The opinion of the court was delivered by: Sidney H. Stein, United States District Judge
Charles D. Eatman brings this employment discrimination action against
United Parcel Service ("UPS") pursuant to Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). UPS now moves
pursuant to Fed. R. Civ. P. 56 for summary judgment in its favor on the
ground that there is no genuine issue of material fact that could enable
a reasonable jury to conclude that UPS discriminated against Eatman, a
former UPS package car driver, because of his race, his religion, or in
retaliation for his having complained to UPS about racial and religious
discrimination. For the reasons set forth below, UPS's motion is granted
and Eatman's complaint is dismissed.
I. Eatman's Decision to Wear Locked Hair
African locked hair is a hairstyle in which sections of hair are
hand-rolled together in tight. interwoven spirals. (Evans Aff. ¶ 2;
Evans Dep. at 99-100; Eatman Dep. at 26.) The resulting locks, commonly
known as "dreadlocks," cannot be combed out. (Evans Aff. ¶ 2.)
According to expert testimony offered by plaintiff
"in general," only
persons of African descent, whose hair is naturally "coiled," can properly
maintain locks. (Evans Aff. ¶ 2.) However, according to the same
expert, locked hair is "universal" and "has appeared and thrived [or at
least been `imitated' or `emulated'] throughout the world in Africa,
India, Asia, the Pacific Islands, Greece, Ethiopia (Abyssinia) and
Nazareth." (Evans Dep. at 86-89.)
After putting "a lot of thought" into the decision, Eatman, who is
black, began wearing locks in February 1995 as "an outward expression of
an internal commitment to [his] Protestant faith as well as [his] Nubian
belief system." (Eatman Aff. ¶¶ 2, 4-5.) According to Eatman,
"[c]ountless religious texts and the Bible have taught [him] about the
strength and divinity of locks." (Eatman Aff. ¶ 3; Eatman Dep. at
27.) Moreover, because he interprets "several passages of the Bible to
mean that hair is divine and that Jesus wore his wooly hair in locks,"
wearing locks is a way for him to emulate Jesus. (Eatman Aff. ¶ 3;
Eatman Dep. at 27-28, 49.) At the same time, through his Nubian beliefs
and "knowing more about [his] ancestry," Eatman had come to be
"enlightened" about locked hair: "the strength behind locks," "the
spiritual instance of it," and its connection to African identity and
heritage. (Eatman Dep. at 29-30; Eatman Aff. ¶¶ 2-5; Evans Dep. at
Although other members of Eatman's Protestant congregation wear locks,
Eatman's locked hair is, as he himself describes it, a "personal choice,"
and "not a mandate" of his religion. (Eatman Dep. at 32-33: Eatman Aff.
Given the importance of locks to Eatman, he believes that wearing a hat
over them suppresses who he is and covers up something which to him is
"beautiful" and "which is part of how [he] project[s] [him]self." (Eatman
Dep. at 45-46.) However, Eatman's Protestant faith does not frown on
hats, (Eatman Dep. at 49-50), and Nubianism, though in part a celebration
of hair, does not mandate an uncovered head or punish a covered one,
(Evans Dep. at 83-84)
II. The UPS Appearance Guidelines and Hat Accommodation
UPS maintains appearance guidelines for drivers. (Schultz Decl. ¶
4.) Pursuant to a collective bargaining agreement between UPS and the
driver's union, the drivers must comply with the guidelines which provide
that, for male drivers, "[h]air styles should be worn in a businesslike
manner." (Schultz Decl. Exs. A & B.)
In the metropolitan New York area, UPS labor relations manager Thomas
Schultz is responsible for interpreting and enforcing the guidelines.
(Schultz Decl. ¶ 9.) In this case, he did so in conjunction with
Juan Vicente, the manager of the UPS center located on 43rd Street, and
James Surace, Eatman's direct supervisor. (Schultz Decl. ¶¶ 10-15.)
Schultz uses his "common sense" to determine which hairstyles are not
"businesslike." (Schultz Dep. at 22.) He finds ponytails, mohawks, green
hair, "carved" shapes, and locked hair — either short or long
— unacceptable. (Schultz Dep. at 22, 29; 48-49.) Since he became
labor relations manager in 1995, Schultz has accommodated drivers with
"unbusinesslike" hairstyles by permitting them to retain their hairstyles
as long as they cover them with a hat while driving. (Schultz Decl.
¶ 9; Vicente Dep. 69-70.)
As of January 1999, eighteen UPS drivers in the metropolitan New York
area were required to wear hats in order to cover their "unconventional"
hairstyles, which included "dreadlocks," "braids," "corn rolls," a "`dew
rag,'" and a "ponytail." All but one were African-Americans. living Aff.
III. The Conflict Between Eatman's Locks and the UPS Hat Policy
Eatman, who started working for UPS as a package car driver in 1989,
did not begin wearing locks until 1995. (Eatman Dep. at 20, 28.) In the
summer of 1996, Vicente and Surace informed him that UPS's appearance
guidelines now required all employees with locked hair, including him, to
wear a hat. (Eatman Aff. ¶ 9; Eatman Dep. 36-38: Schultz Decl.
¶¶ 10-11.) At first, UPS told Eatman that he could wear either a
cold-weather "woolen skully," a sun-visor, or a mesh or canvas baseball
cap. (Eatman Dep. 37-39; Eatman Aff. ¶¶ 16-17.) The sun visor,
however, "wasn't acceptable" to Vicente. (Eatman Dep. at 38-39; Eatman
Aff. ¶ 17.) Moreover, the baseball caps were "too small" because
Eatman's hair hung outside of them, and that was also unacceptable to
UPS. (Eatman Dep. at 39-40; Eatman Aff. ¶ 17.) Eatman was further
told that he could not wear his own brown, light cotton hat. (Eatman
Dep. at 41; Eatman Aff. ¶ 17.) Eatman felt he had no choice but to
wear the wool hat. (Eatman Dep. at 39; Eatman Aff. ¶ 17.)
Eatman told Vicente that he thought the hat policy was
"discriminatory." (Eatman Aff. ¶ 16, Ex. B at 9-10.) Nevertheless,
he did wear the wool hat "for a time." (Eatman Dep. at 38; Eatman Aff.
¶ 16.) According to Eatman, however, the "wool hat was too hot to
wear[,] especially in summer and warm weather." (Eatman Aff. ¶ 17,
Ex. B at 16.) As he told UPS management, wearing it made him "feel faint"
and gave him headaches. (Eatman Aff. ¶ 17. Ex. B at 12. 14-7.)
Moreover, as he explained at his deposition, it "destroyed" at least ten
of his locks. (Eatman Dep. at 41; Eatman Aff. ¶ 17.) Nekhena Evans,
Eatman's expert "locktician," explains that "wearing a thick wool ski hat
smothers locked hair, causing the hair to become over-heated and moist."
(Evans Aff. ¶ 3.) This causes two problems. First, "the locks become
more susceptible to fragmentation, weakness, splitting, matting, and
breakage;" second, "the prolonged exposure of a thick wool ski hat on
locked hair causes dandruff, louse, bacteria, mold and other fungi to
breed and thrive within the locks and on the scalp." (Evans Aff. ¶
Some months later, Eatman's supervisors asserted that he was not
complying with the hat policy. (Eatman Aff. Ex. B.) Vicente and other
supervisors met with Eatman and union representatives on four separate
occasions in February and March of 1997 to discuss the situation. At the
final meeting, on March 21, Vicente told Eatman that he had to wear a
wool hat while on the job. (Clark Decl. Ex. C; Eatman Aff. ¶ 10,
Ex. B at 14.)
After that, Eatman wore the hat "a fair amount of time" until he went
on disability leave in April 1997. (Eatman Dep. at 42.) When he returned
to work in September 1997, however, he did not "wear the hat that often."
(Eatman Dep. at 43-45.) He told UPS in November that "stress" was causing
his hair to break off. (Eatman Aff. Ex. B at 17.)
The record does not reflect exactly what happened from then until May
1998. Events came to a boil, however, on May 18, 1998, when Vicente,
after consulting with Schultz, told Eatman that he would be suspended if
he continued to refuse to wear the hat. (Eatman Dep. at 53; Vicente Dep.
at 184: Schultz Decl. ¶ 12.) Eatman refused, and Vicente suspended
him. (Eatman Dep. at 53-54; Vicente Dep. at 184-185.) Schultz and Vicente
next met with Eatman and union representatives on June 3, 1998, at which
point Eatman again refused to wear the hat to cover his ...