Friday, December 13, 2013

The Gift that Keeps on Giving: Vazquez v. Caesar’s Paradise Stream Resort

Vazquez v. Caesar’s Paradise Stream Resort, 524 Fed. Appx. 831 (3d Cir. 2013), on remand, No. 09-cv-0625, 2013 U.S. Dist. LEXIS 170178 (M.D. Pa. Dec. 3, 2013), is a virtual plaintiffs’ Christmas tree with many a bright bauble for 2014 and beyond. The case is not only a victory for the plaintiff, but contains several important elements of which plaintiff’s attorneys should take note.


Ms. Carmelita Vazquez, a woman of African-American and Hispanic descent, worked for seven years as a housekeeper at the Caesar’s Paradise Stream Resort in Mount Pocono, Pennsylvania. On May 28, 2007, Ms. Vazquez arrived at work with her hair styled in cornrows. Her manager told her to remove the cornrows, and when she refused, Ms. Vasquez was fired. Attorneys for Starwood Resorts, Caesar’s parent company, later asserted that the facility terminated Ms. Vasquez because her hairstyle in cornrows was not “conservative in style” as required by the personal appearance policy (though no specific hairstyles are listed as acceptable or prohibited). As supervisors had interpreted this policy, employees were permitted to wear braids as long as the braids did not make the employee’s scalp visible.

Following her termination, Ms. Vazquez filed a complaint with the EEOC alleging race and national origin discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq. (2011). She stated that she suffered disparate treatment, as she was fired for her braided hairstyle while white employees wearing their hair in braids, and showing scalp, did not suffer adverse actions. On December 23, 2008, the EEOC issued and mailed Ms. Vazquez a right to sue notice, which required that she file a lawsuit within 90 days of receipt.

“Minimal” Showing Needed to Rebut the 3-Day Mailing Rule

Ms. Vazquez filed her lawsuit pro se on April 6, 2009, 104 days after the date of the notice. In the subsequent court proceedings before the U.S. District Court for the Middle District of Pennsylvania, timely filing became an issue. Starwood argued that courts generally apply a rebuttable presumption in EEOC cases that a notice was mailed on the day it was issued, and that the recipient received the notice within 3 days of mailing. See Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 239 (3d Cir. 1999) (“In the absence of other evidence, courts will presume that a plaintiff received her right-to-sue letter three days after the EEOC mailed it.”); see also DeTata v. Rollprint Packaging Prods., 632 F.3d 962, 968 (7th Cir. 2011); Payan v. Aramark Mgmt. Servs. L.P., 495 F.3d 1119, 1123 (9th Cir. 2007); Coleman v. Potomac Elec. Power Co., 310 F. Supp. 2d 154, 158 (D.D.C. 2004). Pursuant to this presumption, Starwood asserted that Ms. Vazquez received the notice on December 26, 2008, 3 days after the December 23, 2008 date listed on the notice. Her April 6, 2009 lawsuit was therefore filed after 101 days, not within 90 days as required by law, Starwood argued.

In rebutting the 3-day presumption, Ms. Vazquez testified that she repeatedly checked her P.O. Box up until January 1, 2009, when she went to visit family out of state. Only on January 6, 2009, when she returned from her trip, did she find the notice waiting in her box. She said that family members checking her P.O. Box while she was away also did not see a notice, although she could not specify when or how often they checked, leaving it unclear when exactly the notice arrived in the P.O. Box. Her lawsuit was timely, Ms. Vazquez argued, because she filed it within 90 days of her receipt of the notice on January 6, 2009.

The trial court, in an unpublished opinion by Judge Richard Caputo, placed the burden on Ms. Vazquez to demonstrate that letter had not arrived by January 5, the last day before Ms. Vazquez’s April 6 complaint would have been timely. The court found that Ms. Vazquez failed to rebut the 3-day presumption, and dismissed her case. Ms. Vazquez then appealed the decision to the Third Circuit.

On appeal, Judge Kent Jordan of the Third Circuit, writing for the panel, held that the burden the trial court placed on Ms. Vazquez was too onerous. Vazquez v. Caesar's Paradise Stream Resort, 524 Fed. Appx. 831, 834 (3d Cir. 2013). To overcome the presumption, proof need only be “minimal,” he wrote. Once minimal evidence of a greater than 3-day mailing period is presented, the presumption then shifts to the defendant to show the precise date of arrival, and that the plaintiff’s filing was untimely. The Third Circuit noted in footnote 2 that, because the letter was not delivered via certified mail (an EEOC practice for which courts have been critical, see Turner v. Dep't of Educ., 2011 U.S. Dist. LEXIS 46421, 17 (D. Haw. Apr. 28, 2011)), the only way of knowing when the letter arrived was when Ms. Vazquez claimed to have first seen the letter. Vazquez, 524 Fed. Appx. at 834. Ultimately, having found that Ms. Vazquez presented sufficient evidence to rebut the 3-day mailing presumption, the Third Circuit vacated the lower court’s dismissal and remanded the decision.

Disparate Treatment in Adverse Actions Against Those with Braided Hairstyles

On remand, the trial court evaluated the merits of the discrimination claim and issued its decision on December 3, 2013. Vazquez v. Caesar's Paradise Stream Resort, No. 09-cv-0625, 2013 U.S. Dist. LEXIS 170178, 30 (M.D. Pa. Dec. 3, 2013). Judge Caputo found that Ms. Vazquez had established a prima facie case of disparate treatment, as she demonstrated that she was a member of a protected class, suffered an adverse employment action, and that white employees with braids had not suffered such adverse actions. Judge Caputo also found that the employer’s proffered reason for the termination (wearing braids) was pretext, as white employees with braids showing scalp had not been fired, and the termination letter did not mention a violation of the visible scalp policy.

                Employer personal appearance policies, and employers’ enforcement of them, have been subject to litigation and have drawn scrutiny from a variety of commentators. See, e.g., Hollins v. Atlantic Co., Inc., 188 F.3d 652 (6th Cir. 1999) (denying summary judgment where a genuine issue of material fact existed as to whether the employer applied its personal appearance policy equally to black and white women); Graham v. CVS, Inc., No. 09-ca-6426-B (D.C. Super. Ct. 2010); Frank J. Cavico, et al., Appearance Discrimination, “Lookism” and “Lookphobia” in the Workplace, 28 J. App. Bus. Res. 791 (Sept./Oct. 2012); Beth Perry, National Poll Shows Public Opinion Sharply Divided on Regulating Appearance – From Weight to Tattos, Parker Poe Adams & Bernstein LLP, Mar. 22, 2005,; M. Lee Smith, From Beards to Body Piercing: Employers’ Appearance Standards Under Scrutiny,, October 26, 2001,; Spencer Silverglate & Heui Young Choi, Appearance Discrimination, Clarke Silverglate & Campbell, P.A., (last visited Dec. 13, 2013). Univ. of Hawaii L. Sch., Appearance-based Discrimination, available at (last visited Dec. 13, 2013).  

In Ms. Vazquez’s case, the employer claimed that its personal appearance policy was race-neutral: it was not the cornrows themselves that were problematic, but Ms. Vazquez’s visible scalp beneath them. In some ways, however, it was this very claim of neutrality that cost the employer the case. Upon hearing it, the trial court evaluated evidence of Ms. Vazquez’s hairstyle the day of her termination, as well as evidence that white employees wore braids revealing their scalp, and did so without repercussions. This deeper inquiry led the court to conclude that the alleged reason for termination – violation of the no-visible-scalp policy – was pretext. The proffered legitimate reason for termination only sank the employer’s case further.  

Generous Damages Formulation

Once the trial court found Starwood liable for Title VII discrimination, the court went on to examine the damages to which Ms. Vazquez was entitled. The court initially stated that Ms. Vazquez was not entitled to front or back pay because she failed to present evidence to support these damage requests at the trial stage. The court went on to state, however, that 42 U.S.C. § 1981a (section 402 of Title VII) allows for compensatory damages for “future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses.” 42 U.S.C. § 1981a(b)(3); see also Williams v. Pharmacia, Inc., 137 F.3d 944, 952 (7th Cir. 1998) (distinguishing front pay – the pay an employee would have received at an employer but-for her termination – from future pecuniary losses – the compensation to make up for “a lifetime of diminished earnings resulting from the reputational harms she suffered as a result of [the employer’s] discrimination”). The court found that Ms. Vazquez had established by a preponderance of the evidence that she suffered lost future earnings and inconvenience, as Starwood’s termination damaged her reputation by leaving her unemployed. Based on this formulation, the court awarded Ms. Vazquez $25,000 in compensatory damages.

The Vazquez case offers several gifts for plaintiffs’ employment attorneys. First, it provides a fact set that overcomes the 3-day mailing presumption scrupulously adhered to in EEO cases. See, e.g., DeTata, 632 F.3d at 968; Payan, 495 F.3d at 1123; Seitzinger, 165 F.3d at 239; Coleman, 310 F. Supp. 2d at 158. Second, it offers a framework for demonstrating that an employer’s proffered reason for termination – violation of a written personal appearance policy – was pretext, as the employer did not apply the policy equally to white employees. Third, the district court’s case, on remand, illustrates the variety of damages a court can award to a prevailing plaintiff even where that plaintiff fails to show evidence of back pay and front pay damages. A bright bauble of a case indeed. 

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