‘Confederate Southern-American’ fails to revive Title VII suit
Shannon P. Duffy
The Legal Intelligencer

A man who was fired for refusing to stop displaying Confederate flags in his workplace has lost his bid to revive an employment discrimination suit that said he was discriminated against on the basis of his religion and his national origin as a "Confederate Southern-American."

Curtis Blaine Storey’s Title VII lawsuit was brought by the Southern Legal Resource Center, a North Carolina group that, according to its Internet Web site, was founded in 1995 "for the specific purpose of aiding persons whose constitutional and civil rights have been violated in connection with their Southern heritage."

In the lower court, U.S. District Judge David S. Cercone of the Western District of Pennsylvania dismissed the suit, finding that "Confederate Southern-American" did not qualify as a national origin under Title VII, and that Storey had not established that his display of a Confederate flag was essential to maintaining a sincerely held religious belief.

Now the 3rd U.S. Circuit Court of Appeals has upheld that ruling, but the three-judge panel was split on its reasoning.

Writing for the majority in Storey v. Burns International Security Services, 3rd Circuit Judge Theodore A. McKee found that the case was fatally flawed because Storey cannot show that he suffered any "adverse employment action."

McKee, who was joined by 3rd Circuit Judge Jane R. Roth, found that Storey "concedes that he was fired because he refused to cover or remove his Confederate flag symbols when his employer told him to."

If Storey had simply complied with the order to remove his Confederate flags, he could have kept his job, McKee found.

"Although Storey attempts to alchemistically spin the discharge into illegal employment discrimination under Title VII, it is clear that he is not alleging that he was discharged because of his claimed national origin or his religion," McKee wrote.

But Chief 3rd Circuit Judge Anthony J. Scirica, in a concurring opinion, said he believed Storey had properly alleged an "adverse employment action," and that the appellate court was therefore forced to address whether he was a member of a protected class.

On that point, Scirica found that the lower court was correct to dismiss the suit "because ‘Confederate Southern-American’ is not a legitimate national origin classification" under Title VII.

"Where one cannot trace ancestry to a nation outside of the United States, a former regional or political group within the United States, such as the Confederacy, does not constitute a basis for a valid national origin classification," Scirica wrote.

According to court papers, Storey worked for 10 years as a security guard at the Sony plant in Newton Station.

In August 1998, Storey placed a Confederate flag sticker on his lunch box and put two Confederate flag bumper stickers on his pickup truck. One bumper sticker included the slogan, "The South Was Right," and the other proclaimed, "Heritage not Hate."

In 2001, supervisors at Burns told Storey that the company was about to implement a "diversified hiring program," and that Storey would have to remove his Confederate flag stickers. When Storey refused, they explained that Sony and Burns had a "zero tolerance" policy with respect to the display of Confederate symbols, according to court papers.

Top managers tried to persuade Storey to remove or cover his stickers because other employees might be offended by them, but Storey refused, saying that, as a Christian, he was offended by things that occurred at work — such as the use of profanity — but that he accepted it as something he had to deal with, according to court papers.

The next day, Storey was told that the company had concluded that he had voluntarily resigned. When Storey attempted to report for work, a captain of the security guards told him that he had been terminated because of the Confederate stickers.

In his federal suit, Storey claimed that "Confederate Southern-Americans bear the scars of a people victimized and nearly destroyed by total war, loss of civil rights, living in ‘conquered provinces’ under reconstruction and a persecution that continues to the present day."

His lawyer, Kirk D. Lyons of the Southern Legal Resources Center’s headquarters in Black Mountain, N.C., argued that Confederate Southern-Americans "endured a persecution similar to that suffered by the Highland Scots under English rule after the Jacobite uprising of 1745, or the Acadians of Canada."

Lyons argued that "Confederate Southern-American" is a valid national origin under Title VII because members of the group share a common culture and history of persecution dating back to the Civil War era.

The suit also alleged that the Confederate flag is a religious symbol because it incorporates the cross of Saint Andrew and that displaying it is similar to displaying a traditional cross or the Star of David.

But the majority on the 3rd Circuit found it was unnecessary to decide any issues relating to Storey’s national origin and religious discrimination claims.

"For the sake of argument, we will assume that ‘Confederate Southern-American’ is a valid national origin, and that the Confederate flag has some religious significance for members of this group," McKee wrote.

"We need not address the delicate intricacies of the merits of either claim because we conclude that Storey does not claim to have suffered an ‘adverse employment action’ within the meaning of Title VII," McKee wrote.

In a footnote, McKee said that while Storey describes himself as a Confederate Southern-American, it would be "more realistic and accurate to view his claim as that of a ‘Confederate White-American.’ Viewing his claim in that manner does not alter our analysis, but it does allow a more accurate context both for his claim, and for the employer’s concerns."

McKee found that Storey’s claim failed because even his own allegations showed that the firing was not connected to his claimed national origin or religion.

"Nothing in Storey’s complaint suggests that Burns’ requirement

[that he remove the Confederate flag stickers] conflicted with a sincerely held belief that was endemic to his professed national origin or religion claims," McKee wrote.

"By his own account, Storey only ‘displayed these stickers because he is proud of being a Confederate Southern-American’ and ‘is interested in sharing his passion for his heritage with others.’ He does not claim that anything fundamental to his national origin or religion requires display of Confederate symbols," McKee wrote.

McKee found that such a "personal need" to share one’s heritage "cannot be equated with something endemic to national origin or a religiously mandated observance." Burns was represented in the appeal by attorneys Fred G. Pressley Jr. and John M. Stephen of Porter Wright Morris & Arthur in Columbus, Ohio.

Copyright 2004 ALM Properties, Inc

On The Web: http://www.law.com/jsp/article.jsp?id=1102944928367