Denny v. Elizabeth Arden ( 2006 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JEAN DENNY; SEANDRIA DENNY, 
Plaintiffs-Appellants,
v.
 No. 05-1228
ELIZABETH ARDEN SALONS,
INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, District Judge.
(CA-04-588-1)
Argued: May 25, 2006
Decided: August 9, 2006
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Affirmed in part, reversed in part, and remanded by published opin-
ion. Judge Wilkinson wrote the opinion, in which Judge Niemeyer
joined and in which Judge King joined as to Parts III and IV. Judge
King wrote an opinion dissenting in part.
COUNSEL
ARGUED: James Arthur DeVita, Arlington, Virginia, for Appellants.
Benjamin Gaillard Chew, PATTON BOGGS, L.L.P., Washington,
D.C., for Appellee. ON BRIEF: Stephanie J. Quincy, Rachel M.
Bacalzo, SHERMAN & HOWARD, L.L.C., Phoenix, Arizona, for
Appellee.
2 DENNY v. ELIZABETH ARDEN SALONS
OPINION
WILKINSON, Circuit Judge:
In this case an African American woman bought her mother a gift
package from a beauty salon and day spa. Upon visiting the salon to
check on her mother and to add a hair coloring to the package, a
receptionist told her that there was "a problem" because the salon did
not "do black people’s hair." The mother and daughter brought this
suit against the salon under Title II of the Civil Rights Act of 1964,
42 U.S.C. § 2000a et seq. (2000), which prohibits racial discrimina-
tion in a "place of public accommodation," and under 42 U.S.C.
§ 1981, which disallows such discrimination in the making and
enforcing of contracts. Plaintiffs also asserted a state law claim for
intentional infliction of emotional distress. The district court granted
summary judgment to the salon on all claims.
We hold that the district court properly dismissed plaintiffs’ Title
II claim, because the salon is not a "place of public accommodation,"
as that term is defined in the statute. Congress has clearly delineated
those entities that fall within Title II’s ambit, and we are not at liberty
to go beyond what it has plainly enacted. But neither can we disregard
a congressional edict that proscribes racial discrimination in the con-
tractual setting. We thus hold that the district court erred in dismissing
plaintiffs’ § 1981 claim, because plaintiffs have presented sufficient
evidence to create a triable dispute of fact over whether the salon
engaged in the form of discrimination that § 1981 expressly prohibits.
Finally, we conclude that the district court appropriately dismissed
plaintiffs’ state law claim. We thus affirm in part and reverse in part
and remand for further proceedings.
I.
Plaintiffs are Seandria Denny and her mother, Jean Denny. They
are African American. Defendant is Elizabeth Arden Salons, Inc.,
which operates Red Door Salon and Spa, an upscale beauty salon and
day spa with locations in Virginia and several other states. The salon
offers its customers a variety of different beauty services, including
hair, skin, and nail care, makeup artistry, and massages, facials, and
other body treatments.
DENNY v. ELIZABETH ARDEN SALONS 3
The dispute in this case arose from incidents at a Red Door salon
in the Tysons Corner Shopping Center in Northern Virginia. On May
26, 2002, Seandria Denny visited the salon to purchase a gift for her
mother. She decided to buy Elizabeth Arden’s $295 "Miracle Morn-
ing" package, which included a massage, facial, manicure, hair style,
and lunch. Four days later, Jean Denny went to the salon to redeem
her gift package. She received a facial and massage, and the salon
then provided her with a salad for lunch. She obtained these services
without incident, and planned to have her hair styled after lunch.
While Jean Denny was being served, Seandria Denny called the
salon to request that it also color her mother’s hair. Over the phone,
the employee with whom she spoke agreed that the salon would per-
form the coloring. Seandria Denny indicated that she would arrive at
the salon shortly to pay for the hair coloring (which cost extra) and
to see how her mother was doing. Upon her arrival, she approached
the receptionist, Raha Ashrafi, and told her that she would like to
check on her mother. Ashrafi responded, "[w]ell, Ms. Denny, I think
we have a problem." The salon, she explained, did not "do black peo-
ple’s hair." Denny suggested that her mother’s hair was straight and
similar to Caucasian hair, but Ashrafi continued to maintain that the
salon did not do African American hair. Ashrafi indicated that the
salon’s manager, Chelsey Orth, would shortly be able to speak with
Denny.
According to Seandria Denny, upon Orth’s arrival, Orth reiterated
the salon’s refusal to work on Jean Denny’s hair. Seandria Denny,
outraged, suggested that one of the salon’s eight or nine hair stylists
should be able to do her mother’s hair. Orth responded, however, that
she had discussed the situation with each stylist, and all had refused.
Seandria Denny told the salon not to touch her mother’s hair and that
she wanted her mother to leave once she was done with her massage.
She then exited the salon, without having seen her mother during the
visit. The record is unclear what treatments Jean Denny had received
at the time her daughter left the salon.
Orth remembers the events quite differently. She contends that she
spoke with Seandria Denny only about her mother’s hair coloring.
Since the hair coloring would have added an hour to Jean Denny’s
visit, Orth was unable to include it on such short notice. Orth claims
4 DENNY v. ELIZABETH ARDEN SALONS
that she explained this to Jean (but not Seandria) Denny, who
responded that she did not want her hair colored in any event. Sean-
dria Denny disputes that anyone from Elizabeth Arden ever suggested
to her that the hair coloring could be done on a different day.
After Jean Denny had eaten lunch, one of Elizabeth Arden’s
employees shampooed her hair. Denny then had to wait approxi-
mately ten to fifteen minutes for a hair stylist, which, in her opinion,
was a little long as compared to other customers. The hair stylist
appears not to have asked Jean Denny how she wanted her hair styled,
and Denny did not instruct her. Denny expected that the hair stylist
would use hot curlers, but the stylist only blow-dried and round
brushed Denny’s hair. When she had finished, she gave Denny a mir-
ror to view her hair, but never asked Denny if she approved. Denny
was shocked when she saw her hair, because the stylist had left it
looking like "a bush."
Jean Denny was so surprised and embarrassed by her hair’s appear-
ance that she wanted to leave immediately. Without expressing disap-
proval, Denny got out of the chair, grabbed her coat, and quickly left
for her car. She did not stay for the manicure that was included in her
package, and did not ask for her money back. She went home, to find
her daughter waiting for her. Seandria Denny was aghast when she
saw her mother’s hair, and furious that the salon had disregarded her
instructions not to touch it. The next day, Jean Denny washed and
styled her own hair.
Plaintiffs filed suit against Elizabeth Arden on May 20, 2004. They
brought two discrimination claims, one under Title II of the Civil
Rights Act of 1964, 42 U.S.C. § 2000a et seq. (2000), and the other
under 42 U.S.C. § 1981. They also alleged a claim of intentional
infliction of emotional distress under Virginia law. Elizabeth Arden
moved for summary judgment, which the district court granted. The
district court first held that Title II did not cover the salon. It then
concluded that plaintiffs did not proffer evidence sufficient to illus-
trate either that they were discriminated against in the making and
enforcing of a contract under § 1981 or that their emotional distress
was severe.
DENNY v. ELIZABETH ARDEN SALONS 5
II.
Plaintiffs first argue that the district court improperly dismissed
their Title II claim. Title II entitles individuals "to the full and equal
enjoyment of the goods, services, facilities, privileges, advantages,
and accommodations of any place of public accommodation . . . with-
out discrimination or segregation on the ground of race, color, reli-
gion, or national origin." 42 U.S.C. § 2000a(a). It sets forth a
comprehensive list of establishments that qualify as a "place of public
accommodation," id. § 2000a(b), and in so doing excludes from its
coverage those categories of establishments not listed. Places of pub-
lic accommodation include: (1) hotels and other businesses providing
"lodging to transient guests," id. § 2000a(b)(1); (2) restaurants and
other facilities "principally engaged in selling food for consumption
on the premises," id. § 2000a(b)(2); (3) "place[s] of exhibition or
entertainment," id. § 2000a(b)(3); and (4) establishments that are,
inter alia, within a covered establishment, id. § 2000a(b)(4). Whether
an entity qualifies as a "place of public accommodation" can be a
fact-intensive inquiry, because establishments "differ markedly in
their operations." Nesmith v. YMCA of Raleigh, N.C., 397 F.2d 96, 98
(4th Cir. 1968).
Plaintiffs rely on only one subsection of Title II’s definition provi-
sion, contending that the salon is a "place of entertainment" under
§ 2000a(b)(3). Section 2000a(b)(3) defines "place of public accom-
modation" to include "any motion picture house, theater, concert hall,
sports arena, stadium or other place of exhibition or entertainment."
Id.
We cannot agree with plaintiffs’ argument. The plain text of the
statute demonstrates that beauty salons are not covered by Title II.
They are not mentioned in any of the numerous definitions of "place
of public accommodation." They also bear little relation to those
places of entertainment that are specifically listed, which strongly
suggests that a salon would not fall within the catchall language
"other place of exhibition or entertainment." 42 U.S.C. § 2000a(b)(3).
As the Supreme Court has indicated, "the statutory language ‘place of
entertainment’ should be given full effect according to its generally
accepted meaning." Daniel v. Paul, 395 U.S. 298, 308 (1969)
(emphasis added). A "place of entertainment" is one whose particular
6 DENNY v. ELIZABETH ARDEN SALONS
purpose is to entertain. See The Random House Dictionary of the
English Language 1478 (2d ed. 1987) (defining "place" as, inter alia,
"a space, area, or spot, set apart or used for a particular purpose: a
place of worship; a place of entertainment") (emphasis added). Unlike
a theater, concert hall, or sports arena — all of which are specifically
designed to entertain their patrons — the principal function of the
salon in this case is to offer its customers hair, skin, and body care.
Visiting a salon does not fairly approximate the experience of attend-
ing a movie, symphony, or sporting match. Rather, the salon is more
similar to businesses that offer tangible services, not entertainment.
Our friend in dissent would have us believe that Elizabeth Arden
was doing anything other than styling hair and providing other beauty
services, but such treatments were of course central to its business.
Indeed, the styling of Jean Denny’s hair is what this entire dispute is
all about. This is not enough to transform a beauty salon into a "place
of entertainment" remotely akin to the movies, concerts, and sports
facilities Congress listed in the statute. Unfortunately, the dissent
takes such an expansive view of the term "place of entertainment" that
an automobile repair shop is apparently the only thing that does not
fit within it. See infra at 17, 19 n.6.
The other subsections setting forth Title II’s definition of "place of
public accommodation" reinforce the ordinary textual reading that
"place of entertainment" refers to those establishments designed to
entertain. See 42 U.S.C. § 2000a(b). For Congress specifically
included within Title II other service establishments, such as hotels
and restaurants, see id. § 2000a(b)(1)-(2), and it chose not to cover
with particularity facilities that sell salon services. If, however, Con-
gress had intended for "place of entertainment" to encompass any ser-
vice establishment with tangential entertainment value, there would
have been no reason for Congress to include separate subsections for
hotels, restaurants, and similar establishments in the statute. Thus to
include in the statute all places where patrons might go in some part
for relaxation, as the dissent would have it, renders unnecessary the
entire exercise in statutory draftsmanship that Congress undertook in
42 U.S.C. § 2000a(b). We therefore decline to allow plaintiffs to
bootstrap defendant’s establishment into the "place of entertainment"
provision, and thereby circumvent the congressional balance evi-
denced in § 2000a(b).
DENNY v. ELIZABETH ARDEN SALONS 7
The case law delimiting the breadth of § 2000a(b)(3) also supports
the plain and ordinary meaning of "place of entertainment." In Paul,
the Supreme Court held that "a 232-acre amusement area with swim-
ming, boating, sun bathing, picnicking, miniature golf, dancing facili-
ties, and a snack bar" was a place of entertainment. 395 U.S. at 301,
306. The Court explained that the phrase should be interpreted in
accord with its ordinary meaning to include both those "establish-
ments where patrons are entertained as spectators or listeners" and
"those where entertainment takes the form of direct participation in
some sport or activity." Id. at 306 & n.7, 308. As Paul illustrates, a
place of entertainment is one designed to entertain its patrons, even
if a customer participates in the entertainment.
The salon in this case — primarily offering body maintenance ser-
vices with tangential entertainment value — does not readily compare
to the "amusement business" in Paul, whose raison d’être was to sell
entertainment to its customers. 395 U.S. at 301. Nor are the salon’s
services analogous to the great bulk of establishments that lower
courts have held to be places of entertainment: most have had amuse-
ment and recreational elements front and center. See, e.g., United
States v. Greer, 939 F.2d 1076, 1091 n.15 (5th Cir. 1991) (public
parks); United States v. Lansdowne Swim Club, 894 F.2d 83, 87 (3d
Cir. 1990) (community swimming facility); Smith v. YMCA of Mont-
gomery, Inc., 462 F.2d 634, 636, 648 (5th Cir. 1972) (YMCA that
offered "numerous recreational activities, such as swimming, scuba
diving, table tennis, basketball, [and] tennis" and also maintained sev-
eral recreational facilities, including "five gymnasiums, a health club,
and eight swimming pools"); Evans v. Seaman, 452 F.2d 749, 751
(5th Cir. 1971) (roller skating rink); United States v. Cent. Carolina
Bank & Trust Co., 431 F.2d 972, 973-74 (4th Cir. 1970) (golf course);
Scott v. Young, 421 F.2d 143, 144-45 (4th Cir. 1970) (recreational
area that was "a virtual carbon copy" of the business in Paul); Miller
v. Amusement Enters., Inc., 394 F.2d 342, 351 (5th Cir. 1968) (en
banc) (amusement park); see also Welsh v. Boy Scouts of Am., 993
F.2d 1267, 1269 (7th Cir. 1993) (noting that § 2000a(b)(3)
includes "bowling alleys, golf courses, tennis courts, gymnasiums,
swimming pools and parks"); Nesmith, 397 F.2d at 100 (suggesting
that a YMCA’s "swimming pool, gymnasium and exercise activities"
might fall under § 2000a(b)(3)).
8 DENNY v. ELIZABETH ARDEN SALONS
Plaintiffs — and the dissent — have not directed us to even a sin-
gle case in which a court has found that Title II covered a salon like
the instant one. In fact, in the one case presenting facts most similar,
the court held that a hair salon was not a "place of entertainment." See
Halton v. Great Clips, Inc., 94 F. Supp. 2d 856, 862 (N.D. Ohio
2000). The Halton court found that such a salon fell outside the ordi-
nary meaning of the phrase. Id. It went on to explain that had Con-
gress wished to include a salon within Title II, it could have easily
done so. Id.; see also Pinkney v. Meloy, 241 F. Supp. 943, 947 (N.D.
Fla. 1965) (quoting legislative history from Title II indicating that
"barber shops, beauty parlors and other establishments are not cov-
ered [by the Act] unless they are contained within a hotel"). Congress
has, for instance, specifically listed beauty shops as "public accom-
modations" covered by the Americans with Disabilities Act. See Hal-
ton, 94 F. Supp. 2d at 862-63 & n.7 (citing 42 U.S.C. § 12181(7)(F)).
Plaintiffs primarily rely on Rousseve v. Shape Spa for Health &
Beauty, Inc., 516 F.2d 64, 65 (5th Cir. 1975), which held that a health
and exercise studio was a place of entertainment. To be sure, the
health club in Rousseve, like the salon in this case, offered its clients
massages and facials. See id. at 67. But the similarities end there. The
health club in Rousseve supplied its customers with recreational areas
and facilities, such as gymnasium equipment and swimming pools,
that are conspicuously absent in the present case. Id. Indeed, plaintiffs
overlook the fact that the Rousseve court explicitly indicated that the
health club’s facilities were akin to those provided by the YMCA,
which the Fifth Circuit had already found to be a place of public
accommodation. Id. at 68 (citing Smith, 462 F.2d at 648). Simply put,
Rousseve cannot provide plaintiffs with the cornerstone necessary to
support their atextual construction of Title II.1
1
Our dissenting friend alights on the term "spa" as distinguished from
"salon." But this distinction is one without a difference. For the statute
requires an establishment to be a "place of entertainment," rather than a
service establishment with incidental relaxation value. Thus the fact that
Elizabeth Arden writes the word "spa" above its doorpost no more con-
verts its beauty service business into a "place of entertainment" than does
the fact that some clients might find hair styling and beauty treatments
relaxing. Indeed, the "spa" cases on which the dissent relies differ mark-
edly from Elizabeth Arden — they offered YMCA-like facilities with,
inter alia, gyms, exercise equipment, and fitness classes.
DENNY v. ELIZABETH ARDEN SALONS 9
As the foregoing discussion of statutory text and case law makes
clear, Title II approached the question of what is an establishment not
through a generic definition, but through a series of extended lists.
Indeed, § 2000a(b) lists no fewer than fourteen examples of establish-
ments, and subsection (b)(3) lists no fewer than five different places
of entertainment. Barber shops and beauty salons are sufficiently
common and pervasive that we cannot casually attribute their omis-
sion to mere oversight. Indeed, it would have been easy enough for
Congress to have included them. And while some of the salon’s ser-
vices might have provided its customers with relaxation, the salon is
not a "place of entertainment" within the meaning of Title II, because
it is designed to market high-quality hair, skin, and body care, not
amusement. We note, however, that we have interpreted the statute as
it does read, not perhaps as it should read. One can think of good rea-
sons why Title II should include both beauty salons and barber shops,
even those catering to specific clienteles. That, however, is a matter
for legislative debate. It remains our job to respect what Congress has
said, not to put words in its mouth.
III.
Plaintiffs next contend that the district court committed error when
it dismissed their § 1981 claim. Section 1981 establishes that "[a]ll
persons . . . have the same right . . . to make and enforce contracts
. . . as is enjoyed by white citizens." 42 U.S.C. § 1981(a). It defines
"make and enforce contracts" to include "the making, performance,
Moreover, our dissenting brother travels far afield to obscure the issue
in this case. In an attempt to demonstrate that its view of the term "enter-
tainment" is not infinitely elastic, the dissent first offers up, albeit only
illustratively, an auto repair shop as something not designed to entertain.
Then, it offers, but again only illustratively, visions of "resorts" and of
a Belgian town known for the curative properties of its mineral springs.
For good measure, we are told about a 7,800 square-foot day spa and
clubhouse in Avignon, France, and that Guantanamo is not a spa. See
infra at 20-21. Apparently, there are spas and there are spas. All this glo-
betrotting, interesting as it might be, has unfortunately little enough to do
with the defendant’s business or the statutory text or structure with which
the dissent has yet to deal.
10 DENNY v. ELIZABETH ARDEN SALONS
modification, and termination of contracts, and the enjoyment of all
benefits, privileges, terms, and conditions of the contractual relation-
ship." Id. § 1981(b). To prove a § 1981 claim, therefore, a plaintiff
must ultimately establish both that the defendant intended to discrimi-
nate on the basis of race, and that the discrimination interfered with
a contractual interest. See, e.g., Williams v. Staples, Inc., 372 F.3d
662, 667 (4th Cir. 2004); Morris v. Dillard Dep’t Stores, Inc., 277
F.3d 743, 751-52 (5th Cir. 2001); Morris v. Office Max, Inc., 89 F.3d
411, 413-15 (7th Cir. 1996).
There can be no doubt that plaintiffs have presented not only strong
but direct evidence of the salon’s intent to discriminate.2 See Murrell
v. Ocean Mecca Motel, Inc., 262 F.3d 253, 257 (4th Cir. 2001).
Indeed, plaintiffs have presented evidence that suggests the salon
refused to perform on a contract — either denying plaintiffs a hair
styling, hair coloring, or both — for an explicit race-based reason.
This is what § 1981 forbids.
In fact, it is hard to imagine plainer evidence of purposeful discrim-
ination than when services are denied expressly because the purchaser
is African American. When Seandria Denny arrived to pay for her
mother’s hair coloring, the receptionist explained that the salon did
not "do black people’s hair." Denny also alleges that Chelsey Orth,
the salon’s manager, confirmed this view from management’s per-
spective. Orth further explained that each and every one of the eight
or nine hair stylists present refused to work on Jean Denny’s hair.
While there may be a more benign explanation for the salon’s refusal
to fully serve plaintiffs, the receptionist’s overt racial explanation
creates a triable dispute. See Williams, 372 F.3d at 667.
There can likewise be no doubt that plaintiffs have demonstrated
2
When a plaintiff has presented no direct evidence of the defendant’s
discriminatory intent, we have applied the familiar McDonnell Douglas
framework to § 1981 claims involving contracts for the purchase of
goods or services. See Williams, 372 F.3d at 667; Murrell v. Ocean
Mecca Motel, Inc., 262 F.3d 253, 257 (4th Cir. 2001); see also McDon-
nell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Plaintiffs do
not make use of this framework here, however, and instead rely on direct
evidence of the salon’s discriminatory intent.
DENNY v. ELIZABETH ARDEN SALONS 11
a concrete contractual relationship. "[A] plaintiff must establish the
loss of an actual, not speculative or prospective, contract interest."
Dillard, 277 F.3d at 751. Seandria Denny bought an expensive gift
package that gave her mother the specific contractual right to receive
a massage, facial, manicure, lunch, and hair style. She also reached
an agreement with the salon’s receptionist over the phone to add a
hair coloring to the package. These transactions plainly satisfy
§ 1981’s contract requirement.
This case is different therefore from those where a plaintiff’s fail-
ure to advance a pending or current contractual relationship proved
fatal to a § 1981 claim. See, e.g., Dillard, 277 F.3d at 751-53 (dis-
missing § 1981 claim when defendant retail establishment banned
plaintiff from its premises after her alleged shoplifting because plain-
tiff failed to "offer evidence of some tangible attempt to contract with
[defendant]"); Office Max, 89 F.3d at 414-15 (dismissing § 1981
claim when defendant retail establishment summoned "the police to
‘check out’ African-American patrons" because the patrons could not
point to the "actual loss of a contract interest" resulting from defen-
dant’s conduct). In this case, by contrast, the beauty establishment
offered in advance a carefully crafted package for a specified price.
Seandria Denny’s purchase of the package for her mother operated as
an acceptance, and the existence of the contractual relationship cannot
be in serious question.
We do not suggest, of course, that every person who walks into a
commercial establishment and is denied service or is otherwise dissat-
isfied can maintain a § 1981 cause of action. Beauty salons cater
uniquely to taste, and loss of business — not litigation — is the usual
cost of customer dissatisfaction. We do not have before us, however,
the question of whether Denny did or did not receive hair styling to
her liking, but whether for reasons of race she was denied hair styling
altogether or in any meaningful sense of the term. Defendant argues
that the § 1981 claim fails because plaintiffs received all the services
for which they contracted. See, e.g., Williams, 372 F.3d at 667 (plain-
tiff must show that "he was denied the opportunity to contract for
goods or services"). At this stage of litigation, however, defendant’s
argument fails: there is sufficient disagreement on this material fact
to withstand summary judgment with respect to Jean Denny’s hair
styling and hair coloring.
12 DENNY v. ELIZABETH ARDEN SALONS
To begin with, the salon offered insufficient evidence that its
employees came close to styling Jean Denny’s hair. Denny received
a shampoo, brush, and blow dry. This combination left her hair look-
ing like "a bush." The record provides no indication of what Elizabeth
Arden considers a "hair style," and in view of the evidence before us,
we cannot conclude summarily that the contract was ever performed.
Indeed, defendant’s employees themselves expressed an unwilling-
ness to perform, telling Seandria Denny that her mother’s race pre-
vented it. Moreover, if Jean Denny did in fact receive a hair style, it
was no large task for the salon to so prove — by way of advertise-
ments, its employees, or customary standards of salon service. But
again, the salon made essentially no effort to rebut plaintiffs’ claim
that they did not receive for racial reasons the basic service for which
they contracted.
There is also a genuine issue of material fact concerning whether
the salon refused to provide a hair coloring on the basis of race.
According to Seandria Denny, one of defendant’s employees agreed
over the phone that the salon would color her mother’s hair. When
Seandria Denny arrived at the salon to pay for the coloring, however,
the receptionist backpedaled and told her that the salon did not "do
black people’s hair." While Orth, the salon’s manager, suggests that
the salon did not have time to color Jean Denny’s hair, Seandria
Denny was never so informed. And though the true basis of the deci-
sion may be in some dispute, what is not disputed is that Jean Denny
never received a hair coloring. Defendant’s contention that Jean
Denny may not actually have wanted her hair colored ignores the fact
that this was a third-party beneficiary contract. See, e.g., Levine v.
Selective Ins. Co. of Am., 462 S.E.2d 81, 83 (Va. 1995). Seandria
Denny, the purchaser, wanted to buy her mother a gift and was
refused that opportunity on race-based grounds. If the salon refused
to contract with Seandria Denny because of her mother’s race, that is
all that § 1981 requires.
It is, of course, entirely possible that the trier of fact may ultimately
see this matter Elizabeth Arden’s way. The record before us, how-
ever, at least draws into serious question the neutral and non-racial
explanations for whatever happened here.
DENNY v. ELIZABETH ARDEN SALONS 13
IV.
Plaintiffs lastly argue that the district court erred in dismissing their
state claim of intentional infliction of emotional distress. We disagree.
This tort is "not favored" under Virginia law, Ruth v. Fletcher, 377
S.E.2d 412, 415 (Va. 1989) (internal quotation marks omitted), and
liability only arises if, inter alia, a defendant’s conduct results in
severe emotional distress "that no reasonable person could be
expected to endure," Russo v. White, 400 S.E.2d 160, 163 (Va. 1991).
Plaintiffs have failed to present evidence that they suffered suffi-
ciently severe distress. They have alleged that defendant’s conduct
made them nervous, caused them stress, and resulted in an inability
to adequately sleep and eat. It is not to minimize these effects to say
that they fall short under Virginia law. Plaintiffs make no claim "that
[they] had any objective physical injury caused by the stress, that
[they] sought medical attention, that [they were] confined at home or
in a hospital, or that [they] lost income." Russo, 400 S.E.2d at 163
(dismissing claim where plaintiff only alleged nervousness, stress,
and inability to sleep or concentrate at work); see also Harris v.
Kreutzer, 624 S.E.2d 24, 34 (Va. 2006) (same). If the distress plain-
tiffs allege was sufficient to be actionable, courts could become arbi-
ters of every human interaction that culminated in embarrassment,
disappointment, or hurt feelings. Virginia law has refused to counte-
nance this possibility, and the district court properly dismissed plain-
tiffs’ state law claim.
V.
While Title II clearly excludes this salon from coverage, sec-
tion 1981 just as clearly governs racial animus in the making and
enforcement of contracts. Our distinguished colleague in dissent sim-
ply overlooks the fact that the Reconstruction Congress and the 1964
Congress went about their work in different ways. The Reconstruction
Congress wrote broadly, and we have given effect to that breadth as
expressed in section 1981. The 1964 Congress also wrote broadly, but
made clear through a series of specific references that Title II’s reach,
while ample, was not wholly without limit. Courts can no more place
words in Title II than they can ignore the core command of § 1981.
Since plaintiffs have proffered sufficient evidence that the salon dis-
14 DENNY v. ELIZABETH ARDEN SALONS
criminated against them on the basis of race in its performance of
contractual obligations, their § 1981 claim must survive summary
judgment.
For the foregoing reasons, the judgment of the district court is
affirmed in part and reversed in part, and the case is remanded for
proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
KING, Circuit Judge, dissenting in part:
Although I readily concur in the majority’s reinstatement of the
Dennys’ § 1981 claim (Part III), and in its disposition of their state-
law claim (Part IV), I disagree with Part II of the majority opinion.
In my view, the majority has erred in ruling that the Elizabeth Arden
Red Door Salon and Spa (the "Red Door Spa," or the "Spa") falls out-
side the ambit of the Civil Rights Act of 1964. As I see it, the majori-
ty’s analysis suffers from two fatal errors. First, it fails to adhere to
controlling precedent and accord proper effect to the broad statutory
language of section 201 of the Civil Rights Act, codified at 42 U.S.C.
§ 2000a (the "Public Accommodations Statute," or the "Statute").
Second, its reasoning relies on a crucial factual misapprehension —
that the Red Door Spa is merely a hair salon when, in fact, it is much,
much more.
I would recognize the Red Door Spa for what it is — a place of
public accommodation within the meaning of the Public Accommoda-
tions Statute. And I would reverse the district court, reinstating the
Dennys’ claim that Elizabeth Arden denied them the full and equal
enjoyment of the Spa’s services because they are African-American
(the "Public Accommodations Claim").
I.
In assessing the district court’s award of summary judgment to
Elizabeth Arden, we are obliged to view the facts, and the reasonable
inferences to be drawn therefrom, in the light most favorable to the
Dennys. See Baqir v. Principi, 434 F.3d 733, 741 (4th Cir. 2006).
DENNY v. ELIZABETH ARDEN SALONS 15
Assessed in that light, the record discloses the following: The Red
Door Spa, located directly across from the Tyson’s Corner Shopping
Center in Vienna, Virginia, is open to the public, and its operations
affect interstate commerce. According to its website, the Spa offers
"a complete menu of salon and spa services," including "signature
skincare, massage and body treatments, nail services, hair design,
makeup artistry, and much, much more." J.A. 65 (emphasis added).1
These services include the "elemental balancing massage," which, the
website declares, "has been called an ‘out of body experience’ by
many of our guests." Id. Moreover, one of the Spa’s advertising bro-
chures lists the various packages it offers — with names such as the
"Red Door Rescue," the "Miracle Morning," and the "Executive
Escape" — that include such services as "Purifying Scented Body
Wrap[s]," "Desert Stone Massage[s]," and "Swedish Massage[s]."
J.A. 66.
On May 26, 2002, Seandria Denny purchased a gift package from
the Red Door Spa for her elderly mother, Jean, who was in her seven-
ties. The gift package, called the "Miracle Morning" by the Spa, sold
for the sum of $295 and included a Swedish body massage, a "Red
Door Facial," a "Warm Cream" manicure, hair styling, makeup appli-
cation, and a "Spa" lunch. J.A. 65. Jean Denny went to the Spa on
May 30, 2002, to redeem her Miracle Morning gift package and,
while Jean was obtaining her spa services, her daughter Seandria
decided to augment the gift by the additional purchase of a hair color-
ing for her mother. Seandria then telephoned the Spa, arranged to pur-
chase the hair coloring, and drove to the Spa to pay and to check on
her mother.
When Seandria arrived at the Red Door Spa and sought to pay for
Jean’s hair coloring, however, she was advised by the Spa’s recep-
tionist that "we have a problem." J.A. 73. Seandria inquired promptly
about the "problem," and the receptionist made the racist response
that the Spa did not "do black people’s hair." Id. When Seandria pro-
tested that "[t]here is no such thing as black people’s hair," the recep-
tionist reiterated: "I’m sorry, we just don’t do it. If you don’t mind
sitting down, I will have my manager come talk to you and explain
to you what’s going on." Id. Shortly thereafter, the Spa’s manager
1
The citations to "J.A. ___" refer to the contents of the Joint Appendix.
16 DENNY v. ELIZABETH ARDEN SALONS
approached Seandria and advised her that "every single one" of the
eight or nine hair stylists on duty had "refused" to color Jean’s hair.
Id. at 74. Continuing, the manager explained that "20 years ago they
were all required and trained to do black people’s hair, but in this day
and age it is not required." Id.
II.
A.
The Public Accommodations Statute guarantees that, in this coun-
try, "[a]ll persons shall be entitled to the full and equal enjoyment of
the goods, services, facilities, privileges, advantages, and accommo-
dations of any place of public accommodation, as defined [herein],"
irrespective of their race or color. 42 U.S.C. § 2000a(a). The Supreme
Court has recognized that the Statute’s "overriding purpose" is "to
remove the daily affront and humiliation involved in discriminatory
denials of access to facilities ostensibly open to the general public."
Daniel v. Paul, 395 U.S. 298, 307-08 (1969) (internal quotation
marks omitted). Accordingly, the Court has mandated that we read the
Statute carefully, in a manner consistent with its broad purpose and
language.
Pursuant to the Public Accommodations Statute, a "place of public
accommodation" has three characteristics: (1) it "serves the public";
(2) it "affects interstate commerce"; and (3) it falls within one of four
categories enumerated. See § 2000a(b). According to Elizabeth Arden
and the majority, the Red Door Spa does not constitute a "place of
public accommodation" under the Statute because it does not fit into
any of the four categories enumerated in § 2000a(b). I strenuously
disagree, and submit that the Spa falls squarely within the third such
category, § 2000a(b)(3).
Section 2000a(b) includes, as a place of public accommodation,
"any motion picture house, theater, concert hall, sports arena, stadium
or other place of exhibition or entertainment." See § 2000a(b)(3)
(emphasis added). And the Supreme Court, in addressing the Statute’s
breadth, has determined that "the statutory language ‘place of enter-
tainment’ should be given full effect according to its generally
accepted meaning." Daniel, 395 U.S. at 308. According to the Court,
DENNY v. ELIZABETH ARDEN SALONS 17
even though "most of the discussion in Congress regarding the cover-
age of [the Public Accommodations Statute] focused on places of
spectator entertainment[,] . . . a natural reading of its language would
call for broader coverage." Daniel, 395 U.S. at 307-08. To illustrate,
Justice Brennan quoted from Webster’s Third New International Dic-
tionary, defining "entertainment" as "the act of diverting, amusing, or
causing someone’s time to pass agreeably." Id. at 306 n.7. Having so
construed the "place of entertainment" provision of the Statute, Jus-
tice Brennan had little difficulty concluding for the Court that the rec-
reation area at issue in Daniel constituted a "place of public
accommodation" under the Statute. Id. at 308.2
Pursuant to the settled principles of Daniel, the facilities enumer-
ated as "place[s] of exhibition or entertainment" in § 2000a(b)(3) are
unified by their common purpose of providing relaxation, amusement,
recreation, and the like. And whether a particular business establish-
ment constitutes such a "place of entertainment" is determined by a
fact-bound inquiry into the facility’s purposes. See United States v.
Cent. Carolina Bank and Trust Co., 431 F.2d 972, 974 (4th Cir. 1970)
(focusing on golf pro shop’s purpose as adjunct to golf course and
concluding that pro shop was "place of entertainment"). For example,
few persons visit auto mechanics to be amused or diverted, and an
auto mechanic’s shop thus would not likely constitute a "place of
entertainment" under the Public Accommodations Statute, even
though it might provide its waiting customers with a television for
casual viewing.3 By contrast, an amusement park —— featuring roller
coasters —— derives its business from those who seek the thrills
associated with speed and heights, and is thus "a place of entertain-
ment" within the Statute, notwithstanding that its primary method of
2
There was no dissent in Daniel from Justice Brennan’s handling of
the "place of entertainment" issue. Justice Black, the lone dissenter,
wrote that he "could and would" agree with the Court’s holding (includ-
ing its statutory interpretation) if Congress had enacted the Public
Accommodations Statute pursuant to the Fourteenth Amendment, rather
than the Commerce Clause. See Daniel, 395 U.S. at 309 (Black, J., dis-
senting).
3
As the qualifier "[f]or example" demonstrates, the hypothetical auto
mechanic’s shop is just one of the entities that might not be a "place of
entertainment" under the Statute. See ante at 6.
18 DENNY v. ELIZABETH ARDEN SALONS
entertainment differs from that offered by motion picture houses, the-
aters, concert halls, or sports arenas.
Business entities that provide their customers with physical and
personal care services exist along a spectrum from the purely utilitar-
ian to the entertaining. As a general proposition a traditional barber
shop (providing hair cuts only) may not fit into any ordinary defini-
tion of a "place of entertainment." See Halton v. Great Clips, Inc., 94
F.Supp. 2d 856, 862 (N.D. Ohio 2000) (concluding that establishment
which provided only "hair services" was not "place of entertainment"
under § 2000a(b)(3)). On the other hand, those business entities that
exist to pamper, amuse, or provide recreation to their customers
plainly have the purpose of entertaining, and thus fall within the Pub-
lic Accommodations Statute’s "broad[] coverage." See Daniel, 395
U.S. at 307; Rousseve v. Shape Spa for Health and Beauty, Inc., 516
F.2d 64, 67-68 (5th Cir. 1975) (concluding that defendant’s health spa
is "place of entertainment"); Johnson v. Brace, 472 F.Supp. 1056 (E.
D. Ark. 1979) (same); see also Halton, 94 F.Supp. 2d at 862 ("Courts
have found covered establishments include, inter alia: health spas,
golf courses, and beach clubs . . . .").4
My good friends in the majority erroneously conclude that the Red
Door Spa is not a place of public accommodation, reasoning that "the
plain text of the [S]tatute demonstrates that beauty salons are not cov-
ered by [it]," because "[t]hey are not mentioned in any of the numer-
ous definitions of ‘place of public accommodation,’" and "[t]hey also
bear little relation to those places of entertainment that are specifically
listed." Ante at 5; see also id. at 6 (stating that "a beauty salon" is not
"remotely akin to the movies, concerts, and sports facilities Congress
listed in the statute"). The Court in Daniel, however, specifically
rejected the ejusdem generis conclusion that places of entertainment
4
The Public Accommodations Statute applies to all "place[s] of public
accommodation," and includes therein all "place[s] of . . . entertain-
ment." See § 2000a(a) & (b)(3) (emphasis added). Accordingly, I view
the majority’s assertion that "the styling of Jean Denny’s hair is what this
entire dispute is all about" as incorrect and largely irrelevant. See ante
at 6. There is no basis for concluding that a "place of entertainment" is
freed from the Statute’s prohibition against racial discrimination simply
because it also provides some service that is not "entertaining."
DENNY v. ELIZABETH ARDEN SALONS 19
"should be restricted to the primary objects of Congress’ concern" —
that is, motion picture houses, theaters, concert halls, sports arenas,
and stadiums, as expressly enumerated in § 2000a(b)(3) — because
"a natural reading" discloses the Statute’s "broader coverage." See
395 U.S. at 307.5 Indeed, any business entity that has the specific pur-
pose of providing "entertainment," as that term is generally under-
stood, is covered by the Statute’s broad reach. See id.6
In seeking to distinguish Daniel, the majority, as it must, focuses
on the decision’s result — that the 232-acre amusement area in ques-
tion was a place of entertainment — and fails to adhere to the Court’s
broad construction of "place of entertainment." Compare ante at 7,
with Daniel, 395 U.S. at 307-08. We are bound, however, by the
Court’s construction of § 2000a(b)(3) in Daniel, which has consti-
tuted controlling precedent for thirty-six years. If Congress had
desired to overrule Daniel in favor of some narrower interpretation,
it could easily have amended § 2000a(b)(3) to read, in relevant part,
"or other similar place of exhibition or entertainment." In the absence
of such Congressional action, we are obliged to apply Daniel’s broad
construction of the Statute.7
5
The Latin "ejusdem generis" ("of the same kind or class") refers to the
canon of construction "that when a general word or phrase follows a list
of specifics, the general word or phrase will be interpreted to include
only items of the same type as those listed." Black’s Law Dictionary 556
(8th ed. 2004).
6
I agree with the majority that a "place of entertainment" must have a
"particular purpose" of entertaining. See ante at 5-6. Accordingly, as I
have pointed out (illustratively), an auto mechanic’s shop that provides
television for waiting customers is probably not a "place of entertain-
ment" because entertaining is not one of the shop’s purposes; the shop
is in the business of fixing cars. I disagree, however, with the majority’s
suggestion that an establishment’s lone "raison d’être" must be entertain-
ing guests, or that the facility’s "amusement and recreational elements"
must be "front and center." See id. at 7. A business can have more than
one purpose and, so long as one of those purposes is entertainment, it is,
under the Statute, a "place of entertainment."
7
The majority contends that its construction of the Statute is also sup-
ported by the Americans with Disabilities Act of 1990, which defines
"place of public accommodation" more specifically than the Statute. See
ante at 8; 42 U.S.C. § 12181(7). That Congress has spoken with greater
specificity in an unrelated, more recent enactment says nothing, however,
of how we must interpret the Public Accommodations Statute.
20 DENNY v. ELIZABETH ARDEN SALONS
B.
Viewing the facts in the light most favorable to the Dennys, a spe-
cific purpose of the Red Door Spa is to provide entertainment, and it
is therefore subject to the Public Accommodations Statute.8 The
majority’s conclusion to the contrary is anchored in its factual misap-
prehension of the Spa as a "salon" that "primarily offer[s] body main-
tenance services with tangential entertainment value." Ante at 7.
Although the word "salon" appears in the Spa’s title, and although the
Spa offers hair-styling services to the public, the record fails to sup-
port the proposition that the Spa’s singular purpose is the styling of
hair.
The name "Elizabeth Arden Red Door Salon and Spa" implies a
place where patrons come to relax and divert from their everyday
lives. Through the years, the word "spa" has taken on many mean-
ings, from the name of a Belgian town known for the curative proper-
ties of its mineral springs; to health baths containing hot, aerated
water; to resorts that offer health and beauty treatments; to the mod-
ern "day spas" that provide patrons a temporary escape from daily life
through massages, mud baths, steam treatments, and the like. See The
New Oxford American Dictionary 1624 (2d ed. 2005); The Oxford
English Dictionary Vol. XVI 86-87 (2d ed. 2004); see also, e.g., Gina
Damron, Manhood Makeover: More Men Finding Their Way to Spas,
Detroit Free Press, June 25, 2006, 2006 WLNR 11008673 (citing edi-
tor of Dayspa magazine for proposition that "some of the reasons why
men have become more interested in spa treatments . . . include . . .
the need for release from daily stresses"); Avignon Village "Ordinary
Life into Extraordinary" FAST FACTS, K.C. Star, June 18, 2006, at
K1 (describing "7,800-square-foot day spa and clubhouse, designed
for convenience and pampering"); Tim Golden, Jihadist or Victim:
Ex-Detainee Makes a Case, N.Y. Times, June 15, 2006, at A1 (quot-
8
The majority asserts that this dissent is not supported by any court
decisions holding that a "salon" is a "place of entertainment." See ante
at 8. I make two points: (1) the majority fails to point to a single decision
ruling that a facility selling massages and calling itself a "spa" is some-
thing other than a "place of entertainment"; and (2) the majority’s posi-
tion that the Spa is merely a "salon" finds no basis in this record, and it
cannot be established through insistence and repetition only.
DENNY v. ELIZABETH ARDEN SALONS 21
ing State Department public diplomacy official: "Guantanamo is not
a spa, but nor is it an inhumane torture camp"). It is entirely reason-
able to conclude that Elizabeth Arden, in naming the Red Door Spa,
used the term "spa" in its normal sense, and that a particular purpose
of the Spa is providing services that relax, amuse, and divert its
patrons.
More importantly, on this record, the "spa services" provided at the
Red Door Spa extend well beyond the mere styling of hair. According
to its website, the Spa offers "a complete menu of . . . spa services,"
including "massage and body treatments" and "much, much more."
J.A. 65 (emphasis added).9 Viewed in the proper light, the Spa thus
has the specific purpose of relaxing, amusing, and diverting its cus-
tomers, and the factual premise for the majority’s analysis — that the
Spa’s lone purpose is the styling of hair — has no foothold in the
record.
III.
With all respect for my distinguished colleagues, I dissent from
Part II of the majority opinion. I would reverse the district court’s
summary judgment award on the Public Accommodations Claim and
remand for further proceedings.
9
The majority deems factually incorrect the proposition that Elizabeth
Arden did things "other than styling hair and providing other beauty ser-
vices." Ante at 6. Yet, it offers no support for its view that the massages
offered by the Spa are necessarily "beauty," rather than relaxation, ser-
vices. See id. at 2, 6. Similarly, it fails to explain how the Spa is merely
a "salon," when Elizabeth Arden itself named it as the "Red Door Salon
and Spa," that offers "spa packages" entitled such things as "Miracle
Morning," "Red Door Rescue," and "Executive Escape," and which
include massages.