CLOUTIER v. COSTCO WHOLESALE

311 F.Supp.2d 190 (2004) | Cited 3 times | D. Massachusetts | March 30, 2004

MEMORANDUM AND ORDER REGARDING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S MOTION TO CERTIFY A QUESTION OF LAW (Docket Nos. 35 & 39) I. INTRODUCTION

Plaintiff Kimberley Cloutier is a member of the Church of BodyModification, a national organization of some thousand members thatemphasizes, as part of its religious doctrine, spiritual growth throughbody modification.1 Defendant Costco, plaintiff's former employer,terminated Cloutier after she violated Costco's dress code by insistingon wearing facial piercings while working as a cashier and by refusing anaccommodation (originally suggested by Cloutier herself) that would haveallowed her to continue wearing her piercings in a less noticeablemanner.

Cloutier has sued Costco, claiming that her terminationPage 2violated her rights under Title VII, 42 U.S.C. § 2000e-2(a),and under chapter 151B, § 4(1A) of the Massachusetts General Laws.Costco. has moved for summary judgment claiming that the facts of thiscase, even viewed in the light most favorable to the plaintiff, will notsupport a claim under either statute.2

For the reasons set forth below, the defendant's motion will beallowed. Before summarizing the court's reasoning, however, it isimportant to emphasize one point. This decision is not intended in anyway to offer an opinion on the substance or validity of the belief systemof the Church of Body Modification. While its tenets may be viewed bysome as unconventional, or even bizarre, the respect afforded by our lawsto individual conscience, particularly in regard to religious beliefs,puts any deconstruction of the Church's doctrine beyond the purview ofthe court. Indeed, as the Supreme Court has noted, "[Individuals] maybelieve what they cannot prove. They may not be put to the proof of theirreligious doctrines or beliefs." United States v. Ballard,322 U.S. 78, 86 (1944).

As will be seen, even if the belief system of the Church of BodyModification is accepted on its own terms, the undisputed facts of recorddemonstrate that the accommodation offered by Costco, and ultimatelyrejected by the plaintiff, was reasonablePage 3as a matter of law. Given this, the controlling authorities requireentry of judgment in favor of the defendant.3

II. STANDARD OF REVIEW

Summary judgment is proper where the moving party, here the defendant,has demonstrated that there are no material facts in dispute and that,therefore, it is entitled to a judgment as a matter of law. Dasey v.Anderson, 304 F.3d 148, 153 (1st Cir. 2002). The defendant bears theburden of demonstrating to the court that the evidence does not supportthe nonmoving party's case. Sands v. Ridefilm Corp.,212 F.3d 657,661 (1st Cir. 2000). "After such a showing, the `burden shifts tothe nonmoving party, with respect to each issue on which he has theburden of proof, to demonstrate that a trier of fact reasonably couldfind in his favor.'" Id. (citation omitted). In performing thisanalysis, the court must examine the facts in the light most favorable tothe nonmoving party and draw all reasonable inferences in her favor.Id. If there is sufficient evidence favoring the nonmovingparty for a trier of fact to return a verdict for that party, the courtmust deny the motion for summary judgment.Page 4

III. FACTUAL BACKGROUND

Viewing the case in the light most favorable to the plaintiff, a jurymight find the following facts.

In July of 1997, Costco. hired Cloutier as a front end assistant forits West Springfield, Massachusetts store. At the time, Cloutier hadeleven ear piercings, but no facial piercings. Cloutier also had fourtattoos on her upper arms, though these were concealed under theclothing she wore during her interview and for the duration of heremployment with Costco. Cloutier did not notify Costco. during herinterview or upon beginning her employment of her religious beliefsor practices. Shortly before her first day of work, Cloutier receivedher first copy of the Costco Wholesale Handbook, also referred to asthe employment agreement, containing the employee dress code.

In September 1997, two months after hiring her, Costco. moved Cloutierto the deli department, where part of her responsibilities includedhandling food. In 1998, during Cloutier's time in the deli department,Costco. revised its dress code policy and the provisions of itsemployment agreement to prohibit food handlers from wearing jewelry.Cloutier's supervisor at the deli, Laura Ostrander, told Cloutier thatshe would have to comply with the company's policy and remove herearrings and other jewelry. Cloutier replied that she would not takethem out. She neither mentioned her membership in any church or anypersonal religious beliefs, nor requested anPage 5accommodation for her jewelry wearing. However, because she did notwant to remove her earrings, Cloutier sought a transfer out of the delidepartment. Costco. accommodated this request for transfer.

In June of 1998, Cloutier returned to the position of front endassistant. Around this time, Cloutier got her eyebrow pierced. She hasnot removed her eyebrow ring since. Cloutier continued working as a frontend assistant until July 2000, when she was promoted to cashier.Throughout this two-year period, Cloutier engaged in the practices oftattooing, piercing, cutting, and scarification,4 though not as partof any sectarian religious practice or belief. Nonetheless, Cloutiertestified in her deposition that she engaged in these practices becausethey had meaning to her.

At some point in January of 2001, Cloutier learned of the Church ofBody Modification ("CBM") from friends and acquaintances. The CBM is acongregation whose goal is to "achieve acceptance in this given societyso that [members of the Church] may celebrate [their] bodies with bodymodification." Docket. No. 37, App. D. According to the mission statementon the CBM website, members of the CBM believe that the practice of bodymodification and body manipulation strengthens the bond between mind,body, and soul, thus ensuring that adherents livePage 6as spiritually complete and healthy individuals. Seewww.uscobm.com. Among the practices of members of the CBM are bodymodifications such as piercing, tattooing, branding, transdermal5 orsubcutaneous6 implants, and body manipulation, such as flesh hooksuspensions and pulling. At one time, the CBM listed as one of its tenetsthat members should "seek to be confident models in learning, teachingand displaying body modification."7 Docket No. 37, App. D. Althoughit does not appear that CBM doctrine demands the practice, Cloutier haspersonally interpreted this tenet as requiring her to display her bodymodifications at all times.

After reviewing the CBM's website, Cloutier decided to join. Costcodisputes the timing of Cloutier's membership in the CBM. It obtained fromthe CBM a copy of Cloutier's application form, which is dated June 27,2001. However, during her deposition, Cloutier testified that sheactually joined the CBM three months earlier, in March 2001. She statedthat she attempted to submit her membership application on-line, but dueto a computer glitch the application was not processed. Cloutier furthertestifiedPage 7that she had a number of phone conversations with someone from theCBM about the status of her application. Eventually, after Cloutierresubmitted her application in June 2001, her membership was formallyprocessed, and she received her membership card that July.

In March of 2001, Costco. again revised its employment agreement, andon March 27, 2001, Cloutier received a copy of Costco's new dress codepolicy, which forbade the wearing of any facial jewelry.8 Cloutiertestified at her deposition that she first became aware of the new dresscode policy shortly after receiving a copy in March of 2001. She did not,however, request a religious accommodation for the wearing of her facialjewelry at that time but simply continued to wear her facial jewelrydespite the dress code policy. Costco. did not begin to enforce thefacial jewelry policy until June.

On June 25, 2001, Cloutier and her co-worker, Jennifer Theriaquereported to work wearing their eyebrow rings. Two supervisors, ToddCunningham and Michele Callaghan, called Cloutier and Theriaque into anoffice and advised them that their facial piercings would have to beremoved in order for the two women to continue to work for Costco.Cloutier did not sayPage 8anything to her supervisors about her religion at that time.Theriaque, on the other hand, informed Cunningham and Callaghan of herown membership in the CBM, as well as Cloutier's. Both Theriaque andCloutier returned to work after this discussion.

The following day, June 26, 2001, Cloutier and Theriaque returned towork still wearing their facial jewelry. Again, Callaghan notified thewomen of the dress code policy against facial jewelry. This time,Cloutier herself presented Callaghan with information about the CBM fromits website. Both Cloutier and Theriaque claimed that wearing theirfacial jewelry constituted a practice required by their religion. Afterreviewing the material, Callaghan consulted with her supervisor, AndyMulik. Mulik ordered Cloutier and Theriaque to remove the jewelry orleave work. Both Cloutier and Theriaque went home. Cloutier filed acomplaint with the EEOC the following day.

On June 29, 2001, her next scheduled shift, Cloutier went to workwearing her facial jewelry. She was again ordered to remove her jewelryor leave work. This time, Cloutier met with the store manager, MarkSchevchuck, about her EEOC complaint and once more produced the CBMdocuments about her religion. In addition, Cloutier offered to wear aband-aid over her jewelry instead of removing it. Schevchuck replied thatthis was not acceptable. Cloutier went back home.

Theriaque also returned to work on June 29, 2001, wearing her facialjewelry. When approached by her supervisors,Page 9Theriaque inquired about wearing a retainer in place of herjewelry. The retainer, an unobtrusive clear plastic spacer, would preventTheriaque's piercing from healing and closing, and at the same time wouldbe far less noticeable than her usual facial jewelry.

Cloutier and Costco. dispute what occurred next. It is Costco'sposition that it immediately accepted this compromise, and Theriaque waspermitted to return to work with a retainer in the place of jewelry inher eyebrow. It is Cloutier's position that Theriaque returned to workwithout her eyebrow jewelry but, somehow, kept hidden the fact that shewas wearing a retainer or fishing wire in place of the jewelry. Cloutierbelieves that Theriaque's subterfuge continued for three or four weeksuntil Costco capitulated and allowed Theriaque to wear a retainer.

Somewhat inconsistently, Cloutier also testified that sometime duringthe week of July 2, 2001, she learned of Theriaque and Costco'sresolution of the piercing controversy. In other words, it is undisputedthat Cloutier was aware within about one week of the genesis of thedispute that she could, in fact, return to work if she wore a retainerinstead of her facial jewelry.

Nevertheless, Cloutier did not report for any of her scheduled shiftsafter July 1, 2001. Cloutier testified at her deposition that Schevchucktold her not to return to work until he found out how Costco. was goingto respond to her EEOCPage 10complaint. Accordingly, she waited at home for a phone call fromSchevchuck, all the while under the impression that her absences fromwork would not count against her attendance record.

On July 14, 2001, Cloutier received her termination notice. Costco tookthe position that the CBM was not a religion as the term is defined instate and federal anti-discrimination laws. Moreover, even if the CBMwere a religion, Costco. did not believe that CBM doctrine requiredCloutier to wear her facial jewelry at all times. Consequently,in Costco's view, Cloutier's absences from work due to violations of thedress code were unexcused absences. Since its employment agreementauthorized termination after three or more unexcused absences, Costcofired Cloutier. As noted, Cloutier contends that she was told to wait athome for a call to inform her of Costco's decision — a call shenever received. Her first notice of Costco's final position on herreligious practice, she says, was the termination notice.

Approximately three weeks later, on August 10, 2001, during the EEOCnegotiation between Costco. and Cloutier, Costco. presented Cloutier withan unconditional offer to return to work if she complied with the dresscode and wore either a band-aid over her facial jewelry or a retainer inplace of the jewelry. This offer was memorialized and reiterated in anAugust 29, 2001 letter from Costco. to Cloutier. Notably, this band-aidaccommodation was the same compromise that Cloutier had herself suggestedin June. The August 29th letter requested thatPage 11Cloutier respond to Schevchuck by September 6, 2001. Costcocontends that Cloutier never responded to its offer to accommodate.Cloutier testified that she placed a call to Schevchuck on September 6,2001, but he was not available. Cloutier maintains that he never returnedher phone call, and she never tried to reach him again.

In any event, Cloutier now argues that wearing a band-aid over herfacial piercing, or replacing her jewelry during working hours with aclear plastic retainer, would violate her personal religious convictions.Cloutier avers that it is her sincere belief that her religion, the CBM,requires that she display her facial jewelry at alltimes. Short of excusing her from the dress code policy entirely,Cloutier does not believe there is any accommodation that Costco. couldoffer that would satisfy the tenets of her religion. Costco. asserts thatallowing Cloutier to be exempted from its neutral dress code policy wouldbe an undue hardship on its business in that an exemption would undermineCostco's interest in presenting a professional appearance to itscustomers.

IV. DISCUSSION

Plaintiff brings both a federal claim and a state claim for religiousdiscrimination. Because the analysis under Title VII and chapter 151Bdiffers somewhat, the court will discuss each statute separately below.

A. Title VII ClaimPage 12

Title VII of the Civil Rights act of 1964, as amended in 1972,prohibits employers from discriminating against an employee based on thatemployee's religion. 42 U.S.C. § 2000e-2(a). The term "religion," asused within the provisions of Title VII, encompasses "all aspects ofreligious observance and practice, as well as belief, unless an employerdemonstrates that he is unable to reasonably accommodate to anemployee's . . . religious observance or practice without undue hardshipon the conduct of the employer's business." Id. §2000e(j). Thus, where an employee's bona fide religious belief orpractice conflicts with an employment requirement, Title VII requiresthe employer "to accommodate [the belief or practice], within reasonablelimits." E.E.O.C. v. Union Independiente de la Autoridad deAcueductos y Alcantarillados de P.R., 279 F.3d 49, 55 (1st Cir.2002).

The First Circuit applies a two-part framework, developed in otherTitle VII contexts, to analyze a Title VII claim for religiousdiscrimination. Union Independiente, 279 F.3d at 55. First, theplaintiff must "establish a prima facie case of religiousdiscrimination based on a failure to accommodate."9Page 13Union Independiente, 279 F.3d at 55. The plaintiff mustshow that "(1) a bona fide religious practice conflicts with anemployment requirement, (2) he or she brought the practice to the[employer's] attention, and (3) the religious practice was the basis forthe adverse employment decision." Id. (internal quotations andcitations omitted). Second, if the plaintiff establishes a primafacie case, then the burden shifts to the employer "to show that itmade a reasonable accommodation of the religious practice or show thatany accommodation would result in undue hardship." Id.

The first element of the plaintiff's prima facie caserequires a demonstration that the plaintiff's belief or practice isreligious and that it is sincerely held. Id. at 56.At the summary judgment stage, the defendant will ordinarily face adifficult task in challenging the contention that the plaintiff's beliefis religious, no matter how unconventional the asserted religious beliefmay be. The First Circuit has stated that Title VII "leaves little roomfor a party to challenge the religious nature of an employee's professedbeliefs." Id.

The difficulty for an employer on this point derives not only from theelusiveness of the term "religious" but also from the fact that theemployee's religious beliefs need not bePage 14espoused by a formal religion or conventionally organized church.As the EEOC's guidelines on religious discrimination recognize, "[t]hefact that no religious group espouses such beliefs or the fact that thereligious group to which the individual professes to belong may notaccept such belief will not determine whether the belief is a religiousbelief of the employee." 29 C.F.R. § 1605.1.

Moreover, the Supreme Court has recognized that Title VII's protectionsare not limited to beliefs and practices that courts perceive as"acceptable, logical, consistent, or comprehensible to others."Thomas v. Review Bd. of Ind. Employment Sec. Div.,450 U.S. 707, 714 (1981). Indeed, it is well recognized that courts are poorarbiters of questions regarding what is religious and what is not.Daniels v. City of Arlington, Tex., 246 F.3d 500, 505 (5th Cir.2001) (stating that "it is improper for a court to assess what activitiesare mandated by religious belief").

Within this broad framework, courts have grappled somewhat awkwardlywith the question of what makes a particular belief "religious." Onedistrict court has taken the approach that while "the court may not lookto whether the [employee's] religion mandates or requires the practice inquestion, the court may nonetheless note whether there is any connectionbetween the [employee's] religion and the asserted belief or practice."Page 15Vetter v. Farmland Indus., Inc., 884 F. Supp. 1287, 1307(N.D. Iowa 1995).

Other courts have seemed to suggest that the existence of this"connection" is for the individual, and not the judge, to determine.Where some defendants have been unsuccessful in challenging an employee'sbelief on the ground that it is not part of a bona fide religion, otherdefendants have been successful in proving, even at the summary judgmentstage, that the belief or practice as asserted by the plaintiff is notmandated by the religion to which the employee supposedly adheres.Hussein v. The Waldorf-Astoria, 134 F. Supp.2d 591, 597(S.D.N.Y. 2001) (granting employer's summary judgment claim after findingthat evidence did not support employee's claim of a bona fide religiousbelief). Contra Vetter, 884 F. Supp. at 1307, 1313 (concludingthat there was a sufficient "connection" between the plaintiff's assertedbelief and his religion and denying defendant's motion for summaryjudgment); Lambert v. Condor Mfg., Inc., 768 F. Supp. 600, 602(E.D. Mich. 1991) (denying defendant's motion for summary judgmentbecause there existed a question of fact regarding whether plaintiff'sopposition to nude pictures of women was "religious").

Courts have noted the obvious fact that Title VII does not affordprotection for "what amounts to a `purely personal preference.'"Union Independiente, 279 F.3d at 56 (citationPage 16omitted); see Tiano v. Dillard Dep't Stores, Inc.,139 F.3d 679, 683 (9th Cir. 1998) (finding that the plaintiff failed to provethat her religious belief mandated that she embark on a pilgrimage duringthe precise time frame demanded). Again, however, in any close case acourt is bound to confront the near impossibility (at least at thesummary judgment stage) of distinguishing between a plaintiff's stronglyfelt personal preference and that same plaintiff's self-styled"religious" belief.

No one would disagree that aspects of dress or appearance are oftenstrongly felt. Despite this, Title VII surely cannot be invoked to permitan employee to apotheosize a dress or grooming preference, merely uponhis or her own say-so. It would seem equally clear that the submission ofan affidavit describing a custom of dress or grooming as "religious"should not automatically innoculate a complaint from summary judgment andentitle an employee to an inevitable jury trial. Yet the difficulty inmaking this analysis appears to have convinced some courts simply towithhold scrutiny where a plaintiff asserts that a belief or practice is"religious." Heller v. EBB Auto Co., 8 F.3d 1433, 1438 (9thCir. 1993) (stating that Title VII protects more than the "practicesspecifically mandated by an employee's religion" and that courts are notto determine what is or is not a religious activity).Page 17

While the "religious" basis of a challenged belief or practice istricky to challenge as a matter of law, the sincerity of apractitioner's purported belief (once the belief is accepted as"religious") is virtually unassailable in the Rule 56 context. The FirstCircuit has stated explicitly that the sincerity of an employee'sreligious belief "ordinarily should be reserved `for the factfinder attrial, not for the court at summary judgment.'" UnionIndependiente, 279 F.3d at 56; Vetter v. Farmland Indus.,Inc., 120 F.3d 749, 751 (8th Cir. 1997) (stating that "a finding onthe [element of sincerity] generally will depend on the factfinder'sassessment of the employee's credibility"). But see, Bushouse v.Local Union 2209, United Auto., Aerospace & Agric. Implement Workersof Am., 164 F. Supp.2d 1066, 1075 (N.D. Ind. 2001)(holding that acourt may consider whether a particular belief is in fact "religious" andsincerely held at the summary judgment stage).

Assuming a plaintiff satisfies the first criterion, the second elementof a prima facie case requires that employees notify theiremployers of their religious beliefs or practices. UnionIndependiente, 279 F.3d at 55; See Chalmers v. Tulon Co. ofRichmond, 101 F.3d 1012, 1019 (4th Cir. 1996). The parties here donot dispute that Cloutier provided adequate notice.

The final element of a prima facie case requires theplaintiff to show that her religious practice was the basis forPage 18the adverse employment decision. The defendant here has notproffered a reason for discharging Cloutier other than her absences fromwork resulting from her refusal to remove her facial piercing. Though thedefendant vigorously disputes the characterization of Cloutier's facialpiercing as a "religious" practice, it does not dispute that the facialpiercing was the reason for the adverse employment decision.

Once a plaintiff establishes a prima facie case of religiousdiscrimination based on a failure to accommodate, the burden shifts tothe employer to show that it offered the employee a reasonableaccommodation of her religious practice or that any accommodation wouldresult in undue hardship for the employer. See UnionIndependiente, 279 F.3d at 55; 42 U.S.C. § 2000e(j). The statutedoes not define the term "reasonable accommodation." Likewise, thestatute's legislative history and EEOC guidelines provide no guidance indetermining the extent of an employer's accommodation obligation.Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 69 (1986);Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 75 (1977)("[T]he employer's statutory obligation to make reasonable accommodationfor the religious observances of its employees, short of incurring anundue hardship, is clear, but the reach of that obligation has never beenspelled out by Congress or by EEOC guidelines.").Page 19

Courts facing the issue of whether an accommodation is "reasonable"have fashioned some rules or guidelines for the inquiry. The SeventhCircuit has held that an employer's accommodation is not reasonable ifthe accommodation "does not eliminate the conflict between the employmentrequirement and the religious practice." E.E.O.C. v. Ilona ofHungary, Inc., 97 F.3d 204, 211 (7th Cir. 1996). The Fifth Circuithas suggested that a determination of reasonableness should focus on thecost to the employer, while also trying to balance the needs of theemployer with the needs of the employee. E.E.O.C. v. Universal Mfg.Corp., 914 F.2d 71, 72-73 & n.3 (5th Cir. 1990) ("The range ofacceptable accommodation under Title VII moderates the conflictinginterests of both the employee and the employer: (1) it protects theemployee by requiring that the accommodation offered be `reasonable;' and(2) it protects the employer by not requiring any accommodation whichwould impose an `undue hardship.'"). Not surprisingly, the courts ofappeals have observed that the question of the reasonableness of anaccommodation is to be determined on a case by case basis. Beadle v.Hillsborough County Sheriff's Dep't, 29 F.3d 589, 592 (11th Cir.1994); U.S. v. City of Albuguerque, 545 F.2d 110, 114 (10thCir. 1976). In a typical case, the issue of "reasonableness" may be leftto the fact finder. Universal Mfg., 914 F.2d at 73.Page 20

Once an employer offers a reasonable accommodation, its obligationsunder Title VII are satisfied. Philbrook, 479 U.S. at 68. TitleVII does not require that an accommodation be absolute. UniversalMfg., 914 F.2d at 73. In other words, the accommodation offered bythe employer does not have to be the best accommodation possible, and theemployer does not have to demonstrate that alternative accommodationswould be worse or impose an undue hardship. Wriqht v. Runyon,2 F.3d 214, 217 (7th Cir. 1993) (citing Philbrook, 479 U.S. at68).

It is important to underline that the search for a reasonableaccommodation goes both ways. Although the employer is required underTitle VII to accommodate an employee's religious beliefs, the employeehas a duty to cooperate with the employer's good faith efforts toaccommodate. Daniels v. City of Arlington, Tex., 246 F.3d 500,506 & n.30 (5th Cir. 2001); see Philbrook, 479 U.S. at 69(recognizing that the search for a reasonable accommodation requires"bilateral cooperation" between the employer and the employee);Beadle, 29 F.3d at 593 (stating that an employee has a "duty tomake a good faith attempt to accommodate his religious needs throughmeans offered by the employer"); Brener v. Diagnostic Ctr.Hosp., 671 F.2d 141, 145-46 (5th Cir. 1982) (upholding judgment foremployer where the employee failed to cooperate with the measuressuggested by his employer to accommodate his religious practice);Chrysler Corp.Page 21v. Mann, 561 F.2d 1282, 1286 (8th Cir. 1977) (statingthat where an employee does not "cooperate with his employer in itsconciliatory efforts, he may forgo the right to have his beliefsaccommodated").

Finally, if the employer declines to offer an accommodation, theemployer then must "demonstrate that any accommodation would have causedit undue hardship." Ilona of Hungary, 97 F.3d at 211;Draper v. U.S. Pipe & Foundry Co., 527 F.2d 515, 520 (6thCir. 1975) (stating that employers must demonstrate actual undue hardshipbecause courts are "somewhat skeptical of hypothetical hardships")."Undue hardship" has been defined by the Supreme Court as anythinggreater than a de minimis cost to the employer in accommodatingthe religious beliefs of an employee. Hardison, 432 U.S. at 84.Again, in a typical case, the question of what constitutes undue hardshipwill usually be left to the finder of fact. Universal Mfg., 914F.2d at 74.

Applying these principles to the pending motion, the weakness of theevidence supporting a prima facie case is fairly striking.Accepting the CBM as a bona fide religion — a point that defendanthotly disputes — the plaintiff appears to agree, and the court'sown examination of the materials available seems to confirm, that the CBMin no way requires a display of facial piercings at alltimes. The requirement that she display herPage 22piercings, openly and always, represents the plaintiff's personalinterpretation of the stringency of her beliefs.

Of course, the fact that the CBM does not mandate the practice that theplaintiff insists on is not, by itself, fatal to Cloutier's claim.See Union Independiente, 279 F.3d at 56; Seshadri v.Kasraian, 130 F.3d 798, 800 (7th Cir. 1997). If Cloutier's beliefthat she must constantly display her body modifications is herreligious belief, then it would appear she is entitled toaccommodation pursuant to Title VII. Here again, however, the evidence ofrecord fails to support Cloutier's position. As noted above, when shefirst brought her religious practice to the attention of Costco, sheherself offered the accommodation of her wearing a band-aid over herfacial piercing. The outset of this lawsuit witnessed the first occasionwhen Cloutier took the position that any concealment of her piercingswould violate her religious scruples.10

All these facts suggest strongly that, while Cloutier may have a strongpersonal preference to display her facial piercings at alltimes — her preference does not constitute a sincerely heldreligious belief.Page 23

It is not necessary for the court to wrestle with this troublingquestion, however, since Costco's offer of accommodation was manifestlyreasonable as a matter of law. The temporary covering of plaintiff'sfacial piercings during working hours impinges on plaintiff's religiousscruples no more than the wearing of a blouse, which covers plaintiff'stattoos. The alternative of a clear plastic retainer does not evenrequire plaintiff to cover her piercings. Neither of these alternativeaccommodations will compel plaintiff to violate any of the establishedtenets of the CBM. Significantly, Cloutier herself suggested anaccommodation along these lines in June of 2001.

Costco. has a legitimate interest in presenting a workforce to itscustomers that is, at least in Costco's eyes, reasonably professional inappearance. The defendant's proffered accommodation reasonably respectedthe plaintiff's expressed religious beliefs while protecting thisinterest. In contrast, the plaintiff, after backing off from her originalproposal, has offered no accommodation whatsoever, insisting instead thatthe defendant may not limit her piercings in any way, either in nature ornumber, without compelling her to disregard her religious scruples andthereby violating Title VII.

Title VII does not demand that this reasonable accommodation befavored, or even accepted, by plaintiff. So long as the accommodationreasonably balances the employee's observance ofPage 24her religion with the employer's legitimate interest, it must bedeemed acceptable. See Philbrook, 479 U.S. at 70.

Courts have repeatedly recognized dress and grooming requirements asbona fide occupational qualifications. Daniels, 246 F.3d at 506(finding that an evangelical Christian police officer suffered noviolation of Title VII when the police chief declined to allow him towear a cross on his uniform and where the officer failed to fulfill hisduty to cooperate in working out a reasonable accommodation);Hussein, 134 F. Supp.2d at 598 (involving a no-beard policy incatering); E.E.O.C. v. Sambo's of Ga., Inc., 530 F. Supp. 86,91 (N.D. Ga. 1981) (involving a clean-shaven policy in restaurant).11Enforcing these kinds of dress restrictions is not discriminatory "aslong as the employer's grooming requirement is not directed at areligion." Hussein, 134 F. Supp.2d at 599. There is noevidence here that Costco's dress policy was directed at any religion.

In sum, accepting the doubtful proposition that the record wouldsupport a prima facie case here, no reasonable jury couldPage 25conclude that Costco's proposal to Cloutier was anything other thana reasonable accommodation.12 Hence, the court will allow thedefendant's summary judgment motion as to this count.

B. Chapter 151B

Chapter 151B, § 4(1A) forbids an employer from imposing on anindividual as a condition of employment any terms or conditions,"compliance with which would require such individual to violate, orforego the practice of, his creed or religion as required by that creedor religion." Where there is a conflict between an employee's creed orreligion and an employment requirement, the statute directs that theemployer "make reasonable accommodation to the religious needs" of theemployee. Id. Reasonable accommodation is defined as "suchaccommodation to an employee's . . . religious observance or practice asshall not cause undue hardship in the conduct of the employer'sbusiness." Id. The statute assigns to the employee the burdenof proof as to the required practice of his creed or religion and to theemployer the burden of proof to show undue hardship.

As originally construed, the language of the statute "limit[ed] theapplication of the statute to persons whose practices and beliefs mirrorthose required by the dogma ofPage 26established religions." Pielech v. Massasoit Greyhound,Inc., 423 Mass. 534, 539-40 (1996). Consequently, the SupremeJudicial Court of Massachusetts ("SJC") held that chapter 151B, §4(1A) violated the establishment clause of the First Amendment becausethe protections of the statute preferred some religions over others andpromoted excessive governmental entanglement with religion. Id.at 540. Specifically, the SJC held that statute in its earlier form"effectively compell[ed] courts, in cases where the dogma of anestablished church or religion is disputed, to ascertain the requirementsof the religion at issue. . . . These are not proper matters for thecourts to decide." Id. at 542.

In response to Pielech, the Massachusetts Legislature amendedch. 151B, § 4(1A).13 St.1997, c. 2, § 2 (effective February27, 1997). The amendment added language to define "creed or religion" as"any sincerely held religious beliefs, without regard to whether suchbeliefs are approved, espoused, prescribed or required by an establishedchurch or other religious institution or organization." Id.Thus, the protected religious practice need not be one endorsed by anyorganizedPage 27church or sect; it need only be a sincerely heldreligious belief. Opinion of the Justices, 423 Mass. 1244, 1246(1996) ("A sincerely held religious belief would be protected by §4(1A) without regard to whether that belief was one approved or requiredby any established church or other religious institution ororganization."). The amended statute, nonetheless, still places on theemployee the burden of proof as to the required practice of the religion.

Even before the amendment, the language of the statute itself"essentially outlines a three-part inquiry in any case involvingallegations of religion-based discrimination." N.Y. & Mass.Motor Serv., Inc. v. Mass. Comm'n Against Discrimination, 401 Mass. 566,575-76 (1988). First, the employee must prove that "the employerrequired the [employee] to violate a religious practice which is requiredby the [employee's sincerely held religious belief]." See id.;chapter 151B, § 4(1A). As the language of chapter 151B, § 4(1A)states, it is of no consequence whether the employee's belief is"approved, espoused, prescribed or required by an established church orother religious institution or organization." There is little room for anemployer to challenge the religious basis or mandate of an employee'sbelief. Sagar v. Sagar, 57 Mass. App. Ct. 71, 74 (2003)(stating that a court "may not examine the truth behind a person'sreligious beliefs"). On the other hand, "[i]nquiry asPage 28to whether an employee's belief is sincere is constitutionallyappropriate." Opinion of the Justices, 423 Mass, at 1246;Saqar, 57 Mass. App. Ct. at 74.

The second stage of the inquiry requires that an employee who needstime off to observe her Sabbath or other holy day must give at least tendays notice to her employer. N.Y. & Mass. Motor Serv., 401Mass, at 576; Ch. 151B, § 4(1A). This stage is clearly inapplicableto this case.

The final stage of the three-part inquiry involves the employer'sobligation to accommodate the employee's religious needs. N.Y. &Mass. Motor Serv., 401 Mass, at 576; Ch. 151B, § 4(1A).Reasonable accommodation is defined as such an accommodation to theemployee's practice "as shall not cause undue hardship in the conduct ofthe employer's business." Ch. 151B, § 4(1A). The employer bears theburden of proof to show undue hardship, which is defined in the statuteas including circumstances where accommodation would result in theemployer's inability "to provide services which are required by and incompliance with all federal and state laws" or "where the health andsafety of the public would be unduly compromised by the absence of [the]employee." Ch. 151B, § 4(1A). Upon a showing of undue hardship, "theemployer is not obliged to accommodate the employee's religiousobservance or practice." Opinion of the Justices, 428 Mass, at1247.Page 29

Regrettably, there is little case law addressing chapter 151B, §4(1A). Thus, where there are gaps in the interpretation or application ofthe statute, this court will turn to case law interpreting Title VII,whose protections mirror those of chapter 151B, § 4(1A).Wheatley v. Am. Tel. & Tel. Co., 418 Mass. 394, 397 (1994)(stating that it is the practice of the Massachusetts courts "to applyFederal case law construing the Federal anti-discrimination statutes ininterpreting G. L. c. 151B").

As with plaintiff's Title VII claim, her chapter 151B claim must fail.Arguably, the language of chapter 151B casts a broader net than Title VIIin covering purely personal beliefs that may be entitled to protectionfrom discrimination. Chapter 151B specifically states that whether aformal religious organization espouses or requires such belief isirrelevant.

Whatever minor differences may exist between the federal and state lawson the issue of belief, however, the two statutes appear to treat thequestion of reasonable accommodation identically. For purposes of 151B,the court must therefore conclude that Costco's offer of accommodationwas reasonable as a matter of law. Cloutier's preferred arrangement,unlimited permission to wear her piercings at any time and in any manner,was obviously no accommodation at all. Accordingly, the courtPage 30will allow the defendant's motion for summary judgment as to thiscount.14

V. CONCLUSION

Because the law supporting summary judgment in favor of defendant isreasonably clear, no need exists to certify a question to the SJC. Forthe reasons set forth above, defendant's Motion for Summary Judgment ishereby ALLOWED, and the plaintiff's Motion to Certify a Question of Lawis hereby DENIED. The clerk will enter judgment for the defendant; thecase may now be closed.

1. Docket No. 41, App. I & J.

2. Earlier, the court allowed defendant's motion to dismiss as toplaintiff's third count, a claim under Mass. Gen. Laws chapter 12, §111. Docket No. 8.

3. As discussion below will reveal, the evidence of record alsosubstantially supports an alternate ground for summary judgment: thatplaintiff's position regarding her piercings reflected not sincerely held"religious" belief, but merely strong personal preference. Because entryof summary judgment is mandated based on defendant's offer of areasonable accommodation, however, it is not necessary to base thecourt's ruling on this more uncertain legal foundation.

4. Scarification involves wounding oneself and removing the scabs soas to leave a more prominent scar. Docket 41, App. C.

5. An transdermal implant is a piece of metal that goes underneaththe skin and comes through the skin. Docket No. 41, App. J.

6. A subcutaneous implant is stainless steel inserted under theskin. Docket No. 41, App. J.

7. This tenet was listed in the CBM materials that Cloutier providedto Costco. in June of 2001.

8. The new policy stated that "[a]ppearance and perception play a keyrole in member service. Our goal is to be dressed in professional attirethat is appropriate to our business at all times. . . . No visiblefacial or tongue jewelry (earrings permitted)." Docket No. 37, App.B.

9. In addition to asserting a religious discrimination claim basedon failure to accommodate, plaintiffs may also proceed under a disparatetreatment theory — alleging, for example, that the practices of onereligion are being accommodated but not the practices of another.See Peterson v. Hewlett Packard Co., 358 F.3d 599, 603 (9thCir. 2004); Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012,1017 (4th Cir. 1996). No such alternate theory has been offered here. Inher memorandum, plaintiff does characterize her termination as an act of"retaliation" against her based on her religious belief, but this claimhas not been pled separately and, in the context of this case, would fallwithin the recognized "failure to accommodate" analysis in anyevent.

10. It is perhaps significant that plaintiff does not insist thatall her body modifications, for example her tattoos, be visibleat all times.

11. In other contexts, courts have not hesitated to uphold anemployer's right to promote an appearance standard among its employees.Cf. Woods v. Safeway Stores, Inc., 420 F. Supp. 35, 42 (E.D. Va.1976) (holding that employer's no-beard policy served a legitimatebusiness purpose and did not discriminate against a black employee whosuffered from a skin condition that was severely aggravated by shaving);Willinqham v. Macon Tel. Publ'q Co., 507 F.2d 1084, 1088 (5thCir. 1975) (holding that employer's no long hair on males policy did notdiscriminate on the basis of gender).

12. Because the court's decision is based on the existence of areasonable accommodation, it is unnecessary to address the defendant'sassertion that undue hardship would result from exempting the plaintifffrom Costco's dress code.

13. Before passing the bill, the legislature submitted questions tothe SJC regarding the constitutionality of the proposed amendment. One ofthe questions asked if the law as amended would violate the establishmentclause of the First Amendment, to which the SJC responded in thenegative. Opinion of the Justices, 423 Mass. 1244, 1246(1996).

14. In rendering this decision the court is aware that the recordwould support the conclusion that plaintiff was terminated on July 14,2001, whereas Costco's offer of reasonable accommodation was not madeuntil approximately four weeks later, on August 10, 2001. This delay doesnot justify denial of the motion for summary judgment. First, the recordis unclear whether Costco's offer included the possibility of pay forsome or all of the four weeks. Second, the delay in transmitting theoffer emerged as much from a failure of cooperation by plaintiff as fromany intransigence on the part of the defendant. Finally, the courtassumes that plaintiff would not be trying this case with damages limitedto four weeks' pay.Page 1

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