	  adhering	  to	   company	  and	  industry	  standards	  and/or	  guidelines.	  .	  .hairstyles	   should	  reflect	  a	  business/professional	  image.	  	  No	  excessive	  hairstyles	   or	  unusual	  colors	  are	  acceptable.	  .	  .	   	   (Id.	  ¶	  8.)	  	  	  

	  

CMS	  “interpreted	  [this]	  policy	  to	  prohibit	  dreadlocks,”	  made	  an	  offer	  of	  

employment	  to	  Jones,	  on	  the	  condition	  that	  Jones	  “cut[	  ]	  off	  her	  dreadlocks,	  and	  then	  

withdrew	  the	  offer.	  .	  .	  when	  she	  declined	  [to	  cut	  her	  dreadlocks].”	  	  (Id.	  ¶¶	  9-­‐10.)	  	  	  	  

The	  Complaint	  alleges	  that	  “Defendant’s	  application	  of	  its	  policy	  to	  prohibit	  

dreadlocks	  constitutes	  an	  employment	  practice	  that	  discriminates	  on	  the	  basis	  of	  

race,	  black”	  and	  that	  the	  policy	  has	  “deprive[d]	  [Jones]	  of	  equal	  employment	  

opportunities	  and	  [	  ]	  otherwise	  adversely	  affect[ed]	  her	  status	  as	  an	  employee	  

because	  of	  her	  race.”	  	  (Id.	  ¶	  12.)	  	  Finally,	  the	  Complaint	  asserts	  that	  “the	  [alleged]	  

unlawful	  employment	  practices	  .	  .	  .	  were	  intentional	  [and].	  .	  .	  done	  with	  malice	  or	  

reckless	  indifference”	  to	  [Jones’s]	  federally	  protected	  rights.”	  	  	  (Id.	  at	  ¶¶	  13-­‐14.)	  	  	  

Standard	  of	  Review	  

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	   

	  

1	  The	  EEOC	  has	  authority	  to	  bring	  a	  civil	  action	  against	  an	  employer	  for	  

violation	  of	  Title	  VII	  of	  the	  Civil	  Rights	  Act	  of	  1964,	  42	  U.S.C.	  §§	  2000e-­‐1	  et	  seq.	  	  	  	  

under	  42	  U.S.C.	  §§	  2000e-­‐2(a)	  (1)	  and	  2000e-­‐2(m).	  	  The	  former	  makes	  it	  unlawful	  

for	  an	  employer	  “to	  fail	  or	  refuse	  to	  hire	  …	  because	  of	  [an]	  individual’s	  race,	  color	  

religion,	  sex	  or	  national	  origin.”	  	  42	  U.S.C.	  §	  2000e-­‐2(a)(1).	  	  The	  latter	  provides	  that	  

“an	  unlawful	  employment	  practice	  is	  established	  when	  the	  complaining	  party	  

demonstrates	  that	  race,	  color,	  religion,	  sex,	  or	  national	  origin	  was	  a	  motivating	  

factor	  for	  any	  employment	  practice,	  even	  though	  other	  factors	  also	  motivated	  the	  

practice.”	  	  42	  U.S.C.	  §	  2000e-­‐2(m).	  

	  

2	  

Case 1:13-cv-00476-CB-M Document 19 Filed 03/27/14 Page 3 of 10

	  

A	  complaint	  must	  “set	  forth	  a	  short	  and	  plain	  statement	  of	  the	  claim	  showing	  

that	  the	  pleader	  is	  entitled	  to	  relief.”	  	  Fed.	  R.	  Civ.	  P.	  8(a)(2).	  	  In	  Bell	  Atlantic	  Corp.	  v.	  

Twombly,	  550	  U.S.	  544	  (2007),	  the	  Supreme	  Court	  set	  forth	  the	  parameters	  of	  a	  well-­‐

pleaded	  complaint.	  	  A	  claim	  for	  relief	  “must	  set	  forth	  enough	  factual	  matter	  (taken	  as	  

true)	  to	  suggest	  [the	  required	  elements	  of	  a	  cause	  of	  action].”	  	  	  Id.	  at	  556;	  see	  also	  

Watts	  v.	  Florida	  Int’l	  Univ.,	  495	  F.3d	  1289,	  1295	  (11th	  Cir.	  2007)	  (applying	  

Twombly).	  	  	  Furthermore,	  a	  complaint	  must	  “provide	  the	  defendant	  with	  fair	  notice	  

of	  the	  factual	  grounds	  on	  which	  the	  complaint	  rests.”	  	  Jackson	  v.	  Bellsouth	  Telecomm.,	  

Inc.,	  372	  F.3d	  1250,	  1271	  (11th	  Cir.	  2004).	  	  	  	  

	  

In	  Ashcroft	  v.	  Iqbal,	  556	  U.S.	  662	  (2009),	  the	  Supreme	  Court	  further	  refined	  

the	  threshold	  requirements	  for	  a	  claim	  under	  Rule	  8(a)(2).	  	  	  	  

Two	  working	  principles	  underlie	  our	  decision	  in	  Twombly.	  First,	  the	   tenet	  that	  a	  court	  must	  accept	  as	  true	  all	  of	  the	  allegations	  contained	   in	  a	  complaint	  is	  inapplicable	  to	  legal	  conclusions.	  Threadbare	  recitals	   of	  the	  elements	  of	  a	  cause	  of	  action,	  supported	  by	  mere	  conclusory	   statements,	  do	  not	  suffice.	  	  Rule	  8	  marks	  a	  notable	  and	  generous	   departure	  from	  the	  hyper-­‐technical,	  code-­‐pleading	  regime	  of	  a	  prior	   era,	  but	  it	  does	  not	  unlock	  the	  doors	  of	  discovery	  for	  a	  plaintiff	  armed	   with	  nothing	  more	  than	  conclusions.	  Second,	  only	  a	  complaint	  that	   states	  a	  plausible	  claim	  for	  relief	  survives	  a	  motion	  to	  dismiss.	   Determining	  whether	  a	  complaint	  states	  a	  plausible	  claim	  for	  relief	   will	  .	  .	  .	  be	  a	  context-­‐specific	  task	  that	  requires	  the	  reviewing	  court	  to	   draw	  on	  its	  judicial	  experience	  and	  common	  sense.	  But	  where	  the	   well-­‐pleaded	  facts	  do	  not	  permit	  the	  court	  to	  infer	  more	  than	  the	  mere	   possibility	  of	  misconduct,	  the	  complaint	  has	  alleged-­‐but	  it	  has	  not	   “show[n]”-­‐“that	  the	  pleader	  is	  entitled	  to	  relief.”	  	   	   Iqbal,	  556	  U.S.	  678-­‐79	  (quoting	  Fed.	  R.	  Civ.	  P.	  8(a)(2))	  (other	  citations	  omitted).	  	  	  

“[W]here	  the	  well-­‐pleaded	  facts	  do	  not	  permit	  the	  court	  to	  infer	  more	  than	  the	  mere	  

possibility	  of	  misconduct,	  the	  complaint	  has	  alleged—but	  it	  has	  not	  ‘show[n]’—‘that	  

the	  pleader	  is	  entitled	  to	  relief.’”	  	  Id.	  at	  679	  (quoting	  Fed.	  R.	  Civ.	  P.	  8(a)(2)).	  

	  

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Legal	  Analysis	  

	  

CMS	  has	  moved	  to	  dismiss	  because	  the	  facts	  alleged	  in	  the	  Complaint	  do	  not	  

support	  a	  plausible	  claim	  for	  intentional	  discrimination.	  	  The	  EEOC’s	  Complaint	  

asserts	  that	  CMS	  refused	  to	  hire	  Jones	  because	  she	  is	  black.	  	  The	  factual	  allegations	  

in	  support	  of	  that	  claim	  are	  simple.	  	  CMS	  interpreted	  its	  grooming	  policy	  to	  prohibit	  

dreadlocks.	  	  Because	  Jones	  refused	  to	  cut	  her	  dreadlocks,	  CMS	  rescinded	  its	  offer	  to	  

hire	  her.	  CMS	  argues	  that	  a	  grooming	  policy	  based	  on	  a	  “mutable”	  characteristic,	  

such	  as	  hairstyle,	  is	  not	  racially	  discriminatory.	  	  The	  EEOC’s	  response	  is	  twofold.	  	  

First,	  it	  contends	  that	  the	  pleading	  standard	  urged	  by	  CMS	  is	  too	  stringent	  and	  that	  it	  

is	  not	  required	  to	  plead	  its	  legal	  theory	  in	  the	  Complaint.	  	  Second,	  it	  argues,	  for	  

various	  reasons,	  that	  a	  company	  policy	  that	  prohibits	  dreadlocks	  is	  racially	  

discriminatory.	  

	  

Complaint	  Must	  Contain	  Facts	  to	  Support	  a	  Viable	  Legal	  Theory	  

	  

The	  EEOC’s	  argument	  that	  it	  need	  not	  plead	  a	  legal	  theory	  is	  a	  statement	  of	  

the	  obvious.	  The	  issue	  is	  whether	  the	  Complaint	  contains	  sufficient	  factual	  

allegations	  to	  support	  a	  claim	  of	  intentional	  discrimination.	  	  While	  it	  is	  not	  

necessary	  to	  plead	  the	  elements	  of	  a	  prima	  facie	  case	  of	  discrimination,	  “a	  pleading	  

[cannot]	  survive	  dismissal	  when	  it	  consist[s]	  of	  only	  the	  barest	  of	  conclusory	  

allegations	  without	  notice	  of	  the	  factual	  grounds	  on	  which	  they	  purport	  to	  be	  

based.”	  	  	  Jackson,	  372	  F.3d	  at	  1271.	  	  As	  case	  law	  cited	  by	  the	  EEOC	  acknowledges,	  a	  

complaint	  need	  not	  allege	  a	  legal	  theory,	  but	  it	  must	  “’contain	  inferential	  allegations	  

from	  which	  [a	  court]	  can	  identify	  each	  of	  the	  material	  elements	  necessary	  to	  sustain	  

a	  recovery	  under	  some	  viable	  legal	  theory.’”	  	  Balaschak	  v.	  Royal	  Caribbean	  Cruises,	  

	  

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Ltd.,	  2009	  WL	  8659594	  (S.D.	  Fla	  Sept.	  14,	  2009)	  (quoting	  Roe	  v.	  Aware	  Woman	  Ctr.	  

For	  Choice,	  Inc.,	  253	  F.3d	  678,	  683	  (11th	  Cir.	  2001)).	  	  	  

	  

The	  EEOC	  implies	  that	  the	  pleading	  standard	  is	  somehow	  different	  or	  less	  

stringent	  with	  respect	  to	  the	  element	  of	  intent.	  	  Citing	  Iqbal,	  it	  argues	  that	  “in	  

disparate	  treatment	  cases	  like	  this	  one—where	  the	  fact	  of	  employer	  intent	  is	  critical	  

-­‐-­‐a	  court	  should	  be	  especially	  wary	  of	  dismissing	  the	  complaint	  for	  failure	  to	  state	  a	  

claim.”	  	  (Pl.’s	  Resp.	  5,	  Doc.	  13.)	  	  The	  cited	  portion	  of	  Iqbal	  does	  not	  support	  such	  a	  

conclusion.	  	  There	  the	  Court	  addressed	  the	  respondent’s	  claim	  that	  Fed.	  R.	  Civ.	  P.	  

9(b)	  “expressly	  allow[ed]	  him	  to	  allege	  [	  ]	  discriminatory	  intent	  ‘generally,’	  .	  .	  .	  [i.e.,]	  

with	  a	  conclusory	  allegation.”	  	  	  Iqbal,	  556	  U.S.	  at	  686.	  	  The	  Court	  rejected	  that	  

argument,	  holding	  that	  the	  term	  “generally”	  in	  Rule	  9(b)	  “merely	  excuses	  a	  party	  

from	  pleading	  discriminatory	  intent	  under	  [the]	  elevated	  pleading	  standard”	  

applicable	  to	  fraud	  claims.	  Id.	  at	  687.	  	  After	  rejecting	  the	  argument	  that	  Rule	  9(b)	  

provided	  special	  dispensation	  for	  pleading	  intent	  “generally,”	  the	  Court	  returned	  to	  

the	  applicable	  pleading	  requirements	  of	  Rule	  8,	  which	  ”does	  not	  empower	  a	  

respondent	  to	  plead	  the	  bare	  elements	  of	  his	  cause	  of	  action,	  affix	  the	  label	  ‘general	  

allegation,’	  and	  expect	  his	  complaint	  to	  survive	  a	  motion	  to	  dismiss.”	  	  	  Id.	  	  	  

	  

The	  Facts	  Alleged	  in	  the	  Complaint	  Do	  Not	  Support	  a	  Plausible	  Claim	  of	  

Intentional	  Discrimination	  

	  

	  

It	  has	  long	  been	  settled	  that	  employers’	  grooming	  policies	  are	  outside	  the	  

purview	  of	  Title	  VII.	  	  In	  Willingham	  v.	  Macon	  Tel.	  Publ’g	  Co.,	  507	  F.2d	  1084	  (5th	  Cir.	  

1975)	  (en	  banc),	  the	  former	  Fifth	  Circuit	  addressed	  the	  discriminatory	  impact	  of	  a	  

grooming	  policy	  in	  the	  context	  of	  a	  sex	  discrimination	  claim.	  	  Pointing	  out	  that	  the	  

purpose	  of	  Title	  VII	  is	  to	  provide	  equal	  access	  to	  the	  job	  market,	  the	  court	  held:	  

	  

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Equal	  employment	  opportunity	  may	  be	  secured	  only	  when	  employers	   are	  barred	  from	  discriminating	  against	  employees	  on	  the	  basis	  of	   immutable	  characteristics,	  such	  as	  race	  and	  national	  origin.	  	  .	  .	  .	  [A]	   hiring	  policy	  that	  distinguishes	  on	  some	  .	  .	  .	  ground	  [other	  than	  sex],	   such	  as	  grooming	  codes	  or	  length	  of	  hair,	  is	  related	  more	  closely	  to	  the	   employer’s	  choice	  of	  how	  to	  run	  his	  business	  than	  to	  equality	  of	   employment	  opportunity.	  	  .	  .	  .	  Hair	  length	  is	  not	  immutable	  and	  in	  the	   situation	  of	  employer	  vis	  a	  vis	  employee	  enjoys	  no	  constitutional	   protection.	  	  If	  the	  employee	  objects	  to	  the	  grooming	  code	  he	  has	  the	   right	  to	  reject	  it	  by	  looking	  elsewhere	  for	  employment,	  or	   alternatively	  he	  may	  choose	  to	  subordinate	  his	  preference	  by	   accepting	  the	  code	  a	  long	  with	  the	  job.	   	   Id.	  at	  1091.2	  	  	  

	  

Many	  courts	  have	  addressed	  policies	  restricting	  hairstyles	  and	  have	  

determined	  such	  restrictions	  to	  be	  nondiscriminatory.	  	  For	  example,	  in	  Rogers	  v.	  

American	  Airlines,	  Inc.,	  527	  F.	  Supp.	  229	  (S.D.N.Y.	  1981),	  the	  plaintiff	  challenged	  her	  

employer’s	  grooming	  policy	  that	  prohibited	  employees	  from	  wearing	  an	  “all-­‐braided	  

hairstyle,”	  asserting	  that	  it	  discriminated	  on	  the	  basis	  of	  race	  and	  sex.	  	  Id.	  at	  231.	  	  

Rogers	  argued	  that	  the	  “cornrow”	  hairstyle	  had	  cultural	  and	  historical	  significance	  

to	  black	  women.	  	  Id.	  at	  231-­‐32.	  	  The	  court	  rejected	  this	  argument	  and	  dismissed	  the	  

complaint,	  holding	  that	  	  “an	  all-­‐braided	  hairstyle	  .	  .	  .	  is	  an	  ‘easily	  changed	  

characteristic,’	  and,	  even	  if	  socioculturally	  associated	  with	  a	  particular	  race	  or	  

nationality,	  is	  not	  an	  impermissible	  basis	  for	  distinctions	  in	  the	  application	  of	  

employment	  practices	  by	  an	  employer.”	  	  Id.	  at	  232.	  

	  

In	  Eatman	  v.	  United	  Parcel	  Serv.,	  194	  F.Supp.2d	  256	  (S.D.N.Y.	  2002),	  UPS’s	  

policy	  grooming	  policy	  required	  company	  drivers	  to	  wear	  hats	  to	  cover	  

“unconventional”	  hairstyles.	  	  Eatman,	  who	  wore	  his	  hair	  in	  dreadlocks,	  was	  

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	   

	  

2	  Cases	  decided	  by	  the	  Fifth	  Circuit	  prior	  to	  October	  1,	  1981	  are	  binding	  

precedent.	  Bonner	  v.	  City	  of	  Prichard,	  661	  F.2d	  1206	  (11th	  Cir.	  1981)	  (en	  banc).	  

	  

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ultimately	  fired	  for	  his	  refusal	  to	  wear	  a	  hat.	  	  Eatman	  filed	  an	  employment	  

discrimination	  action	  under	  Title	  VII	  asserting,	  inter	  alia,	  a	  claim	  for	  racial	  

discrimination	  based	  on	  UPS’s	  “facially	  discriminatory	  grooming	  policy.”	  	  Id.	  at	  261-­‐

62.	  	  Eatman	  argued	  that	  the	  company’s	  appearance	  guidelines	  were	  “facially	  

discriminatory	  because	  they	  single[d]	  out	  African-­‐Americans	  on	  the	  basis	  of	  a	  

characteristic—locked	  hair-­‐-­‐that	  is	  unique	  to	  African-­‐Americans.”	  	  Id.	  at	  262.	  	  The	  

court	  concluded	  that	  “locked	  hair”	  is	  not	  unique	  to	  African	  Americans	  and	  that	  “it	  is	  

beyond	  cavil	  that	  Title	  VII	  does	  not	  prohibit	  discrimination	  on	  the	  basis	  of	  locked	  

hair.”	  	  Id.	  	  

	  

Other	  courts	  have	  reached	  the	  same	  conclusion	  regarding	  various	  types	  of	  

restrictions	  on	  hairstyles.	  	  In	  Pitts	  v.	  Wild	  Adventures,	  Inc.,	  2008	  WL	  1899306	  (M.D.	  

Ga.	  Apr.	  25,	  2008),	  the	  plaintiff	  argued	  that	  the	  defendants	  grooming	  policy	  was	  

“racially	  discriminatory	  because	  it	  prohibit[ed]	  ‘Afro-­‐centric	  hairstyles’	  such	  as	  

dreadlocks	  and	  cornrows.”	  	  Id.	  at	  *6.	  	  The	  court	  rejected	  this	  argument,	  holding	  that	  	  

the	  policy	  was	  facially	  neutral	  because	  “[d]readlocks	  and	  cornrows	  are	  not	  

immutable	  characteristic,”	  	  and,	  therefore,	  a	  policy	  that	  prohibits	  these	  hairstyles	  is	  

not	  discriminatory.	  3	  	  	  Id.	  	  See	  also	  Gadson	  v.	  Ala.	  Dept.	  of	  Corr.,	  2013	  WL	  3879903	  

(N.D.	  Ala.	  July	  26,	  2013)	  (dismissing,	  with	  leave	  to	  amend,	  plaintiff’s	  disparate	  

impact	  claim	  based	  on	  ADOC’s	  policy	  prohibiting	  dreadlocks);	  Campbell	  v.	  Ala.	  Dept.	  

of	  Corr.,	  2013	  WL	  2248086	  (N.D.	  Ala.	  May	  20,	  2013)	  (same).	  	  	  

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	   

	  

3	  Pitts	  involved	  a	  claim	  brought	  under	  42	  U.S.C.	  §	  1981,	  but	  Title	  VII	  and	  §	  

1981	  employment	  discrimination	  claims	  are	  analyzed	  in	  the	  same	  manner.	  	  

Standard	  v.	  A.B.E.L.	  Serv.,	  Inc.,	  161	  F.3d	  1318,	  1330	  (11th	  Cir.	  1998).	  

	  

7	  

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Based	  on	  these	  cases,	  the	  outcome	  here	  is	  clear.	  	  The	  EEOC	  asserts	  that	  the	  

policy	  itself	  was	  discriminatory	  because	  it	  was	  interpreted	  to	  prohibit	  dreadlocks,	  

which	  is	  a	  hairstyle.4	  	  Title	  VII	  prohibits	  discrimination	  on	  the	  basis	  of	  immutable	  

characteristics,	  such	  as	  race,	  sex,	  color,	  or	  national	  origin.	  	  A	  hairstyle,	  even	  one	  

more	  closely	  associated	  with	  a	  particular	  ethnic	  group,	  is	  a	  mutable	  characteristic.	  	  

Therefore,	  the	  Complaint	  fails	  to	  state	  a	  plausible	  claims	  for	  relief.	  

	  

The	  EEOC	  asserts	  several	  arguments	  in	  an	  attempt	  to	  convince	  the	  Court	  that	  

its	  claim	  is	  sufficiently	  plausible	  to	  survive	  a	  motion	  to	  dismiss.	  	  First,	  it	  argues	  that	  

hairstyle	  can	  be	  a	  determinant	  of	  racial	  identity.	  	  That	  argument	  was	  rejected,	  either	  

implicitly	  or	  explicitly,	  in	  the	  cases	  cited	  above.	  	  Next,	  it	  argues	  that	  Rogers	  and	  the	  

cases	  relying	  on	  it	  are	  wrongly	  decided	  because	  “their	  construct	  of	  race	  is	  far	  too	  

narrow,”	  	  (Pl’s	  Resp.	  10.)	  	  According	  to	  the	  EEOC,	  the	  definition	  of	  race	  should	  

encompass	  both	  physical	  and	  cultural	  characteristics,	  even	  when	  those	  cultural	  

characteristics	  are	  not	  unique	  to	  a	  particular	  group.	  	  But	  as	  the	  defendant	  points	  out,	  

to	  define	  race	  by	  non-­‐unique	  cultural	  characteristics	  could	  lead	  to	  absurd	  results.	  	  

For	  instance,	  a	  policy	  prohibiting	  dreadlocks	  would	  not	  apply	  to	  African	  Americans	  

but	  would	  apply	  to	  whites.	  	  Moreover,	  culture	  and	  race	  are	  two	  distinct	  concepts.	  	  

Culture	  is	  “a	  set	  of	  behavioral	  characteristics	  and	  therefore	  significantly	  dissimilar	  

from	  the	  immutable	  characteristics	  of	  race	  and	  national	  origin.”	  	  United	  States	  v.	  

Guzman,	  236	  F.3d	  830,	  835	  (7th	  Cir.	  2001)	  (Ripple,	  J.,	  concurring	  in	  part	  and	  

dissenting	  in	  part)	  (discussing	  cultural	  heritage	  versus	  national	  origin	  as	  a	  basis	  for	  

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	   

	  

4	  To	  be	  clear,	  the	  EEOC	  does	  not	  argue	  that	  the	  policy	  was	  discriminatorily	  

applied;	  nor	  are	  there	  any	  facts	  alleged	  in	  the	  Complaint	  that	  would	  support	  an	  such	  

a	  claim.	  

	  

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departure	  under	  United	  States	  Sentencing	  Guidelines).	  	  The	  EEOC	  also	  asserts	  that	  

the	  immutable	  versus	  mutable	  distinction	  should	  be	  rejected	  and	  that	  certain	  traits	  

should	  be	  protected	  from	  discrimination.	  	  	  The	  law,	  however,	  prohibits	  

discrimination	  on	  the	  basis	  of	  “race,	  color,	  religion,	  sex,	  or	  national	  origin”	  42	  U.S.C.	  

§	  2000e-­‐2(a)(1),	  and	  not	  on	  the	  basis	  of	  “traits.”	  	  Next	  the	  EEOC	  argues	  that	  courts	  

have	  given	  too	  much	  deference	  to	  employer	  grooming	  policies,	  which	  has	  allowed	  

employers	  to	  apply	  their	  policies	  in	  a	  discriminatory	  manner.	  	  That	  argument	  says	  

nothing	  about	  how	  the	  facts	  alleged	  in	  this	  complaint	  support	  a	  claim	  that	  this	  

employer	  applied	  the	  grooming	  policy	  in	  a	  discriminatory	  manner.	  

	  

Finally,	  the	  EEOC	  contends	  that	  it	  should	  be	  allowed	  to	  present	  expert	  

testimony	  and	  to	  develop	  the	  facts	  prior	  to	  dismissal.	  	  It	  alleges	  that	  “[ex]pert	  

testimony	  will	  help	  establish	  underlying	  factual	  predicate[s].”	  	  (Pl.’s	  Resp.	  13.)	  	  The	  

first	  is	  “that	  Blacks	  are	  primary	  wearers	  of	  dreadlocks.”	  	  (Id.,	  emphasis	  added.)	  Since	  

Blacks	  are	  not	  the	  exculsive	  wearers	  of	  dreadlocks,	  that	  testimony	  would	  not	  

support	  Plaintiff’s	  claim	  that	  a	  prohibition	  on	  dreadlocks	  discriminates	  against	  

Blacks.	  	  Next,	  the	  EEOC’s	  expert	  testimony	  would	  show	  that	  dreadlocks	  	  “are	  a	  

reasonable	  and	  natural	  method	  of	  managing	  the	  physiological	  construct	  of	  Black	  	  

hair,	  and	  that	  dreadlocks	  are	  an	  immutable	  characteristic,	  unlike	  hair	  length	  or	  

other	  hairstyles.”	  (Id.)	  	  But	  a	  hairstyle	  is	  not	  inevitable	  and	  immutable	  just	  because	  it	  

is	  a	  reasonable	  result	  of	  hair	  texture,	  which	  is	  an	  immutable	  characteristic.	  	  No	  

amount	  of	  expert	  testimony	  can	  change	  the	  fact	  that	  dreadlocks	  is	  a	  hairstyle.	  The	  

EEOC	  would	  also	  offer	  expert	  testimony	  that	  “the	  wearing	  of	  dreadlocks	  by	  Blacks	  

has	  socio-­‐cultural	  racial	  significance.”	  (Id.	  14.)	  	  As	  discussed,	  supra	  at	  8,	  Title	  VII	  

	  

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does	  not	  protect	  against	  discrimination	  based	  on	  traits,	  even	  a	  trait	  that	  has	  socio-­‐

cultural	  racial	  significance.	  	  

Conclusion	  

	  

For	  the	  reasons	  set	  forth	  above,	  the	  Court	  finds	  that	  the	  Complaint	  fails	  to	  

state	  a	  plausible	  claim	  for	  employment	  discrimination	  based	  on	  race.	  	  Accordingly,	  

the	  motion	  to	  dismiss	  is	  hereby	  GRANTED.	  

	  

DONE	  and	  ORDERED	  this	  the	  27th	  day	  of	  	  March,	  2014.	  

	  

	  

	  

	  

	  

	  

	  

	  

	  

	  

	  

	  

	  

s/Charles	  R.	  Butler,	  Jr.	   	  

	  

	  

	  

	  

	  

	  

	  

Senior	  United	  States	  District	  Judge	  

	  

	  

10	  

 
 Case 1:13-cv-00476-CB-M Document 36 Filed 12/13/16 Page 1 of 36
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 14-13482 ________________________
D.C. Docket No. 1:13-cv-00476-CB-M
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff - Appellant,
versus CATASTROPHE MANAGEMENT SOLUTIONS,
Defendant - Appellee. ________________________ Appeal from the United States District Court for the Southern District of Alabama ________________________
(December 13, 2016) Before JORDAN and JULIE CARNES, Circuit Judges, and ROBREÑO,* District Judge. JORDAN, Circuit Judge:
* The Honorable Eduardo Robreño, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.

Case 1:13-cv-00476-CB-M Document 36 Filed 12/13/16 Page 2 of 36
We withdraw our previous opinion, dated September 15, 2016, and published at 837 F.3d 1156, and issue this revised opinion:
The Equal Employment Opportunity Commission filed suit on behalf of Chastity Jones, a black job applicant whose offer of employment was rescinded by Catastrophe Management Solutions pursuant to its race-neutral grooming policy when she refused to cut off her dreadlocks. The EEOC alleged that CMS’ conduct constituted discrimination on the basis of Ms. Jones’ race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2(a)(1) & 2000e–2(m). The district court dismissed the complaint under Federal Rule of Civil Procedure 12(b)(6) because it did not plausibly allege intentional racial discrimination by CMS against Ms. Jones. See E.E.O.C. v. Catastrophe Mgmt. Solutions, 11 F. Supp. 3d 1139, 1142–44 (S.D. Ala. 2014). The district court also denied the EEOC’s motion for leave to amend, concluding that the proposed amended complaint would be futile. The EEOC appealed.
With the benefit of oral argument, we affirm. First, the EEOC—in its proposed amended complaint and in its briefs—conflates the distinct Title VII theories of disparate treatment (the sole theory on which it is proceeding) and disparate impact (the theory it has expressly disclaimed). Second, our precedent holds that Title VII prohibits discrimination based on immutable traits, and the proposed amended complaint does not assert that dreadlocks—though culturally
2

Case 1:13-cv-00476-CB-M Document 36 Filed 12/13/16 Page 3 of 36
associated with race—are an immutable characteristic of black persons. Third, we are not persuaded by the guidance in the EEOC’s Compliance Manual because it conflicts with the position taken by the EEOC in an earlier administrative appeal, and because the EEOC has not persuasively explained why it changed course. Fourth, no court has accepted the EEOC’s view of Title VII in a scenario like this one, and the allegations in the proposed amended complaint do not set out a plausible claim that CMS intentionally discriminated against Ms. Jones on the basis of her race.
I The EEOC relies on the allegations in its proposed amended complaint, see Br. of EEOC at 2–6, so we set out those allegations below.
A CMS, a claims processing company located in Mobile, Alabama, provides customer service support to insurance companies. In 2010, CMS announced that it was seeking candidates with basic computer knowledge and professional phone skills to work as customer service representatives. CMS’ customer representatives do not have contact with the public, as they handle telephone calls in a large call room. Ms. Jones, who is black, completed an online employment application for the customer service position in May of 2010, and was selected for an in-person
3

Case 1:13-cv-00476-CB-M Document 36 Filed 12/13/16 Page 4 of 36
interview. She arrived at CMS for her interview several days later dressed in a blue business suit and wearing her hair in short dreadlocks.
After waiting with a number of other applicants, Ms. Jones interviewed with a company representative to discuss the requirements of the position. A short time later, Ms. Jones and other selected applicants were brought into a room as a group.
CMS’ human resources manager, Jeannie Wilson—who is white—informed the applicants in the room, including Ms. Jones, that they had been hired. Ms. Wilson also told the successful applicants that they would have to complete scheduled lab tests and other paperwork before beginning their employment, and she offered to meet privately with anyone who had a conflict with CMS’ schedule. As of this time no one had commented on Ms. Jones’ hair.
Following the meeting, Ms. Jones met with Ms. Wilson privately to discuss a scheduling conflict she had and to request to change her lab test date. Ms. Wilson told Ms. Jones that she could return at a different time for the lab test.
Before Ms. Jones got up to leave, Ms. Wilson asked her whether she had her hair in dreadlocks. Ms. Jones said yes, and Ms. Wilson replied that CMS could not hire her “with the dreadlocks.” When Ms. Jones asked what the problem was, Ms. Wilson said “they tend to get messy, although I’m not saying yours are, but you know what I’m talking about.” Ms. Wilson told Ms. Jones about a male applicant who was asked to cut off his dreadlocks in order to obtain a job with CMS.
4

Case 1:13-cv-00476-CB-M Document 36 Filed 12/13/16 Page 5 of 36
When Ms. Jones said that she would not cut her hair, Ms. Wilson told her that CMS could not hire her, and asked her to return the paperwork she had been given. Ms. Jones did as requested and left.
At the time, CMS had a race-neutral grooming policy which read as follows: “All personnel are expected to be dressed and groomed in a manner that projects a professional and businesslike image while adhering to company and industry standards and/or guidelines. . . . [H]airstyle should reflect a business/professional image. No excessive hairstyles or unusual colors are acceptable[.]”
B Dreadlocks, according to the proposed amended complaint, are “a manner of wearing hair that is common for black people and suitable for black hair texture. Dreadlocks are formed in a black person’s hair naturally, without any manipulation, or by manual manipulation of hair into larger coils.” The EEOC alleged that the term dreadlock originated during the slave trade in the early history of the United States. “During the forced transportation of Africans across the ocean, their hair became matted with blood, feces, urine, sweat, tears, and dirt. Upon observing them, some slave traders referred to the slaves’ hair as ‘dreadful,’” and dreadlock became a “commonly used word to refer to the locks that had formed during the slaves’ long trips across the ocean.”
5

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C The proposed amended complaint also contained some legal conclusions about the concept of race. First, the EEOC stated that race “is a social construct and has no biological definition.” Second, the EEOC asserted that “the concept of race is not limited to or defined by immutable physical characteristics.” Third, according to the EEOC Compliance Manual, the “concept of race encompasses cultural characteristics related to race or ethnicity,” including “grooming practices.” Fourth, although some non-black persons “have a hair texture that would allow the hair to lock, dreadlocks are nonetheless a racial characteristic, just as skin color is a racial characteristic.” Playing off these legal conclusions, the proposed amended complaint set out allegations about black persons and their hair. The hair of black persons grows “in very tight coarse coils,” which is different than the hair of white persons. “Historically, the texture of hair has been used as a substantial determiner of race,” and “dreadlocks are a method of hair styling suitable for the texture of black hair and [are] culturally associated” with black persons. When black persons “choose to wear and display their hair in its natural texture in the workplace, rather than straightening it or hiding it, they are often stereotyped as not being ‘teamplayers,’ ‘radicals,’ ‘troublemakers,’ or not sufficiently assimilated into the corporate and professional world of employment.” Significantly, the proposed amended
6

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complaint did not allege that dreadlocks are an immutable characteristic of black persons.
II Our review in this appeal is plenary. Like the district court, we accept as true the well-pleaded factual allegations in the proposed amended complaint and draw all reasonable inferences in the EEOC’s favor. See, e.g., Ellis v. Cartoon Network, Inc., 803 F.3d 1251, 1255 (11th Cir. 2015) (dismissal of a complaint for failure to state a claim); St. Charles Foods, Inc. v. America’s Favorite Chicken Co., 198 F.3d 815, 822 (11th Cir. 1999) (denial of a motion for leave to amend due to futility). The legal conclusions in the proposed amended complaint, however, are not presumed to be true. See Ashcroft v. Iqbal, 556 U.S. 662, 679–81 (2009); Franklin v. Curry, 738 F.3d 1246, 1248 n.1 (11th Cir. 2013). A complaint must contain sufficient factual allegations to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In a Title VII case like this one, the EEOC had to set out enough “factual content t[o] allow[ ] [a] court to draw the reasonable inference” that CMS is liable for the intentional racial discrimination alleged. See Iqbal, 556 U.S. at 678–79 (explaining that the “plausibility standard” requires more than a “mere possibility” but is “not akin to a ‘probability requirement’”).
7

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III1
The EEOC claimed in its proposed amended complaint that a “prohibition of
dreadlocks in the workplace constitutes race discrimination because dreadlocks are
a manner of wearing the hair that is physiologically and culturally associated with
people of African descent.” So, according to the EEOC, the decision of CMS to
“interpret its race-neutral written grooming policy to ban the wearing of dreadlocks
constitutes an employment practice that discriminates on the basis of race.”
The district court dismissed the initial complaint, and concluded that the
proposed amended complaint was futile, because “Title VII prohibits
discrimination on the basis of immutable characteristics, such as race, color, or
natural origin,” and “[a] hairstyle, even one more closely associated with a
particular ethnic group, is a mutable characteristic.” Catastrophe Mgmt., 11 F.
Supp. 3d at 1143 (order granting motion to dismiss). The district court was not
swayed by the EEOC’s contention that the allegations were sufficient because
“hairstyle can be a determinant of racial identity,” explaining that other courts had
1 We conclude that the notice of appeal was timely because the EEOC’s motion for leave to amend—which in part challenged the basis for the district court’s dismissal of the original complaint—is properly treated as a Rule 59(e) motion which tolled the time for appeal. See Giuffre v. Deutsche Bank Nat. Trust Co., 759 F.3d 134, 137 (1st Cir. 2014) (holding that a plaintiff’s post-judgment motion for leave to file an amended complaint tolled the time to appeal because “[i]n substance, [the] motion challenged the legal foundation of the dismissal order and called on the judge to either revoke that order or alter it to allow him leave to amend”); Trotter v. Regents of Univ. of N.M., 219 F.3d 1179, 1183 (10th Cir. 2000) (holding that a Rule 15 motion filed within the time limit for filing a Rule 59(e) motion tolls the time for filing a notice of appeal); Bodin v. Gulf Oil Corp., 877 F.2d 438, 440 (5th Cir. 1989) (holding that a motion for leave to amend constituted a timely Rule 59(e) motion, and thus, the time for filing a notice of appeal commenced when the district court denied the motion).
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rejected that argument. See id. The district court also declined the EEOC’s invitation to discard the immutable/mutable distinction for Title VII race discrimination claims. See id. See also D.E. 27 at 1–2 (order denying leave to amend because the EEOC had already presented its more detailed allegations as legal arguments in support of the initial complaint, and those arguments had been rejected).
The EEOC advances a number of arguments on appeal in support of its position that denying a black person employment on the basis of her dreadlocks through the application of a race-neutral grooming policy constitutes intentional discrimination on the basis of race in violation of Title VII. The arguments, which build on each other, are that dreadlocks are a natural outgrowth of the immutable trait of black hair texture; that the dreadlocks hairstyle is directly associated with the immutable trait of race; that dreadlocks can be a symbolic expression of racial pride; and that targeting dreadlocks as a basis for employment can be a form of racial stereotyping. See Br. of EEOC at 14–39.
A Before we address these arguments, we discuss an overarching problem concerning the EEOC’s liability theory. Despite some loose language in its proposed amended complaint, the EEOC confirmed at oral argument that it is proceeding only on a disparate treatment theory under 42 U.S.C. § 2000e-2(a)(1)
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(making it “unlawful [for a covered employer] to fail or refuse to hire or to discharge any individual . . . because of such individual’s race, color, religion, sex or national origin”), and is not pursuing a disparate impact theory under 42 U.S.C. § 2000e-2(k)(1) (permitting disparate impact claims for unlawful employment practices and setting out applicable burdens of proof).
This matters because the two theories are not interchangeable, and “courts must be careful to distinguish between the[m.]” Raytheon Co. v. Hernandez, 540 U.S. 44, 53 (2003). See also E.E.O.C. v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1283 (11th Cir. 2000) (concluding that allowing plaintiffs who alleged disparate treatment to assert a disparate impact claim “would unwisely conflate the distinct theories of disparate impact and disparate treatment”). To prevail on a disparate treatment claim, a Title VII plaintiff must demonstrate that an employer intentionally discriminated against her on the basis of a protected characteristic. See Ricci v. DeStefano, 557 U.S. 557, 577 (2009). In contrast, a disparate impact claim does not require proof of discriminatory intent. A disparate impact claim targets an employment practice that has an actual, though not necessarily deliberate, adverse impact on protected groups. See id. Given the EEOC’s disparate treatment claim, the proposed amended complaint had to contain sufficient factual allegations to set out a plausible claim that CMS intentionally discriminated against Ms. Jones, individually, because of her race.
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Despite its decision to assert only a disparate treatment claim, the EEOC at times conflates the two liability theories, making disparate impact arguments in support of its disparate treatment claim. See Br. of Chamber of Commerce of the United States as Amicus Curiae at 14–19 (pointing this out). The EEOC, for example, faults the district court for not allowing expert testimony on the “racial impact of a dreadlock ban” and for failing to acknowledge “the critical disadvantage at which the dreadlock ban places Black applicants.” Br. of EEOC at 7–8, 18 (emphasis added). It also asserts that “the people most adversely and significantly affected by a dreadlocks ban, such as CMS’, are African-Americans.” Id. at 31 (emphasis added). And it argues that “a policy which critically disadvantages or affects members of one group over another” can support an intentional discrimination claim. See Reply Br. of EEOC at 16 (emphasis added). Because this is a disparate treatment case, and only a disparate treatment case, we do not address further the EEOC’s arguments that CMS’ race-neutral grooming policy had (or potentially had) a disproportionate effect on other black job applicants.2
2 Statistical evidence, of course, can sometimes be probative of intentional discrimination, see, e.g., Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335–40 & n.20 (1977), but the EEOC did not allege, and does not claim, that there is statistical evidence showing (or allowing a reasonable inference of) a pattern or practice of disparate treatment on the part of CMS. Nor is there any claim that CMS applied its grooming policy differently to black applicants or employees, as was the case in Hollins v. Atl. Co., Inc., 188 F.3d 652, 661 (6th Cir. 1999).
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B In its notice of supplemental authority the EEOC relies on the Supreme Court’s recent decision in Young v. United Parcel Serv., Inc., 135 S. Ct. 1338 (2015), a case involving 42 U.S.C. § 2000e(k)—a provision of the Pregnancy Discrimination Act—to support its use of disparate impact arguments in this action. Young, however, does not work a dramatic shift in disparate treatment jurisprudence. In Young, the Supreme Court dealt with the accommodation requirements of the PDA. Specifically, it considered how to implement the statutory mandate that employers treat pregnancy-related disabilities like nonpregnancy-related disabilities in a situation where an employer does not treat all nonpregnancyrelated disabilities alike. Young held that a pregnant employee who seeks to show disparate treatment in such a scenario may do so through the application of the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Young, 135 S. Ct. at 1353–54. If an employer offers apparently legitimate reasons for failing to accommodate pregnant employees, the plaintiff may assert that the proffered reasons are pretextual by providing “sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s ‘legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the burden, but rather—when considered along
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with the burden imposed—give rise to an inference of intentional discrimination.” Id. at 1354. For example, a plaintiff may provide evidence that an employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers. See id. at 1354–55.
The rationale and holding in Young are based on, and therefore limited to, the language in a specific provision of the PDA. Young is not, as the EEOC suggests, automatically transferable to a disparate treatment case under Title VII involving allegations of intentional racial discrimination.
Despite the textual differences between the Title VII disparate treatment provision at issue here (§ 2000e-2(a)(1)) and the PDA provision at issue in Young (§ 2000e(k)), the EEOC argues that the following language from Young supports its use of disparate impact concepts in a disparate treatment case:
[D]isparate-treatment law normally permits an employer to implement policies that are not intended to harm members of a protected class, even if their implementation sometimes harms those members, as long as the employer has a legitimate, nondiscriminatory, nonpretextual reason for doing so. 135 S. Ct. at 1350 (internal citations omitted). The quoted passage, however, merely explains that disparate treatment liability attaches only when an employer intentionally harms members of a protected group. It summarizes the familiar framework courts use to assess disparate treatment claims at summary judgment, where direct proof of intentional discrimination is unavailable: the McDonnell
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Douglas burden-shifting framework, which places the burden on the employer to articulate a legitimate reason for taking an adverse employment action once an employee establishes a prima facie case.
We do not read the passage from Young in the inverse to stand for the proposition that an employer’s neutral policy can engender disparate treatment liability merely because it has an unintended adverse effect on members of a protected group. The crux of the disparate treatment inquiry, and the question the McDonnell Douglas framework seeks to answer, is whether the employer intentionally discriminated against particular persons on an impermissible basis, not whether there was a disparate impact on a protected group as a whole. An allegation of adverse consequences, without more, is not sufficient to state a claim for disparate treatment. Cf. id. at 1355 (“the continued focus on whether the plaintiff has introduced sufficient evidence to give rise to an inference of intentional discrimination avoids confusing the disparate-treatment and disparateimpact doctrines”).
IV The question in a disparate treatment case is “whether the protected trait actually motivated the employer’s decision.” Raytheon, 540 U.S. at 52 (ellipses and internal quotation marks omitted). Generally speaking, “[a] plaintiff can prove disparate treatment . . . by direct evidence that a workplace policy, practice, or
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decision relies expressly on a protected characteristic, or . . . by [circumstantial evidence] using the burden-shifting framework set forth in McDonnell Douglas.” Young, 135 S. Ct. at 1345. See also Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 768 n.3 (11th Cir. 2005) (explaining that McDonnell Douglas “is not the exclusive means” for showing intentional discrimination through circumstantial evidence).
Title VII does not define the term “race.” And, in the more than 50 years since Title VII was enacted, the EEOC has not seen fit to issue a regulation defining the term. See EEOC Compliance Manual, § 15-II, at 4 (2006) (“Title VII does not contain a definition of ‘race,’ nor has the Commission adopted one.”). This appeal requires us to consider, at least in part, what “race” encompasses under Title VII because the EEOC maintains that “if [ ] individual expression is tied to a protected trait, such as race, discrimination based on such expression is a violation of the law.” Br. of EEOC at 20.
A “The meaning of the word ‘race’ in Title VII is, like any other question of statutory interpretation, a question of law for the court.” Village of Freeport v. Barrella, 814 F.3d 594, 607 (2d Cir. 2016). When words are not defined in a statute, they are “interpreted as taking their ordinary, contemporary, common meaning,” Sandifer v. U.S. Steel Corp., 134 S. Ct. 870, 876 (2014) (citation and
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internal quotation marks omitted), and one of the ways to figure out that meaning is by looking at dictionaries in existence around the time of enactment. See, e.g., St. Francis College v. Al-Khazraji, 481 U.S. 604, 609–12 (1987) (consulting 19th century dictionaries to determine the meaning of “race” in a case arising under 42 U.S.C. § 1981, which became law in 1866).
In the 1960s, as today, “race” was a complex concept that defied a single definition. Take, for example, the following discussion in a leading 1961 dictionary: “In technical discriminations, all more or less controversial and often lending themselves to great popular misunderstanding or misuse, RACE is anthropological and ethnological in force, usu[ally] implying a physical type with certain underlying characteristics, as a particular color of skin or shape of skull . . . although sometimes, and most controversially, other presumed factors are chosen, such as place of origin . . . or common root language.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE 1870 (unabridged 1961).
Nevertheless, most dictionaries at that time tied “race” to common physical characteristics or traits existing through ancestry, descent, or heredity. See id. (defining “race” as “the descendants of a common ancestor: a family, tribe, people, or nation belonging to the same stock” or “a class or kind of individuals with common characteristics, interests, appearance, or habits as if derived from a
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common ancestor,” or “a division of mankind possessing traits that are transmissible by descent and sufficient to characterize it as a distinct human type (Caucasian ~) (Mongoloid ~)”); A DICTIONARY OF THE SOCIAL SCIENCES 569 (Julius Gould & William Kolb eds. 1964) (“A race is a subdivision of a species, individual members of which display with some frequency a number of hereditary attributes that have become associated with one another in some measure through considerable degree of in-breeding among the ancestors of the group during a substantial part of their recent evolution.”); A DICTIONARY OF SOCIOLOGY 142 (G. Duncan Mitchell ed. 1968) (“Biologically speaking the concept of race refers to a population sharing a gene-pool giving rise to a characteristic distribution of physical characteristics determined by heredity. There are no clear cut boundaries between racial groups thus defined and considerable variations may be exhibited within races.”). One specialty dictionary, while defining “race” as an “anthropological term denoting a large group of persons distinguished by significant hereditary physical traits,” cautioned that “[a] common misconception is that cultural traits sufficiently differentiate races.” DICTIONARY OF POLITICAL SCIENCE 440 (Joseph Dunne ed. 1964).
From the sources we have been able to review, it appears more likely than not that “race,” as a matter of language and usage, referred to common physical characteristics shared by a group of people and transmitted by their ancestors over
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time. Although the period dictionaries did not use the word “immutable” to describe such common characteristics, it is not much of a linguistic stretch to think that such characteristics are a matter of birth, and not culture.
There is little support for the position of the EEOC that the 1964 Congress meant for Title VII to protect “individual expression . . . tied to a protected race.” Br. of EEOC at 20. Indeed, from a legal standpoint, it appears that “race” was then mostly understood in terms of inherited physical characteristics. See BLACK’S LAW DICTIONARY 1423 (4th ed. 1951) (“Race. An ethnical stock; a great division of mankind having in common certain distinguishing physical peculiarities constituting a comprehensive class appearing to be derived from a distinct primitive source. A tribal or national stock, a division or subdivision of one of the great racial stocks of mankind distinguished by minor peculiarities. Descent.”) (citing cases).
It may be that today “race” is recognized as a “social construct,” Ho by Ho v. San Francisco Unified Sch. Dist., 147 F.3d 854, 863 (9th Cir. 1998), rather than an absolute biological truth. See also Al-Khazraji, 481 U.S. at 610 n.4 (noting that some, but not all, scientists have concluded that “racial classifications are for the most part sociopolitical, rather than biological, in nature”); THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1441 (4th ed. 2009) (usage note for “race”: “The notion of race is nearly as problematic from a scientific point
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of view as it is from a social one.”). But our possible current reality does not tell
us what the country’s collective zeitgeist was when Congress enacted Title VII half
a century ago. “That race is essentially only a very powerful idea and not at all a
biological fact is, again, an emerging contemporary understanding of the meaning
of race.” Rhonda V. Magee Andrews, The Third Reconstruction: An Alternative to
Race Consciousness and Colorblindness in Post-Slavery America, 54 ALA. L.
REV. 483, 515 (2003).3
B
If we assume, however, that the quest for the ordinary understanding of
“race” in the 1960s does not have a clear winner, then we must look for answers
elsewhere. Some cases from the former Fifth Circuit provide us with binding
guidance, giving some credence to Felix Frankfurter’s adage that “[n]o judge
writes on a wholly clean slate.” Walter Hamilton, Preview of a Justice, 48 YALE
3 Of note, some contemporary judicial decisions and dictionaries still provide understandings of “race” tied to biological and physical characteristics. See, e.g., Abdullahi v. Prada USA Corp., 520 F.3d 710, 712 (7th Cir. 2008) (Posner, J.) (“A racial group as the term is generally used in the United States today is a group having a common ancestry and distinct physical traits.”); 2 SHORTER OXFORD ENGLISH DICTIONARY 2445 (5th ed. 2002) (defining “race” in part as “a group or set, esp. of people, having a common feature or features,” or “a group of living things connected by common descent or origin,” or “[a]ny of the major divisions of humankind, having in common distinct physical features or ethnic background”). And in the Geneva Convention Implementation Act of 1987, legislation that post-dated Title VII by about two decades, Congress defined the term “racial group” as “a set of individuals whose identity as such is distinctive in terms of physical characteristics or biological descent.” 18 U.S.C. § 1093(6). By citing to this provision, we do not mean to suggest that the definition of a term in one statute can be automatically used when the same term is undefined in a separate statute. We merely point out that in the late 1980s Congress still thought of “race,” in at least one context, as including common physical characteristics.
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L.J. 819, 821 (1939) (quoting FELIX FRANKFURTER, THE COMMERCE CLAUSE UNDER MARSHALL, TANEY, AND WAITE 12 (1937)). As we explain below, those cases teach that Title VII protects against discrimination based on immutable characteristics.
In Willingham v. Macon Tel. Publ’g Co., 507 F.2d 1084 (5th Cir. 1975) (en banc), we addressed a Title VII sex discrimination claim by a male job applicant who was denied a position because his hair was too long. Although the employer interpreted its neutral dress/grooming policy to prohibit the wearing of long hair only by men, and although the plaintiff argued that he was the victim of sexual stereotyping (i.e., the view that only women should have long hair), we affirmed the grant of summary judgment in favor of the employer. See id. at 1092–93.
We held in Willingham that “[e]qual employment opportunity,” which was the purpose of Title VII, “may be secured only when employers are barred from discriminating against employees on the basis of immutable characteristics, such as race and national origin. Similarly, an employer cannot have one hiring policy for men and another for women if the distinction is based on some fundamental right. But a hiring policy that distinguishes on some other ground, such as grooming or length of hair, is related more closely to the employer’s choice of how to run his business than equality of employment opportunity.” Id. at 1091. We “adopt[ed] the view . . . that distinctions in employment practices between men and women on
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the basis of something other than immutable or protected characteristics do not inhibit employment opportunity in violation of [Title VII].” Id. at 1092. And we approved the district court’s alternative ground for affirming the grant of summary judgment in favor of the employer—that because grooming and hair standards were also imposed on female employees, men and women were treated equally. See id. In closing, we reiterated that “[p]rivate employers are prohibited from using different hiring policies for men and women only when the distinctions used relate to immutable characteristics or legally protected rights.” Id.4
Willingham involved hair length in the context of a sex discrimination claim, but in Garcia v. Gloor, 618 F.2d 264 (5th Cir. 1980), we applied the immutable characteristic limitation to national origin, another of Title VII’s protected categories. In Garcia a bilingual Mexican-American employee who worked as a salesperson was fired for speaking Spanish to a co-worker on the job in violation of his employer’s English-only policy, and he alleged that his termination was based on his national origin in violation of Title VII (which we referred to as the “EEO Act”). We affirmed the district court’s judgment in favor of the employer following a bench trial. We noted that an expert witness called by the employee had “testified that the Spanish language is the most important aspect of ethnic
4 On several occasions we have reaffirmed the central holding of Willingham that Title VII protects against discrimination based on immutable characteristics, i.e., those that an employee is born with or cannot change. See, e.g., Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1389 (11th Cir. 1998); Gilchrist v. Bolger, 733 F.2d 1551, 1553 (11th Cir. 1984).
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identification for Mexican-Americans, and it is to them what skin color is to others,” and that testimony formed part of the basis for the claim that the employer’s policy was unlawful. See id. at 267. Although the district court had found that there were other reasons for the employee’s dismissal, we assumed that the use of Spanish was a significant factor in the employer’s decision. See id. at 268.
We explained that neither Title VII nor common understanding “equates national origin with the language that one chooses to speak,” and noted that the English-only rule was not applied to the employee as a “covert basis for national origin discrimination.” Id. Though the employee argued that he was discriminated against on the basis of national origin “because national origin influences or determines his language preference,” we were unpersuaded because the employee was bilingual and was allowed to speak Spanish during breaks. Id. And even if the employer had no genuine business need for the English-only policy, we said that “[n]ational origin must not be confused with ethnic or sociocultural traits or an unrelated status, such as citizenship or alienage.” Id. at 269. Citing Willingham, we emphasized that Title VII “focuses its laser of prohibition” on discriminatory acts based on matters “that are either beyond the victim’s power to alter, or that impose a burden on an employee on one of the prohibited bases.” Id.
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The employee in Garcia also argued that the employer’s English-only policy was “discriminatory in impact, even if that result was not intentional, because it was likely to be violated only by Hispanic-Americans and that, therefore, they ha[d] a higher risk of incurring penalties.” Id. at 270. We rejected this argument as well because “there is no disparate impact if the rule is one that the affected employee can readily observe and nonobservance is a matter of individual preference,” and Title VII “does not support an interpretation that equates the language an employee prefers to use with his national origin.” Id.
What we take away from Willingham and Garcia is that, as a general matter, Title VII protects persons in covered categories with respect to their immutable characteristics, but not their cultural practices. See Willingham, 507 F.2d at 1092; Garcia, 618 F.2d at 269. And although these two decisions have been criticized by some, see, e.g., Camille Gear Rich, Performing Racial and Ethnic Identity: Discrimination by Proxy and the Future of Title VII, 79 N.Y.U. L. REV. 1134, 1213–21 (2004), we are not free, as a later panel, to discard the immutable/mutable distinction they set out. See Cohen v. Office Depot, Inc., 204 F.3d 1069, 1076 (11th Cir. 2000) (“[T]he prior panel precedent rule is not dependent upon a subsequent panel’s appraisal of the initial decision’s correctness. Nor is the application of the rule dependent upon the skill of the attorneys or
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wisdom of the judges involved in the prior decision—upon what was argued or considered.”).
We recognize that the distinction between immutable and mutable characteristics of race can sometimes be a fine (and difficult) one, but it is a line that courts have drawn. So, for example, discrimination on the basis of black hair texture (an immutable characteristic) is prohibited by Title VII, while adverse action on the basis of black hairstyle (a mutable choice) is not. Compare, e.g., Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 168 (7th Cir. 1976) (en banc) (recognizing a claim for racial discrimination based on the plaintiff’s allegation that she was denied a promotion because she wore her hair in a natural Afro), with, e.g., Rogers v. Am. Airlines, Inc., 527 F. Supp. 229, 232 (S.D.N.Y. 1981) (holding that a grooming policy prohibiting an all-braided hairstyle did not constitute racial discrimination, and distinguishing policies that prohibit Afros, because braids are not an immutable characteristic but rather “the product of . . . artifice”). As one commentator has put it, “the concept of immutability,” though not perfect, “provides a rationale for the protected categories encompassed within the antidiscrimination statutes.” Sharona Hoffman, The Importance of Immutability in Employment Discrimination Law, 52 WM. & MARY L. REV. 1483, 1514 (2011).
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Critically, the EEOC’s proposed amended complaint did not allege that dreadlocks themselves are an immutable characteristic of black persons, and in fact stated that black persons choose to wear dreadlocks because that hairstyle is historically, physiologically, and culturally associated with their race. That dreadlocks are a “natural outgrowth” of the texture of black hair does not make them an immutable characteristic of race. Under Willingham and Garcia, the EEOC failed to state a plausible claim that CMS intentionally discriminated against Ms. Jones on the basis of her race by asking her to cut her dreadlocks pursuant to its race-neutral grooming policy. The EEOC’s allegations— individually or collectively—do not suggest that CMS used that policy as proxy for intentional racial discrimination.5
C The EEOC admitted in its proposed amended complaint that CMS’ grooming policy is race-neutral, but claimed that a “prohibition on dreadlocks in the workplace constitutes race discrimination” because dreadlocks are a racial characteristic, i.e., they “are a manner of wearing the hair that is physiologically and culturally associated with people of African descent.” So, as noted earlier, the
5 The EEOC did assert that dreadlocks are an immutable characteristic of black persons, but it made that assertion (which conflicted with what the proposed amended complaint alleged) only in its motion for leave to amend. See D.E. 21 at 1. We do not consider this assertion, for facts contained in a motion or brief “cannot substitute for missing allegations in the complaint.” Kedzierski v. Kedzierski, 899 F.2d 681, 684 (7th Cir. 1990). Accord Associated Press v. All Headline News Corp., 608 F. Supp. 2d 454, 464 (S.D.N.Y. 2009) (“Conclusory assertions in a memorandum of law are not a substitute for plausible allegations in a complaint.”).
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claim that CMS intentionally discriminated against Ms. Jones on the basis of her race depends on the EEOC’s conception of what “race” means (and how far it extends) under Title VII. See Br. of EEOC at 20 (“In the Title VII context, if the individual expression is tied to a protected race, discrimination based on such expression is a violation of the law.”).
In support of its interpretation of Title VII, the EEOC relies on its own Compliance Manual. See EEOC Compliance Manual, § 15-II, at 4 (2006) (“Title VII prohibits employment discrimination against a person because of cultural characteristics often linked to race or ethnicity, such as a person’s name, cultural dress and grooming practices, or accent or manner of speech.”). But even if we could ignore Willingham and Garcia, the Compliance Manual does not save the day for the EEOC.
“[T]he rulings, interpretations, and opinions” of an agency charged with enforcing a particular statute, “while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). The Compliance Manual, therefore, is entitled to deference “only to the extent that [it has] the power to persuade.” Christensen v. Harris Cty., 529 U.S. 576, 587 (2000) (citation and internal quotation marks omitted). Factors relevant to determining the persuasiveness of the Compliance
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Manual, and thus the weight given to the EEOC’s guidance, include “the thoroughness evident in its consideration, the validity of its reasoning, [and] its consistency with earlier and later pronouncements[.]” Skidmore, 323 U.S. at 140.
The Compliance Manual contravenes the position the EEOC took in an administrative appeal less than a decade ago. See Thomas v. Chertoff, Appeal No. 0120083515, 2008 WL 4773208, at *1 (E.E.O.C. Office of Federal Operations Oct. 24, 2008) (concluding, in line with federal cases like Willingham and Rogers, that a grooming policy interpreted to prohibit dreadlocks and similar hairstyles lies “outside the scope of federal employment discrimination statutes,” even when the prohibition targets “hairstyles generally associated with a particular race”). The EEOC attempts to characterize Thomas as a case about “hair length,” which it concedes is not an immutable trait, as opposed to “natural hair texture” or the “other racial characteristics presented here.” Reply Br. of EEOC at 27 n.5. That is not a basis for distinction, however, because the complainant in Thomas specifically disputed the employer’s hair length policy in the context of “African American males who wear ethnic hair styles such as braids.” See Thomas, 2008 WL 4773208, at *1. And the Commission, in dismissing his complaint, cited Willingham and Rogers approvingly to support the proposition that “prohibitions against ‘ethnic’ hairstyles generally associated with a particular race or ethnic group” are “typically outside the scope of federal employment discrimination
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statutes because they do not discriminate on the basis of immutable characteristics.” Id. In our view, the Compliance Manual is a change of course from Thomas and, because the EEOC has not provided a reasoned justification for this shift, we choose to not give its guidance much deference or weight in determining the scope of Title VII’s prohibition of racial discrimination. See, e.g., Young, 135 S. Ct. at 1352 (declining to rely significantly on the EEOC Compliance Manual because its guidelines were promulgated recently, took a position about which the EEOC’s previous guidelines were silent, and contradicted positions the EEOC had previously taken).
The Compliance Manual also runs headlong into a wall of contrary caselaw. In the words of a leading treatise, “[c]ourts generally have upheld facially neutral policies regarding mutable characteristics, such as facial hair, despite claims that the policy has an adverse impact on members of a particular race or infringes on the expression of cultural pride and identification.” BARBARA LINDEMANN & PAUL GROSSMAN, 1 EMPLOYMENT DISCRIMINATION LAW 6-5 (5th ed. 2012).
As far as we can tell, every court to have considered the issue has rejected the argument that Title VII protects hairstyles culturally associated with race. See Cooper v. Am. Airlines, Inc., 149 F.3d 1167, 1998 WL 276235, at *1 (4th Cir. May 26, 1998) (upholding district court’s 12(b)(6) dismissal of claims based on a grooming policy requiring that braided hairstyles be secured to the head or at the
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nape of the neck); Campbell v. Alabama Dep’t of Corr., No. 2:13-CV-00106-RDP, 2013 WL 2248086, at *2 (N.D. Ala. May 20, 2013) (“A dreadlock hairstyle, like hair length, is not an immutable characteristic.”); Pitts v. Wild Adventures, Inc., No. CIV.A.7:06-CV-62-HL, 2008 WL 1899306, at *5–6 (M.D. Ga. Apr. 25, 2008) (holding that a grooming policy which prohibited dreadlocks and cornrows was outside the scope of federal employment discrimination statutes because it did not discriminate on the basis of immutable characteristics); Eatman v. United Parcel Serv., 194 F. Supp. 2d 256, 259–67 (S.D.N.Y. 2002) (holding that an employer’s policy prohibiting “unconventional” hairstyles, including dreadlocks, braids, and cornrows, was not racially discriminatory in violation of Title VII); McBride v. Lawstaf, Inc., No. CIV. A.1:96-CV-0196C, 1996 WL 755779, at *2 (N.D. Ga. Sept. 19, 1996) (holding that a grooming policy prohibiting braided hairstyles does not violate Title VII); Rogers, 527 F. Supp. at 232 (holding that a grooming policy prohibiting an all-braided hairstyle did not constitute racial discrimination, and distinguishing policies that prohibit Afros, because braids are not an immutable characteristic but rather “the product of . . . artifice”); Carswell v. Peachford Hosp., No. C80-222A, 1981 WL 224, at *2 (N.D. Ga. May 26, 1981) (“There is no evidence, and this court cannot conclude, that the wearing of beads in one’s hair is an immutable characteristic, such as national origin, race, or sex. Further, this court cannot conclude that the prohibition of beads in the hair by an employer is a
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subterfuge for discrimination.”); Wofford v. Safeway Stores, Inc., 78 F.R.D. 460, 470 (N.D. Cal. 1978) (explaining that the “even-handed application of reasonable grooming regulations has uniformly been held not to constitute discrimination on the basis of race”) (internal citations omitted); Thomas v. Firestone Tire & Rubber Co., 392 F. Supp. 373, 375 (N.D. Tex. 1975) (holding that a grooming policy regulating hair length and facial hair, which was applied even-handedly to employees of all races, did not violate Title VII or 42 U.S.C. § 1981). See also Brown v. D.C. Transit System, 523 F.2d 725, 726 (D.C. Cir. 1975) (rejecting claim by black male employees that race-neutral grooming regulation, which prohibited most facial hair, violated Title VII despite contention by employees that the regulation was “an ‘extreme and gross suppression of them as black men and (was) a badge of slavery’ depriving them ‘of their racial identity and virility’”).
D We would be remiss if we did not acknowledge that, in the last several decades, there have been some calls for courts to interpret Title VII more expansively by eliminating the biological conception of “race” and encompassing cultural characteristics associated with race. But even those calling for such an interpretive change have different visions (however subtle) about how “race” should be defined. Compare, e.g., Ian F. Haney Lopez, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 HARV. C.R.-
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C.L. L. REV. 1, 7 (1994) (defining “race” as “a vast group of people loosely bound together by historically contingent, socially significant elements of their morphology and/or ancestry”), and Rich, Performing Racial and Ethnic Identity, 79 N.Y.U. L. REV. at 1142 (“There is an urgent need to redefine Title VII’s definition of race and ethnicity to include both biological, visible racial/ethnic features and performed features associated with racial and ethnic identity.”), with, e.g., D. Wendy Greene, Title VII: What’s Hair (and Other Race-Based Characteristics) Got to Do With It?, 79 U. COLO. L. REV. 1355, 1385 (2008) (“Race includes physical appearances and behaviors that society, historically and presently, commonly associates with a particular racial group, even when the physical appearances and behavior are not ‘uniquely’ or ‘exclusively’ ‘performed’ by, or attributed to a particular racial group.”), and Barbara J. Flagg, Fashioning a Title VII Remedy for Transparently White Subjective Decisionmaking, 104 YALE L. J. 2009, 2012 (1995) (suggesting that discrimination on the basis of race might include “personal characteristics that . . . intersect seamlessly with [one’s racial] self-definition”).
Yet the call for interpreting “race” as including culture has not been unanimous. This is in part because culture itself is (or can be) a very broad and ever-changing concept. See, e.g., Richard T. Ford, Race as Culture: Why Not?, 47 U.C.L.A. L. REV. 1803, 1813 (2000) (“Culture is a much more problematic
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category for legal intervention than race, because culture in a broad sense encompasses almost any possible motivation for human behavior.”). Cf. Annelise Riles, Cultural Conflicts, 71 L. & CONTEMP. PROBS. 273, 285 (2008) (“[C]ultures are hybrid, overlapping, and creole: forces from trade to education to migration to popular culture and transnational law ensure that all persons participate in multiple cultures at once. Cultural elements circulate globally, and they are always changing. From this point of view, ‘culture’ is more of a constant act of translation and re-creation or re-presentation than it is a fixed and given thing.”).
Assuming that general definitional consensus could be achieved among those who advocate the inclusion of culture within the meaning of “race,” and that courts were willing to adopt such a shared understanding of Title VII, that would only be the beginning of a difficult interpretive battle, and there would be other very thorny issues to confront, such as which cultural characteristics or traits to protect. See, e.g., Kenji Yoshino, Covering, 111 YALE L. J. 769, 893 (2002) (“Even [in] . . . a culture-race analysis . . . one must still ask whether covering demands pertaining to grooming are sufficiently constitutive of race to violate bans on race discrimination.”). There would also be the related question of whether cultural characteristics or traits associated with one racial group can be absorbed by or transferred to members of a different racial group. At oral argument, for example, the EEOC asserted that if a white person chose to wear dreadlocks as a
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sign of racial support for her black colleagues, and the employer applied its dreadlocks ban to that person, she too could assert a race-based disparate treatment claim.
The resolution of these issues, moreover, could itself be problematic. See Ford, Race as Culture, 47 U.C.L.A. L. REV. at 1811 (explaining that recognizing a right to cultural protection under the ambit of “race” would require “courts to determine which expressions are authentic and therefore deserving of protection,” and the “result will often be to discredit anyone who does not fit the culture style ascribed to her racial group”). Even if courts prove sympathetic to the “race as culture” argument, and are somehow freed from current precedent, how are they to choose among the competing definitions of “race”? How are they (and employers, for that matter) to know what cultural practices are associated with a particular “race”? And if cultural characteristics and practices are included as part of “race,” is there a principled way to figure out which ones can be excluded from Title VII’s protection?
We cannot, and should not, forget that we—and courts generally—are tasked with interpreting Title VII, a statute enacted by Congress, and not with grading competing doctoral theses in anthropology or sociology. Along these lines, consider the critique by Richard Ford of the attempt to have Title VII protect cultural characteristics or traits associated with race:
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Once a status is ascribed, it is “immutable” in the pragmatic sense that the individual cannot readily alter it. This is the sense in which immutability is relevant to anti-discrimination law.
The mutability of a racial characteristic then, is strictly speaking, irrelevant, but not because—as difference discourse would have it—anti-discrimination law should prohibit discrimination based on mutable as well as immutable racial characteristics, but rather because racial characteristics generally are irrelevant. And it is quite right to say that anti-discrimination law prohibits discrimination on the basis of “immutable characteristics.” But it does not follow that the immutable characteristics in question are characteristics of race; instead they are any characteristic of potential plaintiffs that may be proxies for racial status.
This cuts against some common locutions that the law prohibits discrimination against racial groups; that it prohibits discrimination on the basis of racial characteristics; that it protects racial minorities; worst of all that it “protects race.” On my formulation it does none of these. Indeed it could not do these things because to do them it would first require a definition of a racial group, racial characteristic, and/or race—none of which courts have readily [at] hand. Instead, law prohibits discrimination on the basis of race—something it can do without knowing what race is and indeed without accepting that race is something that is knowable. To prohibit discrimination on the basis of race, we need only know that there is a set of ideas about race that many people accept and decide to prohibit them from acting on the basis of these ideas.
Richard Ford, RACIAL CULTURE: A CRITIQUE 103 (2005).
Our point is not to take a stand on any side of this debate—we are, after all,
bound by Willingham and Garcia—but rather to suggest that, given the role and
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complexity of race in our society, and the many different voices in the discussion, it may not be a bad idea to try to resolve through the democratic process what “race” means (or should mean) in Title VII. Cf. Juan F. Perea, Ethnicity and Prejudice: Reevaluating ‘National Origin’ Discrimination under Title VII, 35 WM. & MARY L. REV. 805, 861 (1994) (proposing that Congress amend Title VII to protect against discrimination based on ethnic traits).6
V Ms. Jones told CMS that she would not cut her dreadlocks in order to secure a job, and we respect that intensely personal decision and all it entails. But, for the reasons we have set out, the EEOC’s original and proposed amended complaint did not state a plausible claim that CMS intentionally discriminated against Ms. Jones because of her race. The district court therefore did not err in dismissing the original complaint and in concluding that the proposed amended complaint was futile. AFFIRMED.
6 Religion is, of course, different from race in many ways, but it bears noting that Congress amended Title VII in 1972 to expand protection for “religious observance and practice.” See 42 U.S.C. § 2000e(j); E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2034 (2015). It has not, however, prohibited discrimination on the basis of cultural practices associated with race.
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UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

David J. Smith Clerk of Court

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303
December 13, 2016

MEMORANDUM TO COUNSEL OR PARTIES
Appeal Number: 14-13482-GG Case Style: Equal Employment Opportunity C v. Catastrophe Management Solutio District Court Docket No: 1:13-cv-00476-CB-M

For rules and forms visit www.ca11.uscourts.gov

This Court requires all counsel to file documents electronically using the Electronic Case Files ("ECF") system, unless exempted for good cause. Enclosed is a copy of the court's decision filed today in this appeal. Judgment has this day been entered pursuant to FRAP 36. The court's mandate will issue at a later date in accordance with FRAP 41(b).
The time for filing a petition for rehearing is governed by 11th Cir. R. 40-3, and the time for filing a petition for rehearing en banc is governed by 11th Cir. R. 35-2. Except as otherwise provided by FRAP 25(a) for inmate filings, a petition for rehearing or for rehearing en banc is timely only if received in the clerk's office within the time specified in the rules. Costs are governed by FRAP 39 and 11th Cir.R. 39-1. The timing, format, and content of a motion for attorney's fees and an objection thereto is governed by 11th Cir. R. 39-2 and 39-3.
Please note that a petition for rehearing en banc must include in the Certificate of Interested Persons a complete list of all persons and entities listed on all certificates previously filed by any party in the appeal. See 11th Cir. R. 26.11. In addition, a copy of the opinion sought to be reheard must be included in any petition for rehearing or petition for rehearing en banc. See 11th Cir. R. 35-5(k) and 40-1 .
Counsel appointed under the Criminal Justice Act (CJA) must submit a voucher claiming compensation for time spent on the appeal no later than 60 days after either issuance of mandate or filing with the U.S. Supreme Court of a petition for writ of certiorari (whichever is later) via the eVoucher system. Please contact the CJA Team at (404) 335-6167 or cja_evoucher@ca11.uscourts.gov for questions regarding CJA vouchers or the eVoucher system.
Pursuant to Fed.R.App.P. 39, costs taxed against appellant.
The Bill of Costs form is available on the internet at www.ca11.uscourts.gov
For questions concerning the issuance of the decision of this court, please call the number referenced in the signature block below. For all other questions, please call Joe Caruso, GG at (404) 335-6177.
Sincerely,
DAVID J. SMITH, Clerk of Court
Reply to: Jeff R. Patch Phone #: 404-335-6161

OPIN-1A Issuance of Opinion With Costs