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KEYS v. CONTINENTAL ILLINOIS NAT. BANK & T. CO. OF CHICAGO

United States District Court, Northern District of Illinois


April 16, 1973

CHARLES L. KEYS, PLAINTIFF,
v.
CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF CHICAGO, DEFENDANT.

The opinion of the court was delivered by: Bauer, District Judge.

MEMORANDUM OPINION AND ORDER

This cause comes on defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

This is a civil rights action brought by the plaintiff, a cost accountant, against his former employer, to allegedly vindicate his right to equal employment and freedom of expression guaranteed under the United States Constitution and protected by 42 U.S.C. § 1981. Jurisdiction is based upon Title 28 U.S.C. § 1331, 1332(a)(1) and 1343(4). The amount in controversy is alleged to exceed $10,000 exclusive of interest and costs. The plaintiff, Charles L. Keys, is a United States citizen and a resident of Chicago, Illinois. The defendant Continental Illinois Bank and Trust Company is incorporated in Illinois and has its principal place of business in the Northern District of Illinois.

The plaintiff in his complaint alleges, inter alia, the following facts:

  1. Plaintiff is a black-American male whose known
    American ancestry is primarily of Negroid-African
    descent. The plaintiff, like the majority of
    American males of Negroid-African ancestry, regards
    the display of facial hair growth in the form of
    mustaches, goatees, beards and long sideburns as
    traditional symbols of black-American masculinity.

  2. Plaintiff began employment with the defendant
    corporation on or about July 28, 1969, and remained
    employed until on or about May 4, 1971, at which
    time he was discharged for racial reasons.

  3. On or about April 23, 1971, plaintiff was informed
    of a new dress code being instituted by the
    defendant

    and that his physical appearance, specifically the
    length of his sideburns, was in violation of said
    dress code. On or about May 3, 1971, plaintiff was
    informed by defendant corporation, that if
    plaintiff's sideburns were not cut to conform with
    the dress code by the following day, a
    recommendation would be made for the termination of
    plaintiff's employment. On or about May 4, 1971
    plaintiff was informed that a recommendation had
    been made to the personnel division of the
    defendant corporation that plaintiff be terminated
    for failure to comply with defendant corporation's
    dress code. On or about May 7, 1971 plaintiff
    informed defendant corporation that he had no
    intention of further cutting his sideburns.
    Plaintiff was informed that he was being terminated
    from employment as of May 5, 1971 for failure to
    comply with bank regulations.

  4. The effect of defendant's dress code regulation is
    to have a chilling effect upon the plaintiff and
    other black men who seek to communicate black pride
    and beauty through the cultivation of facial hair
    growth; and that this would curtail plaintiff's
    right to express his black personality which is a
    symbolic expression of freedom of speech.*fn1

  5. The detrimental racist action of the defendant has
    altered the plaintiff's family-life structure from
    one of patriarchy to one of matriarchy, as the
    plaintiff is no longer the chief breadwinner of the
    family, thereby causing irreparable psychological
    damage to the plaintiff, and plaintiff's spouse and
    children. Defendant has further sought to punish,
    intimidate and cause undue hardship to the
    plaintiff for not conforming to racist white
    thoughts by maliciously attempting to delay and
    hinder the plaintiff's justifiable claims to
    unemployment compensation.

The plaintiff seeks to recover $500,000 as actual damages, and $500,000 as exemplary damages, plus the cost of this action.

The defendant, in its instant motion, contends that there are no material issues of fact and that defendant is entitled to summary judgment as a matter of law. In support of the instant motion, the defendant has filed affidavits and exhibits which disclose in relevant part:

  1. Plaintiff was employed on July 28, 1969. Prior to
    his employment, plaintiff completed an application
    for employment. Above the plaintiff's signature on
    the application appeared the following language:

    "I further understand and agree that my employment
  with the bank may be terminated at the discretion of
  the bank. . . . If employed, I will comply with all
  applicable bank rules and regulations now and
  hereafter in effect."

  2. In April, 1971, Continental adopted a formal dress
    and personal appearance code. When plaintiff failed
    to comply with the code by May 4, 1971, the date
    set by his superiors for compliance, plaintiff was
    sent to the Personnel Department by his supervisor
    with a recommendation that he be terminated. At
    this time, plaintiff was given another opportunity
    to comply with the code. After initially

    indicating a willingness to trim his sideburns to
    meet the code standards, plaintiff again refused to
    trim his sideburns to comply with the code and,
    therefore, was terminated on May 7, 1971. Between
    May, 1971 and November, 1971, five non-black
    employees were terminated for failure to comply
    with the code by reason of long hair and/or facial
    hair.

  3. Despite plaintiff's claims that he was
    discriminated against by Continental because he was
    black, plaintiff made the following admissions at
    his deposition:

    a) In his conversation with his supervisor and
    representatives of the Personnel Department about
    the code and his termination for refusal to comply
    with the code, plaintiff never once charged that
    the code discriminated against blacks (Dep. 45-46,
    57, 64 and 66), notwithstanding the fact that
    plaintiff discussed his problem with an attorney
    between the time the code was announced and the
    time he was terminated (Dep. 67).

    b) After the code was announced, plaintiff and four
    other employees drafted a petition opposing the
    code (Dep. 48). This petition makes no charge that
    the code discriminated against blacks. Plaintiff
    stated at the deposition that nothing significant
    was left out of the petition from his point of view
    (Dep. 49).

    c) Plaintiff was unwilling to trim his sideburns to
    keep his job at Continental, but in February, 1971,
    prior to the adoption of the code, plaintiff shaved
    off a beard he had grown because he "had a job
    interview" (Dep. 42).*fn2

The plaintiff, in response to the instant motion, generally admits the facts as set forth in the defendant's affidavits and exhibit, yet still claims without specification, that there are issues of fact and law which can only be determined at a hearing. The plaintiff does not support his position with any affidavits or verified denial of facts.

It is the opinion of this Court that there are no genuine issues of material fact and that summary judgment should be granted in favor of the defendant.

Rule 56(e) of the Federal Rules of Civil Procedure specifically provides, in relevant part:

    "When a motion for summary judgment is made and
  supported as provided in this rule, an adverse party
  may not rest upon the mere allegation or denials of
  his pleadings, but his response, by affidavits or as
  otherwise provided in this rule, must set forth
  specific facts showing that there is a genuine issue
  for trial. If he does not so respond, summary
  judgment, if appropriate, shall be entered against
  him."

The plaintiff has failed to comply with Rule 56(e) in that he has neither supported his position with affidavits nor has he set forth specific facts showing that there is a genuine issue for trial.

It is the opinion of this Court after examining the relevant pleadings, affidavits and exhibits that there are no material issues of fact in the instant action which would preclude summary judgment at this time.

It is well settled that under 42 U.S.C. § 1981 all persons within the jurisdiction of the United States shall have the same rights as are enjoyed by white citizens and that a black employee has a cause of action against an employer if he is discharged solely because of his race. Sanders v. Dobbs Houses Inc., 431 F.2d 1097 (5th Cir. 1971), cert. denied, 401 U.S. 948, 91 S.Ct. 935, 28 L. Ed.2d 231. However, the right to work and earn an honest living does not include, absent racial discrimination, the right to work for any particular individual or organization without such individual or organization's consent. See, e.g. Van Zandt v. McKee, 202 F.2d 490 (5th Cir. 1953). In the instant action the affidavits and exhibits reveal: (1) that the plaintiff refused to comply with the defendant's dress code although he had previously agreed to comply with all rules and regulations of his employer, (2) that prior to his termination, despite ample opportunity to do so, plaintiff never expressed any feeling that the code discriminated against him as a black, and (3) the code in fact was not used as a vehicle of racial discrimination for both black and white non-conformists had their employment terminated.

It is clear that the plaintiff's employment was terminated not because he was black but because he did not conform to the dress code. Since the plaintiff's loss of employment is not due to his race but to his personal choice of dress, the plaintiff fails to state a cause of action.

Moreover, the plaintiff contends that his right and the right of other black males to express their black pride via long hair was chilled by the defendant's dress code. The plaintiff has failed to present any case law to support his contention that an employee has a constitutional right to dress and groom himself in any manner he chooses irrespective of the dictates of his employer and the needs of his job. The Supreme Court has recently stated that jury bias stemming from beards and mode of dress does not reach the level of a constitutional violation. Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973). Likewise, a dismissal from employment based on a "bias" as to the mode of dress and grooming is not a per se violation of an individual's constitutional rights or the Civil Rights Acts. See Miller v. School District No. 167, 354 F. Supp. 922 (N.D.Ill., 1973); Abshire v. Chicago and Eastern Illinois Railroad Company, 352 F. Supp. 601 (N.D.Ill. 1972).

Accordingly, it is hereby ordered that the defendant's motion for summary judgment in its favor is granted.


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