Curtis Blaine Storey v. Burns International Security Services

SCIRICA, Chief Judge,

Concurring.

I agree with much of the Court’s opinion and join in affirming the dismissal of Sto-rey’s complaint, but I believe Storey’s discharge constituted an “adverse employ*766ment action.” An “adverse employment action” is one that is “ ‘serious and tangible enough to alter an employee’s compensation, terms, conditions, or privileges of employment.’ ” Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir.2001) (quoting Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir.1997)). Termination of employment constitutes an “adverse employment action” for purposes of Title VII. Abramson v. William Paterson College of N.J., 260 F.3d 265, 288 (3d Cir.2001).

In his complaint, Storey claimed that Burns discharged him because of his national origin and religion in violation of 42 U.S.C. § 2000e-2(a)(l). In seeking damages for lost wages, Storey stated that he “has been fired from his job” as a result of “Defendant’s discriminatory actions.” On a motion to dismiss, we accept all factual allegations as true and draw all reasonable inferences in favor of the plaintiff. Nami v. Fauver, 82 F.3d 63, 65 (3d Cir.1996). Based on this standard, Storey’s allegation that he was discharged because of his national origin and religion sets forth an adverse employment action required to state a Title VII claim.

Even so, Storey has failed to state a prima facie case for national origin discrimination under Title VII. To do so, Sto-rey must establish that: (1) “Confederate Southern-Ameriean” is a protected national origin classification; (2) he was qualified to perform his job; and (3) he was fired under circumstances that give rise to an inference of unlawful discrimination. See Waldron v. SL Industries, Inc., 56 F.3d 491, 494 (3d Cir.1995) (citing Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). I agree with the District Court that Storey failed to satisfy the first prong because “Confederate Southern-Ameriean” is not a legitimate national origin classification for Title VII purposes.

“National origin” refers to the “country where a person was born, or, more broadly, the country from which his or her ancestors came.” Espinoza v. Farah Mfg. Co., Inc., 414 U.S. 86, 88, 94 S.Ct. 334, 38 L.Ed.2d 287 (1973). Following Espinoza, the few courts that have considered the issue directly have rejected “national origin” claims based on Confederate or Southern American heritage. See, e.g., Chaplin v. Du Pont Advance Fiber Sys., 293 F.Supp.2d 622, 628 (E.D.Va.2003) (finding “Confederate-American” not a protected class under Title VII); Williams v. Frank, 757 F.Supp. 112 (D.Mass.1991) (“Southernness is not a protected trait”). While Storey is correct that neither United States birth nor citizenship necessarily precludes a national origin discrimination claim, it does not follow that “Confederate Southern-Ameriean” is a valid national origin class 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.16

For the reasons stated by the Court, Storey also has failed to state a religious *767discrimination claim under Title VII.17 As the Court notes, Storey failed to state a prima facie case because he failed to inform his employer that he held a religious belief that conflicted with an employment requirement. Specifically, he did not inform his employer that displaying the Confederate flag had any relation to his religious beliefs or observances.18

Therefore, I concur in the result.

. Storey contends the Confederate States were “separate, distinct and identifiable in the same way that France or Japan is separate and identifiable for a period of years,” and therefore Confederate Southern-American constitutes a "national origin.” The Supreme Court has stated the Civil War was "not between independent nations, but between different portions of the same nation.” Dow v. Johnson, 100 U.S. 158, 164, 25 L.Ed. 632 (1879). See also, Black’s Law Dictionary 1614 (8th ed.2004) (defining "civil war” as "an internal armed conflict between people of the same nation," including "the war from 1861 to 1865”) (emphasis added). For an individual whose ancestors' nation of origin existed in North America before the United States, however, a proper national origin classification may be possible. See, e.g., Dawav-endewa v. Salt River Project Agric. Improve*767ment & Power Dist., 154 F.3d 1117, 1120 (9th Cir.1998) ("Because the different Indian tribes were at one time considered nations, and indeed still are to a certain extent, discrimination on the basis of tribal affiliation can give rise to a 'national origin’ claim[.]”).

. To state a prima facie case for religious discrimination under Title VII, Storey must establish the following: he held a bona fide religious belief that conflicted with an employment requirement; he informed the employer of this belief; and he was disciplined for failing to comply with the conflicting employment requirement. Shelton v. Univ. of Med. & Dentistry of N.J., 223 F.3d 220, 224 (3d Cir.2000). Once an employee establishes a prima facie case, an employer may defend by demonstrating that it has offered the employee "reasonable accommodation” or that the accommodation sought cannot be accomplished without undue hardship. United States v. Bd. of Ed. For Sch. Dist. of Phila., 911 F.2d 882, 886-87 (3d Cir.1990).

. As the District Court correctly noted, Sto-rey's complaint did not contend that he displayed the stickers for religious reasons, but "because he is proud of being a Confederate Southern-American. He comes from a Southern family, and is interested in sharing his passion for his heritage with others.” [JA 3-4]