JEAN DENNY; SEANDRIA DENNY, Plaintiffs-Appellants, v. ELIZABETH ARDEN SALONS, INCORPORATED, Defendant-Appellee.
No. 05-1228
United States Court of Appeals for the Fourth Circuit
Decided: August 9, 2006
PUBLISHED. Argued: May 25, 2006. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, District Judge. (CA-04-588-1)
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Affirmed in part, reversed in part, and remanded by published opinion. Judge Wilkinson wrote the opinion, in which Judge Niemeyer joined and in which Judge King joined as to Parts III and IV. Judge King wrote an opinion dissenting in part.
COUNSEL
OPINION
WILKINSON, Circuit Judge:
In this case an African American woman bought her mother a gift package from a beauty salon and day spa. Upon visiting the salon to check on her mother and to add a hair coloring to the package, a receptionist told her that there was “a problem” because the salon did not “do black people‘s hair.” The mother and daughter brought this suit against the salon under Title II of the Civil Rights Act of 1964,
We hold that the district court properly dismissed plaintiffs’ Title II claim, because the salon is not a “place of public accommodation,” as that
I.
Plaintiffs are Seandria Denny and her mother, Jean Denny. They are African American. Defendant is Elizabeth Arden Salons, Inc., which operates Red Door Salon and Spa, an upscale beauty salon and day spa with locations in Virginia and several other states. The salon offers its customers a variety of different beauty services, including hair, skin, and nail care, makeup artistry, and massages, facials, and other body treatments.
The dispute in this case arose from incidents at a Red Door salon in the Tysons Corner Shopping Center in Northern Virginia.
While Jean Denny was being served, Seandria Denny called the salon to request that it also color her mother‘s hair. Over the phone, the employee with whom she spoke agreed that the salon would perform the coloring. Seandria Denny indicated that she would arrive at the salon shortly to pay for the hair coloring (which cost extra) and to see how her mother was doing. Upon her arrival, she approached the receptionist, Raha Ashrafi, and told her that she would like to check on her mother. Ashrafi responded, “[w]ell, Ms. Denny, I think we have a problem.” The salon, she explained, did not “do black people‘s hair.” Denny suggested that her mother‘s hair was straight and similar to Caucasian hair, but Ashrafi continued to maintain that the salon did not do African American hair. Ashrafi indicated that the salon‘s manager, Chelsey Orth, would shortly be able to speak with Denny.
According to Seandria Denny, upon Orth‘s arrival, Orth reiterated the salon‘s refusal to work on Jean Denny‘s hair. Seandria Denny, outraged, suggested that one of the salon‘s eight or nine hair stylists should be able to do her mother‘s hair. Orth responded, however, that she had discussed the situation with each stylist, and all had refused. Seandria Denny told the salon not to touch her mother‘s hair and that she wanted her mother to leave once she was done with her massage. She then exited the salon, without having seen her mother during the visit. The record is unclear what treatments Jean Denny had received at the time her daughter left the salon.
Orth remembers the events quite differently. She contends that she spoke with Seandria Denny only about her mother‘s hair coloring. Since the hair coloring would have added an hour to Jean Denny‘s visit, Orth was unable to include it on such short notice. Orth claims that she explained this to Jean (but not Seandria) Denny, who responded that she did not want her hair colored in any event. Seandria Denny disputes that anyone from Elizabeth Arden ever suggested to her that the hair coloring could be done on a different day.
After Jean Denny had eaten lunch, one of Elizabeth Arden‘s employees shampooed her hair. Denny then had to wait approximately ten to fifteen minutes for a hair stylist, which, in her opinion, was a little long as compared to other customers. The hair stylist appears not to have asked Jean Denny how she wanted her hair styled, and Denny did not instruct her. Denny expected that the hair stylist would use hot curlers, but the stylist only blow-dried and round brushed Denny‘s hair. When she had finished, she gave Denny a mirror to view her hair, but never asked Denny if she approved. Denny was shocked when she saw her hair, because the stylist had left it looking like “a bush.”
Jean Denny was so surprised and embarrassed by her hair‘s appearance that she wanted to leave immediately. Without expressing disapproval, Denny got out of the chair, grabbed her coat, and quickly left for her car. She did not stay for the manicure that was included in her package, and did not ask for her money back. She went home, to find her daughter waiting
Plaintiffs filed suit against Elizabeth Arden on May 20, 2004. They brought two discrimination claims, one under Title II of the Civil Rights Act of 1964,
II.
Plaintiffs first argue that the district court improperly dismissed their Title II claim. Title II entitles individuals “to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation . . . without discrimination or segregation on the ground of race, color, religion, or national origin.”
Plaintiffs rely on only one subsection of Title II‘s definition provision, contending that the salon is a “place of entertainment” under
We cannot agree with plaintiffs’ argument. The plain text of the statute demonstrates that beauty salons are not covered by Title II. They are not mentioned in any of the numerous definitions of “place of public accommodation.” They also bear little relation to those places of entertainment that are specifically listed, which strongly suggests that a salon would not fall within the catchall language “other place of exhibition or entertainment.”
Our friend in dissent would have us believe that Elizabeth Arden was doing anything other than styling hair and providing other beauty services, but such treatments were of course central to its business. Indeed, the styling of Jean Denny‘s hair is what this entire dispute is all about. This is not enough to transform a beauty salon into a “place of entertainment” remotely akin to the movies, concerts, and sports facilities Congress listed in the statute. Unfortunately, the dissent takes such an expansive view of the term “place of entertainment” that an automobile repair shop is apparently the only thing that does not fit within it. See infra at 17, 19 n.6.
The other subsections setting forth Title II‘s definition of “place of public accommodation” reinforce the ordinary textual reading that “place of entertainment” refers to those establishments designed to entertain. See
The case law delimiting the breadth of
The salon in this case — primarily offering body maintenance services with tangential entertainment value — does not readily compare to the “amusement business” in Paul, whose raison d‘etre was to sell entertainment to its customers. 395 U.S. at 301. Nor are the salon‘s services analogous to the great bulk of establishments that lower courts have held to be places of entertainment: most have had amusement and recreational elements front and center. See, e.g., United States v. Greer, 939 F.2d 1076, 1091 n.15 (5th Cir. 1991) (public parks); United States v. Lansdowne Swim Club, 894 F.2d 83, 87 (3d Cir. 1990) (community
Plaintiffs — and the dissent — have not directed us to even a single case in which a court has found that Title II covered a salon like the instant one. In fact, in the one case presenting facts most similar, the court held that a hair salon was not a “place of entertainment.” See Halton v. Great Clips, Inc., 94 F. Supp. 2d 856, 862 (N.D. Ohio 2000). The Halton court found that such a salon fell outside the ordinary meaning of the phrase. Id. It went on to explain that had Congress wished to include a salon within Title II, it could have easily done so. Id.; see also Pinkney v. Meloy, 241 F. Supp. 943, 947 (N.D. Fla. 1965) (quoting legislative history from Title II indicating that “barber shops, beauty parlors and other establishments are not covered [by the Act] unless they are contained within a hotel“). Congress has, for instance, specifically listed beauty shops as “public accommodations” covered by the Americans with Disabilities Act. See Halton, 94 F. Supp. 2d at 862-63 & n.7 (citing
Plaintiffs primarily rely on Rousseve v. Shape Spa for Health & Beauty, Inc., 516 F.2d 64, 65 (5th Cir. 1975), which held that a health and exercise studio was a place of entertainment. To be sure, the health club in Rousseve, like the salon in this case, offered its clients massages and facials. See id. at 67. But the similarities end there. The health club in Rousseve supplied its customers with recreational areas and facilities, such as gymnasium equipment and swimming pools, that are conspicuously absent in the present case. Id. Indeed, plaintiffs overlook the fact that the Rousseve court explicitly indicated that the health club‘s facilities were akin to those provided by the YMCA, which the Fifth Circuit had already found to be a place of public accommodation. Id. at 68 (citing Smith, 462 F.2d at 648). Simply put, Rousseve cannot provide plaintiffs with the cornerstone necessary to support their atextual construction of Title II.1
As the foregoing discussion of statutory text and case law makes clear, Title II
III.
Plaintiffs next contend that the district court committed error when it dismissed their
Moreover, our dissenting brother travels far afield to obscure the issue in this case. In an attempt to demonstrate that its view of the term “entertainment” is not infinitely elastic, the dissent first offers up, albeit only illustratively, an auto repair shop as something not designed to entertain. Then, it offers, but again only illustratively, visions of “resorts” and of a Belgian town known for the curative properties of its mineral springs. For good measure, we are told about a 7,800 square-foot day spa and clubhouse in Avignon, France, and that Guantanamo is not a spa. See infra at 20-21. Apparently, there are spas and there are spas. All this globetrotting, interesting as it might be, has unfortunately little enough to do with the defendant‘s business or the statutory text or structure with which the dissent has yet to deal.
modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.”
There can be no doubt that plaintiffs have presented not only strong but direct evidence of the salon‘s intent to discriminate.2 See Murrell v. Ocean Mecca Motel, Inc., 262 F.3d 253, 257 (4th Cir. 2001). Indeed, plaintiffs have presented evidence that suggests the salon refused to perform on a contract — either denying plaintiffs a hair styling, hair coloring, or both — for an explicit race-based reason. This is what
There can likewise be no doubt that plaintiffs have demonstrated
a concrete contractual relationship. “[A] plaintiff must establish the loss of an actual, not speculative or prospective, contract interest.” Dillard, 277 F.3d at 751. Seandria Denny bought an expensive gift package that gave her mother the specific contractual right to receive a massage, facial, manicure, lunch, and hair style. She also reached an agreement with the salon‘s receptionist over the phone to add a hair coloring to the package. These transactions plainly satisfy
This case is different therefore from those where a plaintiff‘s failure to advance a pending or current contractual relationship proved fatal to a
We do not suggest, of course, that every person who walks into a commercial establishment and is denied service or is otherwise dissatisfied can maintain a
To begin with, the salon offered insufficient evidence that its employees came close to styling Jean Denny‘s hair. Denny received a shampoo, brush, and blow dry. This combination left her hair looking like “a bush.” The record provides no indication of what Elizabeth Arden considers a “hair style,” and in view of the evidence before us, we cannot conclude summarily that the contract was ever performed. Indeed,
There is also a genuine issue of material fact concerning whether the salon refused to provide a hair coloring on the basis of race. According to Seandria Denny, one of defendant‘s employees agreed over the phone that the salon would color her mother‘s hair. When Seandria Denny arrived at the salon to pay for the coloring, however, the receptionist backpedaled and told her that the salon did not “do black people‘s hair.” While Orth, the salon‘s manager, suggests that the salon did not have time to color Jean Denny‘s hair, Seandria Denny was never so informed. And though the true basis of the decision may be in some dispute, what is not disputed is that Jean Denny never received a hair coloring. Defendant‘s contention that Jean Denny may not actually have wanted her hair colored ignores the fact that this was a third-party beneficiary contract. See, e.g., Levine v. Selective Ins. Co. of Am., 462 S.E.2d 81, 83 (Va. 1995). Seandria Denny, the purchaser, wanted to buy her mother a gift and was refused that opportunity on race-based grounds. If the salon refused to contract with Seandria Denny because of her mother‘s race, that is all that
It is, of course, entirely possible that the trier of fact may ultimately see this matter Elizabeth Arden‘s way. The record before us, however, at least draws into serious question the neutral and non-racial explanations for whatever happened here.
IV.
Plaintiffs lastly argue that the district court erred in dismissing their state claim of intentional infliction of emotional distress. We disagree. This tort is “not favored” under Virginia law, Ruth v. Fletcher, 377 S.E.2d 412, 415 (Va. 1989) (internal quotation marks omitted), and liability only arises if, inter alia, a defendant‘s conduct results in severe emotional distress “that no reasonable person could be expected to endure,” Russo v. White, 400 S.E.2d 160, 163 (Va. 1991).
Plaintiffs have failed to present evidence that they suffered sufficiently severe distress. They have alleged that defendant‘s conduct made them nervous, caused them stress, and resulted in an inability to adequately sleep and eat. It is not to minimize these effects to say that they fall short under Virginia law. Plaintiffs make no claim “that [they] had any objective physical injury caused by the stress, that [they] sought medical attention, that [they were] confined at home or in a hospital, or that [they] lost income.” Russo, 400 S.E.2d at 163 (dismissing claim where plaintiff only alleged nervousness, stress, and inability to sleep or concentrate at work); see also Harris v. Kreutzer, 624 S.E.2d 24, 34 (Va. 2006) (same). If the distress plaintiffs allege was sufficient to be actionable, courts could become arbiters of every human interaction that culminated in embarrassment, disappointment, or hurt feelings. Virginia law has refused to countenance this possibility, and the district court properly dismissed plaintiffs’ state law claim.
While Title II clearly excludes this salon from coverage, section 1981 just as clearly governs racial animus in the making and enforcement of contracts. Our distinguished colleague in dissent simply overlooks the fact that the Reconstruction Congress and the 1964 Congress went about their work in different ways. The Reconstruction Congress wrote broadly, and we have given effect to that breadth as expressed in section 1981. The 1964 Congress also wrote broadly, but made clear through a series of specific references that Title II‘s reach, while ample, was not wholly without limit. Courts can no more place words in Title II than they can ignore the core command of
criminated against them on the basis of race in its performance of contractual obligations, their
For the foregoing reasons, the judgment of the district court is affirmed in part and reversed in part, and the case is remanded for proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
KING, Circuit Judge, dissenting in part:
Although I readily concur in the majority‘s reinstatement of the Dennys’
I would recognize the Red Door Spa for what it is — a place of public accommodation within the meaning of the Public Accommodations Statute. And I would reverse the district court, reinstating the Dennys’ claim that Elizabeth Arden denied them the full and equal enjoyment of the Spa‘s services because they are African-American (the “Public Accommodations Claim“).
I.
In assessing the district court‘s award of summary judgment to Elizabeth Arden, we are obliged to view the facts, and the reasonable inferences to be drawn therefrom, in the light most favorable to the Dennys. See Baqir v. Principi, 434 F.3d 733, 741 (4th Cir. 2006).
Assessed in that light, the record discloses the following: The Red Door Spa, located directly across from the Tyson‘s Corner Shopping Center in Vienna, Virginia, is open to the public, and its operations affect interstate commerce. According to its website, the Spa offers “a complete menu of salon and spa services,” including “signature skincare, massage and body treatments, nail services, hair design, makeup artistry, and much, much more.” J.A. 65 (emphasis added).1 These services include the “elemental balancing massage,” which, the website declares, “has been called an ‘out of body experience’ by many of our guests.” Id. Moreover, one of the Spa‘s
On May 26, 2002, Seandria Denny purchased a gift package from the Red Door Spa for her elderly mother, Jean, who was in her seventies. The gift package, called the “Miracle Morning” by the Spa, sold for the sum of $295 and included a Swedish body massage, a “Red Door Facial,” a “Warm Cream” manicure, hair styling, makeup application, and a “Spa” lunch. J.A. 65. Jean Denny went to the Spa on May 30, 2002, to redeem her Miracle Morning gift package and, while Jean was obtaining her spa services, her daughter Seandria decided to augment the gift by the additional purchase of a hair coloring for her mother. Seandria then telephoned the Spa, arranged to purchase the hair coloring, and drove to the Spa to pay and to check on her mother.
When Seandria arrived at the Red Door Spa and sought to pay for Jean‘s hair coloring, however, she was advised by the Spa‘s receptionist that “we have a problem.” J.A. 73. Seandria inquired promptly about the “problem,” and the receptionist made the racist response that the Spa did not “do black people‘s hair.” Id. When Seandria protested that “[t]here is no such thing as black people‘s hair,” the receptionist reiterated: “I‘m sorry, we just don‘t do it. If you don‘t mind sitting down, I will have my manager come talk to you and explain to you what‘s going on.” Id. Shortly thereafter, the Spa‘s manager
approached Seandria and advised her that “every single one” of the eight or nine hair stylists on duty had “refused” to color Jean‘s hair. Id. at 74. Continuing, the manager explained that “20 years ago they were all required and trained to do black people‘s hair, but in this day and age it is not required.” Id.
II.
A.
The Public Accommodations Statute guarantees that, in this country, “[a]ll persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined [herein],” irrespective of their race or color.
Pursuant to the Public Accommodations Statute, a “place of public accommodation” has three characteristics: (1) it “serves the public“; (2) it “affects interstate commerce“; and (3) it falls within one of four categories enumerated. See
Section 2000a(b) includes, as a place of public accommodation, “any motion picture house, theater, concert hall, sports arena, stadium or
even though “most of the discussion in Congress regarding the coverage of [the Public Accommodations Statute] focused on places of spectator entertainment[,] . . . a natural reading of its language would call for broader coverage.” Daniel, 395 U.S. at 307-08. To illustrate, Justice Brennan quoted from Webster‘s Third New International Dictionary, defining “entertainment” as “the act of diverting, amusing, or causing someone‘s time to pass agreeably.” Id. at 306 n.7. Having so construed the “place of entertainment” provision of the Statute, Justice Brennan had little difficulty concluding for the Court that the recreation area at issue in Daniel constituted a “place of public accommodation” under the Statute. Id. at 308.2
Pursuant to the settled principles of Daniel, the facilities enumerated as “place[s] of exhibition or entertainment” in
entertainment differs from that offered by motion picture houses, theaters, concert halls, or sports arenas.
Business entities that provide their customers with physical and personal care services exist along a spectrum from the purely utilitarian to the entertaining. As a general proposition a traditional barber shop (providing hair cuts only) may not fit into any ordinary definition of a “place of entertainment.” See Halton v. Great Clips, Inc., 94 F. Supp. 2d 856, 862 (N.D. Ohio 2000) (concluding that establishment which provided only “hair services” was not “place of entertainment” under
My good friends in the majority erroneously conclude that the Red Door Spa is not a place of public accommodation, reasoning that “the plain text of the [S]tatute demonstrates that beauty salons are not covered by [it],” because “[t]hey are not mentioned in any of the numerous definitions of ‘place of public accommodation,‘” and “[t]hey also bear little relation to those places of entertainment that are specifically listed.” Ante at 5; see also id. at 6 (stating that “a beauty salon” is not “remotely akin to the movies, concerts, and sports facilities Congress listed in the statute“). The Court in Daniel, however, specifically rejected the ejusdem generis conclusion that places of entertainment
“should be restricted to the primary objects of Congress’ concern” — that is, motion picture houses, theaters, concert halls, sports arenas, and stadiums, as expressly enumerated in
In seeking to distinguish Daniel, the majority, as it must, focuses on the decision‘s result — that the 232-acre amusement area in question was a place of entertainment — and fails to adhere to the Court‘s broad construction of “place of entertainment.” Compare ante at 7, with Daniel, 395 U.S. at 307-08. We are bound, however, by the Court‘s construction of
B.
Viewing the facts in the light most favorable to the Dennys, a specific purpose of the Red Door Spa is to provide entertainment, and it is therefore subject to the Public Accommodations Statute.8 The majority‘s conclusion to the contrary is anchored in its factual misapprehension of the Spa as a “salon” that “primarily offer[s] body maintenance services with tangential entertainment value.” Ante at 7. Although the word “salon” appears in the Spa‘s title, and although the Spa offers hair-styling services to the public, the record fails to support the proposition that the Spa‘s singular purpose is the styling of hair.
The name “Elizabeth Arden Red Door Salon and Spa” implies a place where patrons come to relax and divert from their everyday lives. Through the years, the word “spa” has taken on many meanings, from the name of a Belgian town known for the curative properties of its mineral springs; to health baths containing hot, aerated water; to resorts that offer health and beauty treatments; to the modern “day spas” that provide patrons a temporary escape from daily life through massages, mud baths, steam treatments, and the like. See The New Oxford American Dictionary 1624 (2d ed. 2005); The Oxford English Dictionary Vol. XVI 86-87 (2d ed. 2004); see also, e.g., Gina Damron, Manhood Makeover: More Men Finding Their Way to Spas, Detroit Free Press, June 25, 2006, 2006 WLNR 11008673 (citing editor of Dayspa magazine for proposition that “some of the reasons why men have become more interested in spa treatments . . . include . . . the need for release from daily stresses“); Avignon Village “Ordinary Life into Extraordinary” FAST FACTS, K.C. Star, June 18, 2006, at K1 (describing “7,800-square-foot day spa and clubhouse, designed for convenience and pampering“); Tim Golden, Jihadist or Victim: Ex-Detainee Makes a Case, N.Y. Times, June 15, 2006, at A1 (quot-
ing State Department public diplomacy official: “Guantanamo is not a spa, but nor is it an inhumane torture camp“). It is entirely reasonable to conclude that Elizabeth Arden, in naming the Red Door Spa, used the term “spa” in its normal sense, and that a particular purpose of the Spa is providing services that relax, amuse, and divert its patrons.
More importantly, on this record, the “spa services” provided at the Red Door Spa extend well beyond the mere styling of hair. According to its website, the Spa offers “a complete menu of . . . spa services,” including “massage and body treatments” and “much, much more.” J.A. 65
III.
With all respect for my distinguished colleagues, I dissent from Part II of the majority opinion. I would reverse the district court‘s summary judgment award on the Public Accommodations Claim and remand for further proceedings.