Cloutier v. Costco Wholesale Corp.

Cloutier v. Costco Wholesale Corp.

Opinion

 [*128]  LIPEZ, Circuit Judge. Kimberly Cloutier alleges that her employer, Costco Wholesale Corp. (Costco), failed to offer her a reasonable accommodation after she alerted it to a conflict between the "no facial jewelry" provision of its dress code and her religious practice as a member of the Church of Body Modification. She argues that this failure amounts to religious discrimination in violation of Title VII, 42 U.S.C. § 2000e-2(a), and the corresponding Massachusetts statute, Mass. Gen. Laws ch. 151B, § 4(1A). The [**2]  district court granted summary judgment for Costco, concluding that Costco reasonably accommodated Cloutier by offering to reinstate her if she either covered her facial piercing with a band-aid or replaced it with a clear retainer. We affirm the grant of summary judgment, but on a different basis. See  Estades-Negroni v. Assocs. Corp. of North Am., 377 F.3d 58, 62 (1st Cir. 2004) ] ("We may affirm . . . on any grounds supported by the record."). We hold that Costco had no duty to accommodate Cloutier because it could not do so without undue hardship.

We set forth the relevant facts from the summary judgment record, viewing them in the light most favorable to Cloutier.  Diaz v. City of Fitchburg, 176 F.3d 560, 561 (1st Cir. 1999) ("Because this is an appeal from a grant of summary judgment to defendants, we recite the facts in the light most favorable to plaintiffs."). Kimberly Cloutier began working at Costco's West Springfield, Massachusetts store in July 1997. Before her first day of work, Cloutier received a copy of the Costco employment agreement, which included the employee dress code. When she was hired, Cloutier had multiple earrings [**3]  and four tattoos, but no facial piercings.

Cloutier moved from her position as a front-end assistant ¹ to the deli department in September 1997. In 1998, Costco revised its dress code to prohibit food handlers, including deli employees, from wearing any jewelry. Cloutier's supervisor instructed her to remove her earrings pursuant to the revised code, but Cloutier refused. Instead, she requested to transfer to a front-end position where she would be permitted to continue wearing her jewelry. Cloutier did not indicate at the time that her insistence on wearing her earrings was based on a religious or spiritual belief.

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