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Xodus v. Wackenhut Corp.

August 27, 2010

LORD OSUNFARIAN XODUS, PLAINTIFF-APPELLANT,
v.
WACKENHUT CORPORATION, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:07-cv-01431-Donald E. Walter, Judge.

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

ARGUED APRIL 15, 2010

Before BAUER, ROVNER and HAMILTON, Circuit Judges.

Lord Osunfarian Xodus appeals the district court's judgment that Wackenhut did not engage in religious discrimination when it refused to hire him on account of his dreadlocked hairstyle. Specifically, Xodus disputes the court's conclusion that he never brought his religious beliefs to Wackenhut's attention. We affirm.

I. BACKGROUND

A dreadlock is a "ropelike strand of hair formed by matting or braiding." Merriam Webster's Collegiate Dictionary 352 (10th ed. 1986). Rastafarians believe dread-locks symbolize a bond with God, citing this passage in the Bible: "[N]o razor shall come upon his head;... and he shall let the locks of hair of his head grow long." Numbers 6:5 (Revised Standard Version). Xodus, a Rastafarian and Hebrew Israelite adherent, sued Wackenhut, claiming it violated Title VII when it did not hire him as a security guard because he would not cut his dreadlocks.

A few days before Xodus interviewed for a job with Wackenhut, Securitas, another security firm, fired him because he refused to cut his hair to comply with the company's grooming policy. On July 7, 2004, the morning of his Wackenhut interview, Xodus was refused a security position at Allied Security because he told them he would not cut his dreadlocks. Then he went to Wackenhut where he interviewed with manager Clarence McCuller.

Before trial, the district court denied Wackenhut's motion for summary judgment on liability, holding that a genuine issue of fact existed as to whether Xodus in-formed McCuller of his religious beliefs. But the court granted the company's motion for summary judgment on damages, holding that Xodus failed to mitigate his damages by exercising reasonable diligence to find alternative employment, and that he failed to support his request for punitive damages by establishing that Wackenhut acted recklessly or with malice.

During his two-day bench trial, Xodus had to prove that he had a religious practice that conflicted with one of Wackenhut's employment requirements, that he brought his religious practice to the company's attention, and that was the basis for Wackenhut's refusal to hire. The parties agreed with Judge Donald Walter of the Western District of Louisiana, sitting by designation, that the only fact at issue in the case was whether Xodus actually brought to McCuller's attention that his religious beliefs precluded him from cutting his dreadlocks.

Xodus and McCuller testified differently about whether religion was discussed during the interview. According to Xodus, McCuller first told him about Wackenhut and the position for which they were hiring, its pay and benefits. McCuller then asked Xodus about his prior work history, state certification, name change, role at Securitas and the reason he was fired. Xodus testified that he told McCuller Securitas fired him because he wore dreadlocks and refused to cut them because of his religion. McCuller told him that Wackenhut had a similar grooming policy and that he would have to cut his hair to gain employment. McCuller said he could hire him to work security in a shipping warehouse, but that none of those positions were available at that time. According to Xodus, McCuller told him that Wackenhut could not offer him a job at that time, shook his hand, and walked him to the door.

McCuller testified that he noticed Xodus' dreadlocks as soon as the two met and he immediately initiated the discussion of Wackenhut's grooming policy. According to McCuller, he told Xodus he would not be hired unless he cut his hair. Xodus then got up, began to walk out of the room and said, "That's why I'm suing Securitas... its against my belief." McCuller testified that he was not aware of the Rastafarian religion and did not equate Xodus' use of the word "belief" with religion. He said he told Xodus as he left that he could always reapply if he "took out his braids."

In addition to the witness testimony, Xodus introduced a copy of an email McCuller sent to his boss, Robert Krol, in December 2004, briefly describing the interview. McCuller told Krol that he had immediately informed Xodus about Wackenhut's grooming policy, and when Xodus said he would not cut his hair, McCuller says he told Xodus he could not offer him employment but that he was welcome to reapply if he took out the braids. Xodus also placed into evidence a memo Krol wrote to his superiors at Wackenhut summarizing his investigation into the incident. The memo says Xodus told McCuller that cutting his hair was "against my belief" and then got up and left the office.

Wackenhut also introduced EEOC charges Xodus signed and filed against Wackenhut and four other security firms, in an attempt to impeach his testimony. While four of the charges say that Xodus brought his religious belief to the interviewer's attention, only the Wackenhut charge does not. The judge then prohibited Xodus from testifying that he had told the EEOC worker who typed the charge that he brought his religion to McCuller's attention but the worker, and not Xodus, had actually typed the charge document and omitted the statement. The court also excluded the EEOC worker's notes, citing Novitsky v. American Consulting Engineers, L.L.C., 196 F.3d 699, 701 (7th Cir. 1999), as prohibiting discussion at trial of anything outside the EEOC charge. Though Xodus' counsel, by questioning his client about the EEOC visit, seemed to be trying to use the notes as a prior consistent statement, he never formally offered them as such and made no offer of proof in response to the judge's ruling.

At the end of the trial, the court found in favor of Wackenhut, finding that Xodus failed to bring his religious belief to its attention during the interview. The opinion recounted the testimony and other evidence and indicated that, faced with the two contradicting stories, the judge found McCuller more credible than Xodus; he found McCuller's testimony internally consistent and corroborated by both the email and the memo. In light of the fact that his dreadlocks cost him two security positions that week, the judge did not believe Xodus' testimony that the interview ended amicably ...


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