Brown v. D. C. Transit System, Inc.

¶6DANAHER, Senior Circuit Judge:

¶7The above-named appellees (hereinafter, “Plaintiffs”) were bus drivers in the employ of D. C. Transit System, Inc. (hereinafter, “Transit”) whose services were terminated, as the district judge found, “because of failure to conform 1 their facial hair to the styling required by D. C. Transit Regulation # 70-67.”2 He concluded after consid*726eration of cross-motions for summary judgment that Transit’s Regulation and the discharge of the Plaintiffs were in violation of their Fifth Amendment rights. In response to a motion of D. C. Transit, the district judge issued an order which found that the court’s Fifth Amendment ruling “involves a controlling question of law as to which there is substantial ground for difference of opinion,” and that an appeal from it may materially advance termination of the litigation, see 28 U.S.C. § 1292(b). The corporate defendants3 have brought this appeal from the partial summary judgment granted Plaintiffs. We have accepted jurisdiction over this interlocutory appeal. The respective parties on brief agree that the Fifth Amendment determination presents the sole issue before us. We reverse and remand with directions that judgment be entered in favor of the appellants and that Plaintiffs’ complaint be dismissed.

¶8I

¶9The district judge concluded that Plaintiffs’ claim based on statutory grounds had failed. Specifically he ruled that “Regulation # 70-67 does not discriminate against persons because of their race or sex and provides no basis for a claim cognizable under 42 U.S.C. § 1981 or § 2000e-2.” Moreover, since the District of Columbia is not a “State or Territory” within the meaning of 42 U.S.C. § 1983, the Plaintiffs “are entitled to no relief under that statute,” citing District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973).4 Succinctly the district judge thus ruled before turning to the Plaintiffs’ claim of denial of substantive due process under the Fifth Amendment.

¶10Plaintiffs had claimed that Regulation No. 70-67 would have forced them to modify their facial hair style, and so was an “extreme and gross suppression of them as black men and [was] a badge of slavery” depriving them “of their racial identity and virility.” But there were 1800 employees, 1100 of whom were black, all others were white, indeed there were three women bus drivers. At the time the Plaintiffs were terminated, the regulation had been invoked against certain white drivers as well,'at least one of whom had thereupon brought his facial hair style into conformity. The district judge specifically had found that there was no discrimination “against persons because of their race or sex,” text supra.

¶11Even so, as the judge initiated his inquiry, his opinion epitomized his premise thus:

The right of an adult to wear his hair in the fashion of his own choosing . has been identified as an aspect of liberty which is protected from unwarranted government interference.

II

¶12It is clear enough that the district judge perceived Transit as “operating under an exclusive franchise” which “could have no concern” as to how its bus drivers might wear their hair “as an *727aspect of liberty which is protected from unwarranted government interference.” The judge saw Transit’s grooming regulation as an “interference” with Plaintiffs’ rights. In that context, the trier viewed his problem, apparently, as one of balancing the respective interests of the Plaintiffs in contrast to the position of Transit.

¶13In the first place, that Transit was operating under an “exclusive franchise” surely lacks controlling significance. It was a private corporation, privately funded, and so had no different status as such an entity than is possessed by any corporation organized under the laws of the District of Columbia or one created pursuant to a special act of Congress. Transit’s status as a legal entity was no different from that of the National Cash Register Company or that of Giant Food, Incorporated, or Safeway Stores, Incorporated, all heretofore involved in varying respects.5 True it is that Transit was subject to regulation by the Public Utilities Commission, but that fact, again, is immaterial here. For one thing, the Commission had exercised no jurisdiction over this subject matter. Moreover, there had not even been an application for relief presented to the Commission so that it might consider whether it could or should exercise jurisdiction.

¶14We have given consideration to Public Utilities Comm’n v. Pollak, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068 (1952), reversing this court’s position as announced in 89 U.S.App.D.C. 94, 191 F.2d 450 (1951). Capital Transit, the utility there involved, had a charter for the operation of a public transportation system on the streets of Washington, to be sure. In addition, however, the Commission had ordered an investigation of, and after hearings, had rejected Poliak’s complaint against the exposure of the captive audience, the riding public, to the utility’s broadcasting. The Court pointed out that the First and Fifth Amendments were applicable to and restrictive only of “the Federal Government6 and not private persons,” id.343 U.S. 461, 72 S.Ct. 821.

¶15Those Amendments nevertheless were considered because the Court saw “a sufficiently close relation between the Federal Government and the radio service,” id.,343 U.S. at 462, 72 S.Ct. at 820, as to require scrutiny. It was noted that the Public Utilities Commission, pursuant to protests against the utility’s radio program, had “ordered an investigation of it and, after formal public hearings, ordered its investigation dismissed on the ground that the public safety, comfort and convenience were not impaired thereby.” Id., 343 U.S. at 462, 72 S.Ct. *728at 820. In short, under the circumstances developed in Poliak, the Court concluded that the Commission’s action had been consistent with its discretion to act in the overall public interest.

¶16The Court re-examined Pollak, supra, in Jackson v. Metropolitan Edison Company, 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). Rejecting the claim that Jackson presented an instance of “state action”, the Court recognized that there often is a close question as to whether particular action is “private” or “state action.” Noting that the company was a privately owned public utility, the fact that it was operating under a certificate of public convenience and necessity issued by the Pennsylvania Public Utilities Commission,7 was not controlling. That a business is subject even to extensive state regulation does not by itself convert its action, vis-a-vis its customers, into that of the State.

¶17Here Transit at the time of the discharge of these Plaintiffs was in precisely the same situation as the utility named in Jackson. Although it was heavily regulated, its actions were not, ipso facto, “state action.” The Federal Government had not claimed control over the management decision in the adoption of the challenged regulation. The unreported opinion of the district judge noted that Regulation # 70-67 had been “adopted in the interest of morale of employees [and] so as to be properly presentable to the public and in the interest of safety . . . He* then reasoned that Transit’s “legitimate interest” in requiring its employees to be “properly presentable to the public” was limited to situations which would “affect the conduct of its business.” He thus would superimpose the decision of a federal court upon a prerogative of Transit’s management. In short, the district judge simply would have denied the employer’s right to prescribe reasonable grooming regulations for its employees in their constant contact with the public.

¶18Of course individual citizens have a constitutional right to wear beards, sideburns and mustaches in any form and to any length they may choose. But that is not a right protected by the Federal Government, by statute or otherwise, in a situation where a private employer has prescribed regulations governing the grooming of its employees while in that employer’s service. The wearing of a uniform, the type of uniform, the requirement of hirsute conformity applicable to whites and blacks alike, are simply non-discriminatory conditions of employment falling within the ambit of managerial decision to promote the best interests of its business.

¶19Heretofore we have summed up the problem in terms of private employment thus:

But equally it seems obvious to us, that one seeking an employment opportunity as in our situation where hair length readily can be changed, may be required to conform to reasonable grooming standards designed to further the employing company’s interest by which that very opportunity is provided. There is no suggestion that the company regulation is pretextual or that it has been derived other*729wise than in complete good faith.8 (Emphasis in original)

¶20We are aware that Transit may be distinguishable from a private employer who has extensive private competition and adopts grooming standards in the interest of keeping up with or gaming ground on that competition.9 But even a public utility with monopoly or quasi-monopoly status has an interest in consumer acceptance of its services. A utility’s grooming regulation governing its employees does not have the nexus with the state necessary for its classification as “state action” subject to due process restraints where, as here, there has been no involvement whatever of an agency of government, federal or “state.” We find here no order, no investigation and hearing, not even an application to the agency to determine whether it could or should consider the possibility that some element of the public interest was adversely affected by the company’s regulation.

¶21We are satisfied that the district judge correctly concluded that Plaintiffs were entitled to no relief under 42 U.S.C. §§ 1981, 1983 or 2000e-2.10 We are equally confident that there has been no “state action,” such as is essential to establish a claim of denial of due process under the Fifth Amendment. Accordingly, on this aspect of the case, we will reverse and remand with directions that judgment be entered in favor of the appellants and that Plaintiffs’ complaint be dismissed.

¶22Reversed and remanded.