Lord Osunfarian Xodus v. Wackenhut Corporation

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3082
LORD OSUNFARIAN XODUS,
Plaintiff-Appellant,
v.
WACKENHUT CORPORATION,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:07-cv-01431—Donald E. Walter, Judge.
ARGUED APRIL 15, 2010—DECIDED AUGUST 27, 2010
Before BAUER, ROVNER and HAMILTON, Circuit Judges.
BAUER, Circuit Judge. Lord Osunfarian Xodus appeals
the district court’s judgment that Wackenhut did not
engage in religious discrimination when it refused to
hire him on account of his dreadlocked hairstyle. Specifi-
cally, Xodus disputes the court’s conclusion that he
never brought his religious beliefs to Wackenhut’s atten-
tion. We affirm.

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2 No. 09-3082
I. BACKGROUND
A dreadlock is a “ropelike strand of hair formed by
matting or braiding.” Merriam Webster’s Collegiate Dic-
tionary 352 (10th ed. 1986). Rastafarians believe dread-
locks symbolize a bond with God, citing this passage
in the Bible: “[N]o razor shall come upon his head; . . .
and he shall let the locks of hair of his head grow long.”
Numbers 6:5 (Revised Standard Version). Xodus, a
Rastafarian and Hebrew Israelite adherent, sued
Wackenhut, claiming it violated Title VII when it did not
hire him as a security guard because he would not cut
his dreadlocks.
A few days before Xodus interviewed for a job with
Wackenhut, Securitas, another security firm, fired him
because he refused to cut his hair to comply with the
company’s grooming policy. On July 7, 2004, the
morning of his Wackenhut interview, Xodus was
refused a security position at Allied Security because he
told them he would not cut his dreadlocks. Then he
went to Wackenhut where he interviewed with
manager Clarence McCuller.
Before trial, the district court denied Wackenhut’s
motion for summary judgment on liability, holding that
a genuine issue of fact existed as to whether Xodus in-
formed McCuller of his religious beliefs. But the court
granted the company’s motion for summary judgment
on damages, holding that Xodus failed to mitigate
his damages by exercising reasonable diligence to find
alternative employment, and that he failed to support
his request for punitive damages by establishing that
Wackenhut acted recklessly or with malice.

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No. 09-3082 3
During his two-day bench trial, Xodus had to prove that
he had a religious practice that conflicted with one of
Wackenhut’s employment requirements, that he brought
his religious practice to the company’s attention, and
that was the basis for Wackenhut’s refusal to hire. The
parties agreed with Judge Donald Walter of the Western
District of Louisiana, sitting by designation, that the only
fact at issue in the case was whether Xodus actually
brought to McCuller’s attention that his religious
beliefs precluded him from cutting his dreadlocks.
Xodus and McCuller testified differently about whether
religion was discussed during the interview. According
to Xodus, McCuller first told him about Wackenhut
and the position for which they were hiring, its pay
and benefits. McCuller then asked Xodus about his
prior work history, state certification, name change, role
at Securitas and the reason he was fired. Xodus testified
that he told McCuller Securitas fired him because he
wore dreadlocks and refused to cut them because of
his religion. McCuller told him that Wackenhut had a
similar grooming policy and that he would have to cut
his hair to gain employment. McCuller said he could
hire him to work security in a shipping warehouse, but
that none of those positions were available at that time.
According to Xodus, McCuller told him that Wackenhut
could not offer him a job at that time, shook his hand,
and walked him to the door.
McCuller testified that he noticed Xodus’ dreadlocks
as soon as the two met and he immediately initiated the
discussion of Wackenhut’s grooming policy. According

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4 No. 09-3082
to McCuller, he told Xodus he would not be hired unless
he cut his hair. Xodus then got up, began to walk out of
the room and said, “That’s why I’m suing Securitas . . . its
against my belief.” McCuller testified that he was not
aware of the Rastafarian religion and did not equate
Xodus’ use of the word “belief” with religion. He said
he told Xodus as he left that he could always reapply if
he “took out his braids.”
In addition to the witness testimony, Xodus introduced
a copy of an email McCuller sent to his boss, Robert Krol,
in December 2004, briefly describing the interview.
McCuller told Krol that he had immediately informed
Xodus about Wackenhut’s grooming policy, and when
Xodus said he would not cut his hair, McCuller says
he told Xodus he could not offer him employment
but that he was welcome to reapply if he took out the
braids. Xodus also placed into evidence a memo Krol
wrote to his superiors at Wackenhut summarizing his
investigation into the incident. The memo says Xodus
told McCuller that cutting his hair was “against my
belief” and then got up and left the office.
Wackenhut also introduced EEOC charges Xodus
signed and filed against Wackenhut and four other
security firms, in an attempt to impeach his testimony.
While four of the charges say that Xodus brought
his religious belief to the interviewer’s attention, only
the Wackenhut charge does not. The judge then pro-
hibited Xodus from testifying that he had told the
EEOC worker who typed the charge that he brought his
religion to McCuller’s attention but the worker, and not

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No. 09-3082 5
Xodus, had actually typed the charge document and
omitted the statement. The court also excluded the
EEOC worker’s notes, citing Novitsky v. American Con-
sulting Engineers, L.L.C., 196 F.3d 699, 701 (7th Cir. 1999),
as prohibiting discussion at trial of anything outside
the EEOC charge. Though Xodus’ counsel, by ques-
tioning his client about the EEOC visit, seemed to be
trying to use the notes as a prior consistent statement,
he never formally offered them as such and made no
offer of proof in response to the judge’s ruling.
At the end of the trial, the court found in favor of
Wackenhut, finding that Xodus failed to bring his
religious belief to its attention during the interview. The
opinion recounted the testimony and other evidence
and indicated that, faced with the two contradicting
stories, the judge found McCuller more credible than
Xodus; he found McCuller’s testimony internally con-
sistent and corroborated by both the email and the
memo. In light of the fact that his dreadlocks cost him
two security positions that week, the judge did not
believe Xodus’ testimony that the interview ended amica-
bly and that he did not get up and walk out of the in-
terview. The court cited the EEOC charges as additional
corroboration for McCuller’s version of events.
Xodus timely appealed.
II. DISCUSSION
We first address Xodus’ challenge to the finding that
Wackenhut was not aware of his religion. Because

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6 No. 09-3082
this aspect of the court’s decision is a factual finding,
we review it for clear error, with a great deal of deference
to the trial judge’s opportunity to judge the witnesses’
credibility. Fed. R. Civ. P. 52(a). See also Anderson v. City
of Bessemer City, 470 U.S. 564, 573 (1985). We will over-
turn the decision only if we “are left with a definite and
firm conviction that a mistake has been committed.”
Anderson, 470 U.S. at 573 (quoting United States v. U.S.
Gypsum Co., 333 U.S. 364, 395 (1948)); United States v.
Mendoza, 457 F.3d 726, 729 (7th Cir. 2006). As long as
the court’s finding represents a plausible view of the
evidence at trial, it cannot be clearly erroneous. See
Mendoza, 457 F.3d at 729.
In part to enable appellate review of these findings,
Rule 52(a) of the Federal Rules of Civil Procedure
requires the district court to “find the facts specially
and state its conclusions of law separately.” And while
it need not address each piece of evidence, the court
must include sufficient subsidiary facts so that we can
clearly understand the steps by which it reached its
ultimate conclusion. See Freeland v. Enodis Corp, 540 F.3d
721, 732 (7th Cir. 2008) (citing Andre v. Bendix Corp., 774
F.2d 786, 801 (7th Cir. 1985)).
Xodus claims that his use of the word “belief” and the
dreadlocks themselves sufficed to notify McCuller of the
religious nature of his hairstyle. But unlike race or sex,
a person’s religion is not always readily apparent. Reed
v. Great Lakes Cos., Inc., 330 F.3d 931, 936 (7th Cir. 2003).
“Even if he wears a religious symbol, such as a cross or
a yarmulka, this may not pinpoint his particular beliefs

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No. 09-3082 7
and observances; and anyway employers are not charged
with detailed knowledge of the beliefs and observances
associated with particular sects.” Id. An employee has
a duty to give fair notice of religious practices that
might interfere with his employment. Id.; Redmond v.
GAF Corp., 574 F.2d 897, 902 (7th Cir. 1978). On the other
hand, an employer cannot “shield itself from liability
by . . . intentionally remaining in the dark.” EEOC v.
Sears, Roebuck & Co., 417 F.3d 789, 804 (7th Cir. 2005).
McCuller testified that he was not familiar with the
Rastafarian faith and did not associate Xodus’ statement
of “belief” with religion. The district court concluded
that McCuller did not know that Xodus wore his
dreadlocks for religious reasons, and that finding is not
clearly erroneous. Nor does the fact that Xodus’ name
begins with the word “Lord” persuade us that McCuller
knew the dreadlocks were religious.
This case boils down to whether or not Xodus ex-
pressly brought his religious belief to McCuller’s atten-
tion. The court concluded that Xodus failed to do so
because he found McCuller’s testimony about the inter-
view more credible. And “when a trial judge’s finding
is based on his decision to credit the testimony of one
of two . . . facially plausible story that is not contra-
dicted by extrinsic evidence, that finding, if not in-
ternally inconsistent, can virtually never be clear error.”
See Anderson, 470 U.S. at 575.
The court’s decision to credit McCuller’s testimony
that Xodus never informed him that religious belief
required him to wear dreadlocks is both plausible from

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8 No. 09-3082
the evidence and sufficiently explained in the opinion.
While Xodus argues that McCuller’s testimony was
in “clear conflict” with McCuller’s email and Krol’s
memo regarding the interview, both documents in fact
corroborate McCuller’s trial testimony. Xodus places
significance on McCuller’s testimony that he told Xodus
he could reapply for the position, claiming that it is
unreasonable to believe that McCuller actually made
such a statement if the interview ended abruptly. We
fail to see the inconsistency; the statement might have
been McCuller’s effort to be polite when the interview
ended. The offer actually substantiates the finding that
McCuller was unaware that Xodus wore dreadlocks as
a religious observance.
That the court’s credibility determination rested on the
above subsidiary facts is clear from the opinion. Though
brief, the court’s explanation provides sufficient detail
to comply with Rule 52(a). See Bendix, 774 F.2d at 201. It
detailed both Xodus’ and McCuller’s testimony, high-
lighted the inconsistencies and explained which points
the court found significant. The opinion explains that
Xodus’ testimony about the events of the interview
was not credible in light of its duration, and that Xodus’
claim that the interview came to a normal conclusion
rather than abruptly was “contrary to normal human
conduct” given his prior testimony about his two en-
counters that week. The opinion contrasts this
with McCuller’s testimony and explains that McCuller’s
December 2004 email and Wackenhut’s internal memo
boosted McCuller’s credibility. In light of the require-

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No. 09-3082 9
ment that the court need only provide an adequate state-
ment of reasons, we find the explanation sufficient.
Xodus argues on appeal that the district court erred by
preventing him from testifying about his EEOC intake
questionnaire, in which he says he informed McCuller
of his religious beliefs, as evidence of prior consistent
statements to bolster his credibility. The case upon
which the district court relied, Novitsky v. American Con-
sulting Engineers, L.L.C., 196 F.3d 699 (7th Cir. 1999),
rejected an attempt to use an intake questionnaire to
expand the legal scope of EEOC charges. See id. at 702; id.
at 703 (Rovner, J., concurring). The case does not prevent
all evidentiary uses of EEOC questionnaires for other
purposes, such as prior consistent statements when
the plaintiff’s credibility is disputed. We find no
reversible error here, however, because the issue
was not preserved in the district court. We have
reviewed the trial transcript carefully and have not
found a clear offer of the evidence as a prior consistent
statement, nor a clear offer of proof needed to preserve
the arguable error. See Fed. R. Evid. 103(a)(2). In addi-
tion, we are satisfied that even if there was an error,
it would have been harmless in light of the district
court’s larger explanation of its credibility finding.
Finally, Xodus claims the district court erred when it
granted summary judgment to Wackenhut on the issue
of whether Xodus mitigated his damages and whether
he was entitled to punitive damages. Because we affirm
the district court’s finding that Wackenhut did not dis-
criminate, both these issues are moot.

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10 No. 09-3082
III. CONCLUSION
The district court’s conclusion that Wackenhut did not
discriminate against Xodus was not implausible based
on the evidence. We AFFIRM.
8-27-10

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