Filed: July 2, 2004
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-1266
(CA-01-53-2-12)
MATTHEW DIXON,
Plaintiff - Appellant,
versus
COBURG DAIRY, INCORPORATED,
Defendant - Appellee.
-------------------------
EQUAL EMPLOYMENT ADVISORY COUNCIL,
Amicus Curiae.
O R D E R
The court amends its opinion on rehearing en banc, filed May
25, 2004, as follows:
On page 14, final line of text -- the word “employees” is
corrected to read “employers.”
On page 15, second paragraph, line 20 -- the cross-reference
“supra note 8” is corrected to read “supra note 2.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
ON REHEARING EN BANC
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MATTHEW DIXON,
Plaintiff-Appellant,
v.
COBURG DAIRY, INCORPORATED,
Defendant-Appellee. No. 02-1266
EQUAL EMPLOYMENT ADVISORY
COUNCIL,
Amicus Curiae.
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
C. Weston Houck, District Judge.
(CA-01-53-2-12)
Argued: December 2, 2003
Decided: May 25, 2004
Before WILKINS, Chief Judge, and WIDENER, WILKINSON,
NIEMEYER, LUTTIG, WILLIAMS, MICHAEL, MOTZ,
TRAXLER, KING, GREGORY, SHEDD, and DUNCAN,
Circuit Judges.
Reversed and remanded with instructions by published opinion. Judge
Williams wrote the opinion, in which Chief Judge Wilkins and Judges
Widener, Wilkinson, Niemeyer, Luttig, Traxler, Shedd, and Duncan
concur. Judge Michael wrote a separate opinion concurring in the
2 DIXON v. COBURG DAIRY, INC.
judgment. Judge Motz concurred in the judgment. Judge King wrote
a separate concurring opinion in which Judge Motz joined. Judge
Gregory wrote a separate opinion concurring in the judgment.
COUNSEL
ARGUED: Samuel Wilson Howell, IV, HOWELL & LINKOUS,
L.L.C., Charleston, South Carolina, for Appellant. J. Thomas Kil-
patrick, ALSTON & BIRD, L.L.P., Atlanta, Georgia, for Appellee.
ON BRIEF: Alan B. Linkous, HOWELL & LINKOUS, L.L.C.,
Charleston, South Carolina; Mikell R. Scarborough, Charleston,
South Carolina, for Appellant. Christopher S. Enloe, ALSTON &
BIRD, L.L.P., Atlanta, Georgia, for Appellee. Ann Elizabeth Rees-
man, Rae T. Vann, MCGUINESS, NORRIS & WILLIAMS, L.L.P.,
Washington, D.C., for Amicus Curiae.
OPINION
WILLIAMS, Circuit Judge:
Matthew Dixon initiated this action in South Carolina state court,
alleging that Coburg Dairy, Inc. unlawfully terminated his employ-
ment in violation of South Carolina law. Coburg removed the case to
the United States District Court for the District of South Carolina,
asserting that the court had subject matter jurisdiction over the case
because it involved a substantial question of federal law. The district
court denied Dixon’s motion to remand the case to state court and
granted summary judgment to Coburg on all of Dixon’s claims. Sit-
ting en banc, we hold that the district court lacked subject matter
jurisdiction to hear this case. Accordingly, we reverse and remand
with instructions that the case be remanded to the South Carolina
Court of Common Pleas.
I.
Dixon began working for Coburg in 1997 as a mechanic. Dixon is
a member of the Sons of Confederate Veterans, a Tennessee non-
DIXON v. COBURG DAIRY, INC. 3
profit corporation, "who[se members] can prove genealogically that
one of their ancestors served honorably in the armed forces of the
Confederate States of America." See Sons of Confederate Veterans,
Inc. v. Comm’n of Va. Dep’t of Motor Vehicles, 288 F.3d 610, 613 n.1
(4th Cir. 2002). Dixon brought with him to work a personal tool box,
to which he had affixed two decals depicting the Confederate battle
flag. The decals offended one of Dixon’s coworkers, who complained
to Coburg management, citing the company’s anti-harassment policy.1
Coburg asked Dixon to remove the decals from his toolbox and, when
he refused, offered to buy him a new, unadorned toolbox. Dixon
declined, explaining that "his heritage was ‘not for sale,’" and assert-
ing that he had a First Amendment right to display the Confederate
battle flag.2 (J.A. at 10-11.) Unable to reach a compromise, Coburg
terminated Dixon on September 5, 2000.
Dixon then filed suit in the South Carolina Court of Common
Pleas. The complaint included nine causes of action. Critical to this
appeal are the first, third and fourth causes of action, which allege that
Dixon was terminated in violation of Section 16-17-560 of the South
Carolina Code and that the discharge was in retaliation for his exer-
cise of constitutional rights.3 Section 16-17-560 makes it "unlawful
(Text continued on page 5)
1
The policy prohibits "any form of . . . harassment because of race,
color, religion, sex, age, disability, national origin, or status as a Vietnam
era or disabled veteran." (J.A. at 42.) It specifies that harassment may
take the form of "visual conduct such as derogatory posters, cartoons,
drawings or gestures." (J.A. at 42.)
2
In early 2000, South Carolinians were involved in a heated debate
about whether to remove the Confederate battle flag from atop their state
capitol building. Dixon points out that this was "a burning issue in the
State of South Carolina," during a "period of intense national scrutiny
and public debate." (Appellant’s Br. at 4.)
3
The relevant portions of the complaint read as follows:
FOR A FIRST CAUSE OF ACTION
(Violation of Constitutional Rights)
All of the pleadings previously alleged are hereby realleged
and repeated and made a part of the pleadings contained herein.
11. SC Code § 16-17-560 states it is unlawful to discharge a
citizen from employment because of the exercise of political
4 DIXON v. COBURG DAIRY, INC.
rights and privileges guaranteed under the Constitution of the
United States and this state. The First Amendment to the U.S.
Constitution and S.C. Constitution Article I, Section 2, provide
for freedom of speech, assembly and the right to redress of griev-
ances.
12. Plaintiff’s termination arose from the exercise of his right
of free speech to display the Confederate flag. Coburg violated
the constitutional rights of its employee by its termination of
Plaintiff.
13. Coburg’s termination of Plaintiff for display of the flag
constitutes a violation of his constitutional rights entitling Plain-
tiff to an award for damages.
...
FOR A THIRD CAUSE OF ACTION
(Violation of Public Policy)
All of the pleadings previously alleged are hereby realleged
and repeated and made a part of the pleadings contained herein.
16. SC Code § 16-17-560 provides for a private civil cause of
action where the wrongful discharge is a "crime against public
policy."
17. The Defendant’s termination of the Plaintiff for display of
the Confederate flag. Defendant’s actions constitute a violation
of South Carolina criminal law and therefore a violation of the
public policy of this State.
18. Coburg’s termination of Plaintiff for display of the flag
constitutes a violation of this statute entitling Plaintiff to an
award for damages.
FOR A FOURTH CAUSE OF ACTION
(Retaliatory Discharge)
All of the pleadings previously alleged are hereby realleged
and repeated and made a part of the pleadings contained herein.
19. Coburg’s actions, through its agents attempts to control the
content of Plaintiff’s right of free speech through constant and
repeated efforts to get him to abandon his constitutionally pro-
DIXON v. COBURG DAIRY, INC. 5
for a person to . . . discharge a citizen from employment or occupation
. . . because of political opinions or the exercise of political rights and
privileges guaranteed . . . by the Constitution and laws of the United
States or by the Constitution and laws of [South Carolina]." S.C.
Code Ann. § 16-17-560.
Coburg then removed the case to federal court, asserting that the
district court had original jurisdiction pursuant to 28 U.S.C.A. § 1331
(West 1993), because the case involved a substantial question of fed-
eral law. Dixon moved for the district court to remand the case to
state court, and the district court denied the motion. The parties then
filed cross-motions for summary judgment, and the district court
granted summary judgment in favor of Coburg on all claims and dis-
missed the case. Dixon appealed, and a divided panel of this court
affirmed the district court’s judgment in part and reversed in part.4
Dixon v. Coburg Dairy, Inc., 330 F.3d 250 (4th Cir.) vacated & reh’g
en banc granted, (4th Cir. Sept. 16, 2003). A majority of full-time,
active circuit judges voted to rehear the case en banc.
tected rights of free speech by demanding that he remove the
flag from his tool box and then, ultimately, terminating him for
exercise of that same right, constitute retaliatory discharge of
Plaintiff.
20. Coburg’s termination of Plaintiff for retaliatory discharge
entitles Plaintiff to an award for actual and punitive damages in
an amount to be determined by the trier of fact.
(J.A. at 12-14.)
4
The panel majority opinion reversed the grant of summary judgment
on the first cause of action under the insubstantiality doctrine, holding
that the district court lacked jurisdiction over the claim. Dixon v. Coburg
Dairy, Inc., 330 F.3d 250, 255 (4th Cir.) (citing Hagans v. Lavine, 415
U.S. 528, 536-37 (1974)), vacated & reh’g en banc granted, (4th Cir.
Sept. 16, 2003). The panel majority affirmed the district court’s grant of
summary judgment on the remaining causes of action. Id.
6 DIXON v. COBURG DAIRY, INC.
II.
We review questions of subject matter jurisdiction de novo, "in-
cluding those relating to the propriety of removal." Mayes v. Rapo-
port, 198 F.3d 457, 460 (4th Cir. 1999). The burden of demonstrating
jurisdiction resides with "the party seeking removal." Mulcahey v.
Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994). We
are obliged to construe removal jurisdiction strictly because of the
"significant federalism concerns" implicated. Id. Therefore, "[i]f fed-
eral jurisdiction is doubtful, a remand [to state court] is necessary."
Id.
III.
Section 1441 of Title 28 provides that "any civil action brought in
a State court of which the district courts of the United States have
original jurisdiction, may be removed by the defendant or the defen-
dants, to the district court of the United States for the district and divi-
sion embracing the place where such action is pending." 28 U.S.C.A.
§ 1441(a) (West 1994). In this case, Coburg alleges that removal was
proper because the district court had original jurisdiction to hear
Dixon’s case under 28 U.S.C.A. § 1331. Section 1331 grants district
courts "original jurisdiction of all civil actions arising under the Con-
stitution, laws, or treaties of the United States." 28 U.S.C.A. § 1331.
Thus, we must decide whether Dixon’s claim "aris[es] under the Con-
stitution, laws, or treaties of the United States." Id.
The vast majority of lawsuits "arise under the law that creates the
cause of action." Am. Well Works Co. v. Layne & Bowler Co., 241
U.S. 257, 260 (1916) (Holmes, J.); Merrell Dow Pharm., Inc. v.
Thompson, 478 U.S. 804, 808 (1986). Thus, we must "first discern
whether federal or state law creates the cause of action. . . . In cases
where federal law creates the cause of action, the courts of the United
States unquestionably have federal subject matter jurisdiction." Mul-
cahey, 29 F.3d at 151. In this case, Dixon’s cause of action was cre-
ated by South Carolina law not federal law, but our inquiry does not
end there. Instead, we must determine whether this case is within the
"small class of cases where, even though the cause of action is not
created by federal law, the case’s resolution depends on resolution of
a federal question sufficiently substantial to arise under federal law
DIXON v. COBURG DAIRY, INC. 7
within the meaning of 28 U.S.C. § 1331." Ormet Corp. v. Ohio Power
Co., 98 F.3d 799, 806 (4th Cir. 1996). Thus, "a case may arise under
federal law ‘where the vindication of a right under state law necessar-
ily turn[s] on some construction of federal law,’" Merrell Dow, 478
U.S. at 808 (quoting Franchise Tax Bd. v. Const. Laborers Vac. Trust,
463 U.S. 1, 9 (1983)), but "only [if] . . . the plaintiff’s right to relief
necessarily depends on a substantial question of federal law," Fran-
chise Tax Bd., 463 U.S. at 28 (emphases added). Thus, in the absence
of another jurisdictional ground, a defendant seeking to remove a case
in which state law creates the plaintiff’s cause of action must establish
two things: (1) that the plaintiff’s right to relief necessarily depends
on a question of federal law, and (2) that the question of federal law
is substantial. If either of these two elements is lacking, removal is
improper and the case should be remanded to state court. As dis-
cussed below, we conclude that Dixon’s complaint satisfies neither of
these requirements.
A.
A plaintiff’s right to relief for a given claim necessarily depends on
a question of federal law only when every legal theory supporting the
claim requires the resolution of a federal issue. Mulcahey, 29 F.3d at
153 ("[I]f a claim is supported not only by a theory establishing fed-
eral subject matter jurisdiction but also by an alternative theory which
would not establish such jurisdiction, then federal subject matter juris-
diction does not exist."); see Christianson v. Colt Indus. Operating
Corp., 486 U.S. 800, 810 (1988)(holding that "a claim supported by
alternative theories in the complaint may not form the basis for
[patent] jurisdiction unless patent law is essential to each of those the-
ories" and noting the similarities between the patent and federal ques-
tion jurisdictional statutes). In other words, if the plaintiff can support
his claim with even one theory that does not call for an interpretation
of federal law, his claim does not "arise under" federal law for pur-
poses of § 1331.
Our opinion in Mulcahey nicely illustrates the foregoing rule. In
Mulcahey, the plaintiffs alleged that the Columbia Organic Chemicals
Company had negligently released hazardous substances into the soil.
Mulcahey, 29 F.3d at 149. The plaintiffs relied on at least the follow-
ing two alternative theories of liability to establish their negligence
8 DIXON v. COBURG DAIRY, INC.
claim: (1) Columbia Organic was negligent per se because it had vio-
lated several federal environmental statutes; and (2) Columbia
Organic was negligent per se because it had violated various state and
local environmental laws. Id. at 153-54. The plaintiffs’ negligence
claim thus relied on multiple theories of liability, only one of which
required the resolution of a federal issue. Id. at 153. In other words,
"[e]ven if Columbia Organic was found not to have violated any fed-
eral statute, the Plaintiffs might still [have] be[en] entitled to recover
under an alternative theory of negligence." Id. We held that in light
of Christianson, "because the Plaintiffs’ alternative theory of negli-
gence per se [under the federal environmental statutes] [was] not
‘essential’ to their negligence [claim], no federal subject matter juris-
diction exist[ed]." Id. at 154.
Coburg asserts that Dixon’s complaint necessarily depends on the
resolution of a question of federal law, because, according to Coburg,
Dixon must prove that Coburg violated his First Amendment rights
to free speech for Coburg to be liable under Section 16-17-560 of the
South Carolina Code. Specifically, Coburg asserts that "Dixon pled
one violation of constitutional rights claim under Section 16-17-560,
with one theory — namely, that Coburg violated his constitutional
rights through his discharge." (Appellee’s Br. at 12-13.) Coburg
points to Paragraph 13 of the complaint’s first cause of action to sup-
port its narrow reading of Dixon’s complaint. Paragraph 13 reads,
"Coburg’s termination of Plaintiff for display of the flag constitutes
a violation of his constitutional rights entitling Plaintiff to an award
for damages."5 (J.A. at 12.) After considering Dixon’s complaint as
a whole, we reject Coburg’s restrictive reading.
5
To the extent that Dixon’s complaint can be interpreted as stating a
cause of action based directly on the First Amendment, such a claim
would be too insubstantial to invoke federal question jurisdiction because
the First Amendment does not apply to private employers. Hagans v.
Lavine, 415 U.S. 528, 536-37 (1974) ("[F]ederal courts are without
power to entertain claims otherwise within their jurisdiction if they are
so attenuated and unsubstantial as to be absolutely devoid of merit,
wholly insubstantial, obviously frivolous, plainly unsubstantial, or no
longer open to discussion.") (internal quotation marks and citations omit-
ted); see also Davis v. Pak, 856 F.2d 648, 651 (4th Cir. 1988)(same).
DIXON v. COBURG DAIRY, INC. 9
Dixon alleges, in his third cause of action, that "Section 16-17-560
provides for a private civil cause of action where the wrongful dis-
charge is a ‘crime against public policy.’" (J.A. at 13.) According to
Dixon, "Coburg’s termination of Plaintiff for display of the flag con-
stitutes a violation of this statute entitling Plaintiff to an award for
damages." (J.A. at 13.) Moreover, Paragraph 11 of the complaint,
which is part of the same cause of action as the passage that Coburg
relies upon for its narrow reading of the complaint, refers specifically
to Article I, Section 2 of the South Carolina Constitution, which pro-
vides that "[t]he General Assembly shall make no law . . . abridging
the freedom of speech." S.C. Const. art. I, § 2 (1977). Similarly, in
alleging that he was terminated for exercising "constitutionally pro-
tected rights of free speech" in his fourth cause of action, Dixon "real-
lege[s] and repeat[s]" the pleadings previously alleged, thus including
the reference in the first cause of action to Article I, Section 2 of the
South Carolina Constitution. (J.A. at 13.)
Therefore, although Dixon’s complaint does reference the First
Amendment, none of its causes of action rely exclusively on a First
Amendment violation to establish Coburg’s liability under
Section 16-17-560. Properly read, Dixon’s complaint alleges a viola-
tion of Section 16-17-560 in its entirety. Accordingly, Dixon’s com-
plaint could support a finding of liability for violating Section 16-17-
560 under any of the following three theories — (1) Dixon was fired
because of his political opinions; (2) Dixon was fired for exercising
political rights guaranteed by the United States Constitution; and (3)
Dixon was fired for exercising political rights guaranteed by the
South Carolina Constitution. See Conley v. Gibson, 355 U.S. 41, 47
(1957) (holding that a complaint is sufficient if it gives "fair notice
of what the plaintiff’s claim is and the grounds upon which it rests").
Of the three alternative theories, only the second even arguably
involves the resolution of a substantial question of federal law.
Because Dixon could prove that Coburg terminated him in violation
of Section 16-17-560 under the first and third theories without prov-
ing the second theory, Dixon’s claim that Coburg violated Section 16-
17-560 does not necessarily depend on a question of federal law. Mul-
10 DIXON v. COBURG DAIRY, INC.
cahey, 29 F.3d at 154. Accordingly, the district court did not have
original jurisdiction to hear this case and removal was improper.6
B.
Even if Dixon’s claim had relied exclusively on the First Amend-
ment to establish a violation of Section 16-17-560 and thus necessar-
ily depended on a question of federal law, the question of federal law
raised by his complaint is not substantial. See Merrell Dow Pharm.,
Inc. v. Thompson, 478 U.S. 804, 814, 817 (1986) (holding that "a
complaint alleging a violation of a federal statute as an element of a
state cause of action, when Congress has determined that there should
be no private, federal cause of action for the violation" does not raise
a substantial question of federal law). In Merrell Dow, the Court rea-
soned that to ignore Congress’ decision not to create a private federal
remedy during the § 1331 jurisdictional inquiry would "flout, or at
least undermine, congressional intent." Id. at 812; see also id. at 811
(noting that congressional silence is an important indication of con-
gressional intent when determining if there is a private federal rem-
edy); Cort v. Ash, 422 U.S. 35, 82-84 (1975). Congress has extended
numerous constitutionally inspired protections to members of the pri-
vate workplace, see, e.g., 42 U.S.C.A. § 2000e-2 (West 2003) (mak-
ing it an illegal employment practice to "discriminate against any
individual . . . because of such individual’s race, color, religion, sex,
or national origin."), but notably has refrained from extending free
speech rights to the private work force. We believe that Congress’
decision not to create a federal remedy for members of the private
workforce whose employers restrict their freedom of speech is "tanta-
mount to a congressional conclusion that the presence of a claimed
6
Coburg also relies on "another underlying federal issue in this case —
the scope and uniformity of Title VII of the Civil Rights Act." (Appel-
lee’s Br. at 17.) In essence, Coburg argues that Title VII, 42 U.S.C.A.
§ 2000e-2(a) (West ), preempts Section 16-17-560, at least as Dixon
interprets it to apply in this case. At most, Coburg has alleged conflict
preemption. Because conflict preemption is a defense to a cause of
action, the well-pleaded complaint rule bars its use as a foundation for
federal question jurisdiction. Sonoco Products Co. v. Physicians Health
Plan, Inc., 338 F.3d 366, 371 (4th Cir. 2003) (citing Metro. Life Ins. Co.
v. Taylor, 481 U.S. 58, 63 (1987)).
DIXON v. COBURG DAIRY, INC. 11
violation of the [First Amendment] as an element of a state cause of
action is insufficiently ‘substantial’ to confer federal-question juris-
diction." Merrell Dow, 478 U.S. at 814.
Moreover, even when Congress does create a private cause of
action for the violation of a federal law, federal question jurisdiction
may be lacking over a state law claim predicated on a violation of that
law. Mulcahey, 29 F.3d at 152-53. If a particular plaintiff is barred
from bringing the private, federal cause of action, either substantively
or procedurally, no federal subject matter jurisdiction exists over that
plaintiff’s state cause of action predicated on a violation of the same
federal law. Mulcahey, 29 F.3d at 152-53. In Mulcahey, we "con-
clude[d] that the Plaintiffs’ inability to proceed under [a federal] stat-
ute[ ] constitute[d] a ‘congressional conclusion that the presence of a
claimed violation of the statute[ ] as an element of a state cause of
action [wa]s insufficiently ‘substantial’ to confer federal question
jurisdiction.’" Id. at 153 (quoting Merrell Dow, 478 U.S. at 814).
Here, Congress has created a private cause of action to remedy vio-
lations of the rights secured by the United States Constitution, see 42
U.S.C.A. § 1983 (West 2003) ("Every person who, under color of any
statute, ordinance, regulation, custom, or usage, of any State . . . sub-
jects . . . any . . . person . . . to the deprivation of any rights, privi-
leges, or immunities secured by the Constitution . . . shall be liable
to the party injured in an action at law. . . ."), but that remedy is
unavailable to Dixon, because Coburg did not terminate Dixon under
color of state law. We believe "that [Dixon’s] inability to proceed
under [§ 1983] constitutes a ‘congressional conclusion that the pres-
ence of a claimed violation of the [First Amendment] as an element
of a state cause of action is insufficiently ‘substantial’ to confer fed-
eral question jurisdiction.’" Mulcahey, 29 F.3d at 153 (quoting Mer-
rell Dow, 478 U.S. at 814).
Accordingly, even if we construed Dixon’s complaint in such a
way that it necessarily depended on federal law, we would conclude
that the question of federal law that it raises is not substantial. Thus,
the district court did not have original jurisdiction to hear this case
and removal was improper.
12 DIXON v. COBURG DAIRY, INC.
IV.
For the foregoing reasons, we reverse the judgment of the district
court and remand with instructions that the case be remanded to the
South Carolina Court of Common Pleas.
REVERSED AND REMANDED WITH INSTRUCTIONS
MICHAEL, Circuit Judge, concurring in the judgment:
Because Matthew Dixon’s complaint asserts only state law claims
against his former employer, Coburg Dairy, Inc., I concur in the judg-
ment to remand his case to South Carolina state court. Although some
of Dixon’s state law claims refer to the First Amendment, these
claims do not "turn[ ] on [a] construction of federal law." Merrell
Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 808 (1986). That is
because the First Amendment, as a matter of federal law, does not
regulate the conduct of a private employer. See, e.g., Yatvin v. Madi-
son Metro. School Dist., 840 F.2d 412, 420 (7th Cir. 1988).
KING, Circuit Judge, concurring:
I concur in the view of my able colleague Judge Williams that the
district court lacked subject matter jurisdiction to address this dispute,
and I agree with her conclusion that its removal to federal court was
improper. I write separately to highlight and adopt the reasoning of
my friend Judge Goodwin of West Virginia, who served our Court on
the panel that initially considered this jurisdictional issue. As he cor-
rectly recognized, the resolution of the Dixon complaint does not
depend on any question of federal law. See Dixon v. Coburg Dairy,
Inc., 330 F.3d 250, 266 (4th Cir. 2003) (Goodwin, District Judge, sit-
ting by designation, concurring in part and dissenting in part) (observ-
ing that question of whether Dixon was "exercising his First
Amendment rights" cannot be answered under federal law), vacated
& reh’g en banc granted, (4th Cir. Sept. 16, 2003). Although Judge
Williams’s analysis adheres to circuit precedent and achieves the
proper result, Dixon’s complaint does not even arguably give rise to
federal jurisdiction. As I see it, section 16-17-560 of the South Caro-
lina Code seeks to create a state law claim implicating the Constitu-
DIXON v. COBURG DAIRY, INC. 13
tion of the United States; South Carolina, however, is powerless to
mandate the application of First Amendment jurisprudence in a fed-
eral proceeding where the alleged constitutional deprivation stems
solely from private action.
A right secured by the First Amendment is never exercised in the
abstract; rather, it may be infringed only when a state actor has sought
or seeks to suppress protected expression. See, e.g., CBS, Inc. v. Dem-
ocratic Nat’l Comm., 412 U.S. 94, 114 (1973) (holding that First
Amendment restrains "government action, not that of private per-
sons"). In this situation, no state actor was involved in Dixon’s dis-
charge, and thus his First Amendment rights could not have been
contravened. Given these circumstances, Dixon’s complaint cannot be
read to establish federal question jurisdiction. And as Judge Goodwin
explained, "one cannot determine whether a specific expressive activ-
ity is an ‘exercise of First Amendment rights’ without reference to a
state actor who is trying to suppress that expressive activity." Dixon,
330 F.3d at 266. This is therefore a state law dispute only, with no
federal jurisprudential counterpart.
Pursuant to the foregoing, I am pleased to concur.
GREGORY, Circuit Judge, concurring in the judgment:
I agree with the majority’s application of Merrell Dow and Chris-
tianson in Part III-A of its opinion, therefore I concur in the judgment.
I write separately, however, to briefly address an important issue
raised by Appellee Coburg Dairy and Amicus Curiae Equal Employ-
ment Advisory Council, namely the potential clash between an
employer’s duties and liabilities under Title VII, 42 U.S.C. § 2000e
et seq., and those which purportedly flow from S.C. Code Ann. § 16-
17-560 if the statute applies in the manner that Mr. Dixon advocates.
I.
A.
Before the district court, see Def.’s Mem. Supp. Mot. Summ. J. at
3-12, and to a lesser extent on appeal, see Br. of Appellee at 17-19,
14 DIXON v. COBURG DAIRY, INC.
Coburg attempted to ground its "arising under" arguments in a federal
interest stemming from Title VII. Title VII of the Civil Rights Act of
1964 prohibits discrimination by an employer against a covered indi-
vidual "with respect to his compensation, terms, conditions, or privi-
leges of employment, because of such individual’s race, color,
religion, sex, or national origin . . . ." 42 U.S.C. § 2000e-2(a)(1). At
the district court, Coburg Dairy presented a lengthy discussion of the
conflict it perceives between its affirmative duties under Title VII to
provide a workplace free of discrimination and the opposite results
that might flow from Mr. Dixon’s favored interpretation1 of the South
Carolina Code. See Def.’s Mem. Supp. Mot. Summ. J. at 6-7 (arguing
Dixon’s "daily display of the flags plainly could have triggered Title
VII liability" thus Coburg had a duty to remedy such potential work-
place harassment, therefore it "end[ed] the alleged harassment" and
took the opportunity "to limit or eliminate any potential liability for
it"); id. at 8 ("Coburg, motivated by its duty under Title VII, opted to
end Plaintiff’s employment."). Moreover, Coburg argued that S.C.
Code Ann. § 16-17-560 is preempted by Title VII. Id. at 8.2 Likewise,
on appeal, Coburg argues that "Dixon’s violation of constitutional
rights claim is preempted by Title VII because it aims to curtail the
protections afforded by that statute and the cases interpreting it. . . .
[P]ermitting his claim to proceed in state court poses a real risk to
uniform enforcement of Title VII." Br. of Appellee at 17. In short,
Coburg argues that S.C. Code Ann. § 16-17-560, which under
Dixon’s interpretation requires employers to carve out a safe space
1
Dixon argues that his display of the flag in the workplace is "pro-
tected symbolic speech that is ‘guaranteed to every citizen by the Consti-
tution and laws of [South Carolina].’" Br. of Appellant at 28 (quoting
S.C. Code Ann. § 16-17-560).
2
Coburg presented these arguments through a federal preemption
defense, however, rather than a declaratory judgment action, and such a
defense is insufficient to obtain federal jurisdiction. See Caterpillar Inc.
v. Williams, 482 U.S. 386, 391-93 (1987) (holding that ordinarily a case
may not be removed on the basis of a federal defense unless the "com-
plete pre-emption doctrine" applies); California Fed. Sav. & Loan Ass’n
v. Guerra, 479 U.S. 272, 282-84 (1987) (holding Title VII only preempts
state law inconsistent with it). On appeal, Coburg admits the "preemption
defense to Dixon’s claim could [not] by itself warrant federal jurisdic-
tion. . . . [But] is further proof of the substantial federal issues at stake
. . . ." Br. of Appellee at 17 n.6 (citations omitted).
DIXON v. COBURG DAIRY, INC. 15
3
for the Confederate battle flag, conflicts with an employer’s affirma-
tive duty to provide a harassment-free workplace under Title VII. See
Faragher v. City of Boca Raton, 524 U.S. 775, 806 (1998) (stating
Title VII’s "‘primary objective’, like that of any statute meant to
influence primary conduct, is not to provide redress but to avoid
harm" (citation omitted)); id. (stating employers have an "affirmative
obligation to prevent violations").
Coburg states that to prevent harassment in the workplace and to
avoid charges of a hostile work environment, it has implemented an
anti-harassment policy through which it investigates and responds to
employee complaints. In this case, one of Dixon’s Black co-workers
was offended by Dixon’s Confederate battle flag stickers and asked
Dixon to remove them. When Dixon refused, the Black co-worker
informed Coburg that he found the Confederate battle flags Dixon
displayed to be racially offensive and in violation of the company’s
anti-harassment policy. As a result, Coburg investigated the complaint
and "t[ook] prompt and adequate action to stop" the offensive conduct
after being placed on notice. Mikela v. City of Durham, 183 F.3d 323,
332 (4th Cir. 1999). Coburg and Amicus Curiae Equal Employment
Advisory Council assert that the South Carolina Code places a bur-
densome competing duty on employers. On the one hand, under Title
VII, an employer must provide a harassment-free workplace. On the
other, if Mr. Dixon’s interpretation of S.C. Code Ann. § 16-17-560
prevails, the employer must allow employees to display symbols, like
the Confederate battle flag, which other employees find offensive,
harassing and emblematic of racial subordination. While, as Coburg
admits, supra note 2, this partial preemption argument does not sup-
port federal jurisdiction, if Mr. Dixon’s interpretation of the South
Carolina statute is correct then the statute surely invites conflict with
federal anti-discrimination law.4
3
Dixon proffers that the Confederate battle flag is an official symbol
of South Carolina. See Br. of Appellant at 27 (citing S.C. Code Ann.
§§ 1-10-10, 16-17-560, 16-17-220, 10-1-160). He argues that any limita-
tion on one’s right to display that symbol constitutes a violation of S.C.
Code Ann. § 16-17-560.
4
At oral argument, Dixon’s counsel acknowledged that the South Car-
olina statute creates "liberties" different than what the federal law allows:
16 DIXON v. COBURG DAIRY, INC.
B.
If indeed South Carolina has carved out this safe haven for the
Confederate flag, such action threatens to undermine the federal pro-
tections that individuals possess to be free of discrimination in the
workplace. See Br. of Appellee at 18 (stating that employers will have
to "pick their poison. They can choose to provide a harassment-free
workplace by barring expressions of allegedly constitutionally pro-
tected but arguably harassing opinions and material . . . and get sued
by that employee for violating Section 16-17-560. Or they can submit
to the logic of Section 16-17-560 . . . and face a lawsuit alleging the
creation of an ethnically and religiously hostile work environment in
violation of Title VII."); Br. of Amicus Curiae Equal Employment
Advisory Council at 21 ("At the core of Title VII compliance is the
concept of proactive prevention."). It is unclear whether a single Con-
federate flag — or a set of decals — displayed in the workplace
would support a Title VII claim. Cf. Burrell v. Crown Cent. Petro-
leum, Inc., 255 F. Supp. 2d 591, 613-614 (E.D. Tex. 2003) (discuss-
ing employee’s hostile work environment claim based on supervisor’s
confederate flag and picture of himself in confederate uniform, but
granting summary judgment for defendant because plaintiff failed to
report the incident to employer); Gonzalez v. Fla. Dep’t of Highway
Safety & Motor Vehicles Div. of Fla. Highway Patrol, 237 F. Supp.
2d 1338, 1354-55 (S.D. Fla. 2002) (granting summary judgment for
defendant on plaintiff’s hostile work environment claim, founded in
part on co-worker’s display of Confederate flag, because Plaintiff was
not "directly exposed" to the symbol). If Mr. Dixon’s interpretation
of South Carolina’s protection of one’s right to display the flag in the
workplace is correct, however, then presumably a situation could
arise where a workplace becomes saturated with such symbols, thus
causing conflict with the federal statute. For example, one may envi-
"South Carolina has been routinely the scapegoat of civil libertarian
groups in the country. Finally, South Carolina is on the cutting edge of
extending civil liberties and rights beyond the governmental workplace,
but to the private workplace. Well beyond what the federal government
has done, well beyond what other states have done by extending some
civil liberties in the private workplace." (Recording of Oral Argument,
December 2, 2003, Appellant’s Rebuttal Argument.)
DIXON v. COBURG DAIRY, INC. 17
sion a situation whereby a South Carolina shop employs a single
Black laborer in a workforce of twenty. If every one of the nineteen
white workers displays the flag, invoking the protections of the South
Carolina statute in the manner that Mr. Dixon advocates, and the sin-
gle Black worker filed a Title VII claim alleging a hostile work envi-
ronment, I do not believe the claim would be considered frivolous. Cf.
Augustus v. Sch. Bd. of Escambia County, 361 F. Supp. 383, 389
(N.D. Fla. 1973) (finding the use of the Confederate battle flag by
white students comparable to fighting words, as it became a source
of violence and disruption, and the flag was "specially dangerous in
light of the numerical strength of the white students"), modified by
507 F.2d 152 (5th Cir. 1975).
To understand why such an environment, or even a workplace with
a less prevalence of the symbol, might be offensive or even hostile to
some, I believe it is necessary to revisit the nature of the symbol. We
have previously recognized the representations inherent in displaying
the Confederate flag, stating:
It is the sincerely held view of many Americans, of all races,
that the confederate flag is a symbol of racial separation and
oppression. And, unfortunately, as uncomfortable as it is to
admit, there are still those today who affirm allegiance to
the confederate flag precisely because, for them, that flag is
identified with racial separation. Because there are citizens
who not only continue to hold separatist views, but who
revere the confederate flag precisely for its symbolism of
those views, it is not an irrational inference that one who
displays the confederate flag may harbor racial bias against
African-Americans.
United States v. Blanding, 250 F.3d 858, 861 (4th Cir. 2001); see also
Sons of Confederate Veterans, Inc. v. Comm’r of Va. Dep’t of Motor
Vehicles, 305 F.3d 241, 242 (4th Cir. 2002) (Wilkinson, C.J.) (con-
curring in the denial of rehearing en banc) ("The vast majority of Vir-
ginians understand that one[’s] proclamation of heritage is another’s
reminder of the unspeakable cruelties of human bondage. The vast
majority of Virginians recognize the sad paradox of Confederate his-
tory—namely that individual southerners, so many good and decent
in themselves, swore allegiance to a cause that thankfully was lost,
18 DIXON v. COBURG DAIRY, INC.
and to practices that no society should have sought to defend.") (here-
inafter SCV). While those comments are eloquent and directly on
point, I find the Confederate battle flag needs further contextualiza-
tion within the greater narrative of the Civil War, the Confederacy
and the flag’s revival as a symbol of racial polarization during the
middle of the last century to illustrate why many viewers find it offen-
sive.
During the Civil War, those fighting under the flag of the United
States — the same flag our men and women have fought under since
the Continental Congress adopted it on June 14, 1777 — suffered
nearly 650,000 casualties while combating Southern forces fighting
under the Confederate battle flag. See United States Department of
Defense, Principal Wars in which the United States Participated:
U.S. Military Personnel Serving and Casualties, available at
http://web1.whs.osd.mil/mmid/casualty/WCPRINCIPAL.pdf. Since
the war, many people, likewise good and decent themselves, have
proclaimed the Confederate flags as symbols of pride, of heritage not
hate. Mr. Dixon states: "He has a keen interest in his family’s
geneology [sic] . . . . His ancestors fought and died under the Confed-
erate battle flag for a cause in which they believed." Compl. ¶ 4
(emphasis added). However, we cannot wholly divorce the flying of
the flag from the system of beliefs and those practices — which as
Judge Wilkinson stated "no society should have sought to defend,"
SCV, supra — that undergirded the Confederacy, including racial
subordination and slavery. While many Southerners unquestionably
embrace the flag, not out of malice or continued belief in racial subor-
dination, but out of genuine respect for their ancestors, we must also
acknowledge that some minorities and other individuals feel
offended, threatened or harassed by the symbol. Unfortunately, to its
supporters at the time of its creation as well as some proponents
today, see Blanding, supra, the Confederate flag undeniably repre-
sented, and represents, support for slavery, belief in Blacks as an infe-
rior class, and opposition to the Republic.5 Over the years since the
5
On March 21, 1861, newly elected Vice-President of the Confederacy
Alexander H. Stephens gave a speech in Savannah, Georgia in which he
stated:
[T]he new [Confederate] Constitution has put at rest forever all
the agitating questions relating to our peculiar institutions-
DIXON v. COBURG DAIRY, INC. 19
war, some have attempted to divorce the Confederate flags from their
intimate connections to these principles of subordination, but for
many viewers of the symbol such a disconnect is impossible because
of the historical facts and the overwhelming negative connotations
which continue to flow therefrom.
Some attempts to disgorge the Confederate flag of its negative con-
tent associated with the bleak realities of the Civil War and Jim Crow
can be explained by the romanticism of what has been termed "Lost
Cause" ideology.6 Since the war’s end, Lost Cause proponents have
African slavery as it exists among us — the proper status of the
negro in our form of civilization. This was the immediate cause
of the late rupture and present revolution. . . . . Those ideas [of
the United States Constitution], however, were fundamentally
wrong. They rested upon the assumption of the equality of races.
This was an error. It was a sandy foundation, and the idea of a
Government built upon it — when the "storm came and the wind
blew, it fell."
Our new Government is founded upon exactly the opposite
ideas; its foundations are laid, its cornerstone rests, upon the
great truth that the negro is not equal to the white man; that
slavery, subordination to the superior race, is his natural and
moral condition. [Applause.] This, our new Government, is the
first, in the history of the world, based upon this great physical,
philosophical, and moral truth.
Alexander H. Stephens, Cornerstone Address, March 21, 1861, in 1 The
Rebellion Record: A Diary of American Events with Documents Narra-
tives, Illustrative Incidents, Poetry, etc. 44-46 (Frank Moore ed., 1862),
reprinted in Paul Halsall, Internet Modern History Sourcebook, available
at http://www.fordham.edu/halsall/mod/1861stephens.html. While in
provisions such as the three-fifths clause the United States Constitution
is undeniably problematic in its inability to confront the problems of
race, the Confederate Constitution was overtly racist. For example, it
prohibited the enactment of any law "denying or impairing the right of
property in Negro slaves," Confederate Const. art. I, § 9, cl. 4, and
required that escaped slaves be surrendered to their owners upon request,
id. art. IV, § 2, cl. 3. See generally Paul Finkelman, Affirmative Action
for the Master Class: The Creation of the Proslavery Constitution, 32
Akron L. Rev. 423 (1999).
6
Alan T. Nolan summarizes Lost Cause ideology as follows: "[T]he
Lost Cause was expressly a rationalization . . . . One reason for this was
20 DIXON v. COBURG DAIRY, INC.
cast the Civil War as a continuation of the revolution of 1776 — a
noble revolution against a despotic Northern regime, a battle for sov-
ereignty in tune with America’s core constitutional principles, clothed
in the language of states’ rights and Jefferson Davis’s pleas for
"Southern honor." See generally Jefferson Davis, The Rise and Fall
of the Confederate Government (1881); Edward A. Pollard, The Lost
Cause (1866); Douglas Southall Freeman, The South to Posterity: An
Introduction to the Writing of Confederal History (1939); Gaines M.
Foster, Ghosts of the Confederacy: Defeat, the Lost Cause, and the
Emergence of the New South, 1865 to 1913 (1987). Yet no matter
how noble these proponents of the ideology attempted to make the
Lost Cause seem, they have had difficulty divorcing it from slavery,
white supremacy and the beginnings of Jim Crow and American
Apartheid. As Pollard wrote in 1868’s The Lost Cause Regained, in
which he urged reconciliation with conservative Northerners, "[t]o the
extent of securing the supremacy of the white man . . . and the tradi-
tional liberties of the country . . . She [the South] really triumphs in
the true cause of the war." Quoted in David W. Blight, Race and
Reunion: The Civil War in American Memory 260 (2001) (internal
quotation marks omitted).
Indeed, many offended by the Confederate flag find more current
connections to oppression as the flag became an unfortunate symbol
of the South’s resistance to integration and equality from the late
‘the need to justify the existence of slavery . . . even before the abolition-
ist attack from the North, Southerners began the defense of slavery as a
social system that provided unique benefits, both for the slaves whom it
placed under the fatherly care of a superior race and for the master who
was given the freedom from toil necessary to the creation of a superior
culture.’" Alan T. Nolan The Anatomy of the Myth, in The Myth of the
Lost Cause and Civil War History 11, 14 (Gary W. Gallagher & Alan T.
Nolan eds., 2000); see also Brown v. Bd. of Sch. Comm’rs of Mobile
County, 542 F. Supp. 1078, 1094 n.14 (S.D. Ala. 1982) ("The South,
having given all it had in the destructive Civil War, had little to show for
it but ‘The Lost Cause’. In the course of the next two decades, the ‘lost
cause’ would be elevated to one of the most enduring myths of history,
one that enabled the South to keep the blacks in their place, out of public
office and out of the voting booth . . . ."), aff’d, 706 F.2d 1103 (11th Cir.
1983).
DIXON v. COBURG DAIRY, INC. 21
1940s through the 1960s. For example, Georgia incorporated the Con-
federate battle flag into its state flag in 1956 "during a regrettable
period in Georgia’s history when its public leaders were implement-
ing a campaign of massive resistance to the Supreme Court’s school
desegregation rulings." Coleman v. Miller, 117 F.3d 527, 528 (11th
Cir. 1997) (per curiam) (discussing the history of the Georgia flag and
stating the Georgia legislature "chose as an official state symbol an
emblem that historically had been associated with white supremacy
and resistance to federal authority" (emphasis added)). South Caro-
lina began flying the Confederate flag above the State Capitol in
1962. See Sue Anne Pressley, Flag War Isn’t Over at Carolina State-
house, Wash. Post, Jan. 16, 2001, at A3 ("When the flag went up,
supporters said its purpose was to celebrate the Civil War centennial,
but critics said its presence had more to do with opposition to the inte-
gration of schools then underway throughout the South."). Further-
more, much more recently the flag has continued to be associated
with racial intolerance.7
Against this historical backdrop, it becomes more apparent why co-
workers might feel offended, harassed and even threatened by the
Confederate battle flag in the workplace, even if those who display
the flag do so with no ill will. Thus, if Mr. Dixon’s reading of the pro-
tections afforded by § 16-17-560 has merit, the Title VII concerns
raised by Coburg Dairy and the employers comprising the Equal
Employment Advisory Council seem particularly significant.
7
See, e.g., Christopher Schwarzen, 2 Teens Charged in Cross Burning:
Youths Reportedly Had Targeted Black Pastor’s Son, Seattle Times, Apr.
1, 2004, at B3 (noting detectives investigating cross burning viewed pic-
tures drawn by the accused teens including depictions of "Confederate
flags with captions reading ‘White Pride’ and lynching victims dangling
from trees").