Cloutier v. Costco Wholesale

• Decision Date: 30 March 2004
• Docket Number: No. CIV.A. 02-30138-MAP.,CIV.A. 02-30138-MAP.
• Citation: 311 F.Supp.2d 190
• Parties: Kimberly M. CLOUTIER, Plaintiff v. COSTCO WHOLESALE, Defendant
• Court: U.S. District Court — District of Massachusetts

Page 190

311 F.Supp.2d 190

Kimberly M. CLOUTIER, Plaintiff v. COSTCO WHOLESALE, Defendant

No. CIV.A. 02-30138-MAP.

United States District Court, D. Massachusetts.

March 30, 2004.

Lynn A. Kappelman, Seyfarth Shaw, Boston, for Costco Wholesale, Defendant.

Krista G. Pratt, Seyfarth Shaw, Boston, for Costco Wholesale, Defendant.

Michael O. Shea, Law Office of Michael O. Shea, Springfield, for Kimberly M. Cloutier, Plaintiff, Pro se.

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

PONSOR, District Judge.

I. INTRODUCTION

Plaintiff Kimberly Cloutier is a member of the Church of Body Modification, a national organization of some thousand members that emphasizes, as part of its religious doctrine, spiritual growth through body modification.¹ Defendant Costco, plaintiff's former employer, terminated Cloutier after she violated Costco's dress code by insisting on wearing facial piercings while working as a cashier and by refusing an accommodation (originally suggested by Cloutier herself) that would have allowed her to continue wearing her piercings in a less noticeable manner.

Cloutier has sued Costco, claiming that her termination violated 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 this case, even viewed in the light most favorable to the plaintiff, will not support a claim under either statute.²

For the reasons set forth below, the defendant's motion will be allowed. Before summarizing the court's reasoning, however, it is important to emphasize one point. This decision is not intended in any way to offer an opinion on the substance or validity of the belief system of the Church of Body Modification. While its tenets may be viewed by some as unconventional, or even bizarre, the respect afforded by our laws to individual conscience, particularly in regard to religious beliefs, puts any deconstruction of the Church's doctrine beyond the purview of the court. Indeed, as the Supreme Court has noted, "[Individuals] may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs." United States v. Ballard, 322 U.S. 78, 86, 64 S.Ct. 882, 88 L.Ed. 1148 (1944).

As will be seen, even if the belief system of the Church of Body Modification is accepted on its own terms, the undisputed facts of record demonstrate that the accommodation offered by Costco, and ultimately rejected by the plaintiff, was reasonable as a matter of law. Given this, the controlling authorities require entry 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 the burden of demonstrating to the court that the evidence does not support the nonmoving party's case. Sands v. Ridefilm Corp., 212 F.3d 657, 661 (1st Cir.2000). "After such a showing, the `burden shifts to the nonmoving party, with respect to each issue on which he has the burden of proof, to demonstrate that a trier of fact reasonably could find in his favor.'" Id. (citation omitted). In performing this analysis, the court must examine the facts in the light most favorable to the nonmoving party and draw all reasonable inferences in her favor. Id. If there is sufficient evidence favoring the nonmoving party for a trier of fact to return a verdict for that party, the court must deny the motion for summary judgment.

III. FACTUAL BACKGROUND

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

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

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

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

At some point in January of 2001, Cloutier learned of the Church of Body Modification ("CBM") from friends and acquaintances. The CBM is a congregation whose goal is to "achieve acceptance in this given society so that [members of the Church] may celebrate [their] bodies with body modification." Docket. No. 37, App. D. According to the mission statement on the CBM website, members of the CBM believe that the practice of body modification and body manipulation strengthens the bond between mind, body, and soul, thus ensuring that adherents live as spiritually complete and healthy individuals. See www.uscobm.com. Among the practices of members of the CBM are body modifications such as piercing, tattooing, branding, transdermal⁵ or subcutaneous⁶ implants, and body manipulation, such as flesh hook suspensions and pulling. At one time, the CBM listed as one of its tenets that members should "seek to be confident models in learning, teaching and displaying body modification."⁷ Docket No. 37, App. D. Although it does not appear that CBM doctrine demands the practice, Cloutier has personally interpreted this tenet as requiring her to display her body modifications at all times.

After reviewing the CBM's website, Cloutier decided to join. Costco disputes the timing of Cloutier's membership in the CBM. It obtained from the CBM a copy of Cloutier's application form, which is dated June 27, 2001. However, during her deposition, Cloutier testified that she actually joined the CBM three months earlier, in March 2001. She stated that she attempted to submit her membership application on-line, but due to a computer glitch the application was not processed. Cloutier further testified that she had a number of phone conversations with someone from the CBM about the status of her application. Eventually, after Cloutier resubmitted her application in June 2001, her membership was formally processed, and she received her membership card that July.

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

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

The following day, June 26, 2001, Cloutier and Theriaque returned to work still wearing their facial jewelry. Again, Callaghan notified the women of the dress code policy against facial jewelry. This time, Cloutier herself presented Callaghan with information about the CBM from its website. Both Cloutier and Theriaque claimed that wearing their facial jewelry constituted a practice required by their religion. After reviewing the material, Callaghan consulted with her supervisor, Andy Mulik. Mulik ordered Cloutier and Theriaque to remove the jewelry or leave work. Both Cloutier and Theriaque went home. Cloutier filed a complaint with the EEOC the following day.

On June 29, 2001, her next scheduled shift, Cloutier went to work wearing her facial jewelry. She was again ordered to remove her jewelry or...