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Cloutier v. Costco Wholesale Corp.

Cloutier v. Costco Wholesale Corp.

United States Court of Appeals for the First Circuit

December 1, 2004, Decided

No. 04-1475

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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390 F.3d 126 *; 2004 U.S. App. LEXIS 24763 **; 94 Fair Empl. Prac. Cas. (BNA) 1476; 86 Empl. Prac. Dec. (CCH) P41,884

KIMBERLY M. CLOUTIER, Plaintiff, Appellant, v. COSTCO WHOLESALE CORP., Defendant, Appellee.

Subsequent History: US Supreme Court certiorari denied by Cloutier v. Costco Wholesale Corp., 125 S. Ct. 2940, 162 L. Ed. 2d 873, 2005 U.S. LEXIS 4923 (U.S., June 20, 2005)

Prior History:  [**1]  APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Michael A. Ponsor, U.S. District Judge.

Cloutier v. Costco Wholesale, 311 F. Supp. 2d 190, 2004 U.S. Dist. LEXIS 5128 (D. Mass., 2004)

Disposition: Affirmed.

CORE TERMS

accommodation, undue hardship, facial, piercings, jewelry, wear, reasonable accommodation, dress code, summary judgment, employees, exemption, display, religious, religion, religious practice, district court, appearance, Courts, religious discrimination, termination, retainer, no-facial-jewelry, modification, prima facie case, religious belief, return to work, sincerely, band-aid, customer, light most favorable

Civil Procedure, Appeals, Standards of Review, General Overview, Business & Corporate Compliance, Labor & Employment Law, Discrimination, Accommodation, Labor & Employment Law, Title VII Discrimination, Religious Discrimination, Defenses, Reasonable Accommodation & Undue Hardship, Constitutional Law, Fundamental Freedoms, Freedom of Religion, Free Exercise of Religion, Employment Relationships, At Will Employment, Definition of Employees, Scope & Definitions, Employees & Independent Contractors, Summary Judgment, Entitlement as Matter of Law, Appropriateness, Genuine Disputes, Materiality of Facts, De Novo Review, Summary Judgment Review, Standards of Review, Covered Employees & Employers, Burdens of Proof, Burden Shifting, Employee Burdens, Remedies, Affirmative & Equitable Relief, Criminal Law & Procedure, Crimes Against Persons, Disruptive Conduct, Employers, Bona Fide Occupational Qualifications, Religion Defined, Discriminatory Employment Practices, Enforcement, Supporting Materials, Affidavits