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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Miller v. Safeway, Inc. (11/02/2007) sp-6183

Miller v. Safeway, Inc. (11/02/2007) sp-6183, 170 P3d 655

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,


) Supreme Court No. S- 12331
) Superior Court No.
v. ) 3KN-01-00436 CI
SAFEWAY, INC., and ) O P I N I O N
Appellees. ) No. 6183 November 2, 2007
          Appeal  from the Superior Court of the  State
          of  Alaska,  Third Judicial District,  Kenai,
          Charles T. Huguelet, Judge.

          Appearances:  John E. Havelock,  Law  Offices
          of   John   E.   Havelock,   Anchorage,   for
          Appellant.  Cynthia L. Ducey, Eric Ringsmuth,
          Delaney    Wiles,   Inc.,   Anchorage,    for

          Before:    Fabe,  Chief  Justice,   Matthews,
          Bryner,  and Carpeneti, Justices.  [Eastaugh,
          Justice, not participating.]

          MATTHEWS, Justice.

          Frank  Miller claims that Safeway breached the  implied
covenant  of  good faith and fair dealing when it terminated  his
employment based on his failure to comply with Safeways  grooming
policy  by  not  cutting his hair.  Neither the  grooming  policy
itself  nor  Safeways  actions with respect  to  the  termination
breached  the implied covenant.  We therefore affirm the superior
courts grant of summary judgment to Safeway.
          This  is the second time this case has come before this
court.   In the first opinion, Miller v. Safeway (Miller I),  the
facts were set out as follows:
               Frank Miller is an Athabascan Indian and
          a member of the Kenaitze tribe.  Miller holds
          shares in Kenai Native Association, Inc.  and
          Cook  Inlet  Region, Inc., and is  an  Alaska
          Native  under federal law.  Miller  has  worn
          his  hair shoulder length or longer  all  his
          life,  with  the exception of the  period  of
          time  he  served  in the United  States  Navy
          between  1961  and  1966.  In  an  affidavit,
          Miller explained his reasons for growing long
          hair: I personally like to have my hair  long
          and  feel  it is an expression of my  natural
          personality, my spirituality and my ties with
          Alaska  Native  tradition.  Miller  maintains
          that  his  mother,  who was also  Athabascan,
          raised   Millers  awareness  of  his   Native
          culture and tradition and passed down to  him
          the Native practice of growing hair long.
               On  July  29, 1998, Miller was hired  to
          work as a sales clerk for a Carrs supermarket
          in  the  Oaken Keg, the section of the  store
          that  markets liquor.  Miller indicates  that
          the  Oaken  Keg  knew that he was  an  Alaska
          Native   due  to  his  appearance   and   his
          statement  that he is American Indian/Alaskan
          Native on employee ethnicity records gathered
          by Safeway in August 1998.  The store manager
          who  hired Miller informed him that he  would
          be  allowed to keep his hair long so long  as
          he  kept  it  tied back, notwithstanding  the
          printed dress code for Carrs employees.   The
          dress  code policy recites, under  a  section
          entitled General Appearances:
               Well     groomed      and
               conservatively     styled
               a.  Mens hair: No  longer
               than  collar  length.  No
               Mustaches  acceptable  if
               neatly  groomed  and  not
               curved  over  lower  lip.
               Sideburns   should    not
               extend   below  the   ear
               b.  Womens  hair:  Neatly
               The   introduction  to  the  Oaken   Keg
          policies    also   included   the   following
          statement   regarding   Millers   terms    of
               When  you begin with  the
               Oaken Keg, you will be on
               a   probationary  status.
               At  the end of (90) days,
               upon           successful
               completion     of     the
               probationary period,  you
               will  become a  permanent
               Miller  was not advised that he  was  in
          violation of the dress code or that  he  must
          cut  his  hair until February of  2001,  more
          than two years and seven months after he  was
          hired.   Joe  Price, Millers supervisor,  did
          not  initially  make any comments  to  Miller
          regarding  hair  length.   Safeway  purchased
          Carrs  in  April 1999, and Miller attended  a
          Safeway orientation in June 1999 in which the
          Safeway  dress code policy for male employees
          reiterated the previous Carrs policy that the
          hair  length  of  male employees  should  not
          exceed  the  collar-line.   Although  Millers
          hair  was noticeably long and fell below  the
          collar  line,  none  of  the  supervisors  or
          trainers  at  the  orientation  directed  any
          comments  to  Miller  concerning  his   hair.
          Sometime  after the orientation,  Miller  and
          Price  had  a  conversation in  which  Miller
          recalls that Price remarked, unless they  say
          something to me, you are not required to  get
          a haircut.
               In January 2001, a year and a half after
          Safeway  acquired Carrs, Miller learned  that
          the  Oaken  Keg  store where  he  worked  was
          scheduled to close the next month.   In  late
          January  2001 all store employees,  including
          Miller, were informed by letter or memorandum
          that  they  would have a job  in  either  the
          Soldotna  or  Kenai  Carrs  stores.    Miller
          states  that  he expected that  he  would  be
          transferred  to  one of these  other  stores.
          According to Miller, he received regular  job
          evaluations  in  which  his  performance  was
          judged good to excellent in every respect.
               Close to a week before the store closed,
          Price  informed  Miller  that,  according  to
          Safeway manager Mick Galic, if Miller  wanted
          to transfer to another store he would have to
          cut  his  hair.   Miller told Price  that  he
          would not cut his hair.  As a result, Safeway
          terminated Miller.[1]
          Miller filed a class action complaint on June 8,  2001,
alleging  that  Safeway  violated his  constitutional  rights  to
privacy  and  freedom of speech.2  He also claimed  that  Safeway
violated  the Alaska Constitution, AS 18.80.220, and AS 22.10.020
by  discriminating  on  the basis of creed  and  religion.3   The
superior court granted Safeway summary judgment on all of Millers
claims  and denied as untimely a request by Miller to  amend  his
complaint.4   This court affirmed the superior  courts  grant  of
summary  judgment.5   We held that Millers constitutional  claims
failed  due  to  lack of state action.6  We also  concluded  that
Miller failed to demonstrate discrimination on the basis of race,
sex, or religion for the following reasons:
          Miller  failed to present evidence  that  the
          hair length policy was discriminatory or that
          he  was treated less favorably than similarly
          qualified employees on the basis of  race  or
          gender,  and he failed to provide  notice  to
          his  employer that his religious beliefs  and
          practices   conflicted  with  Safeways   hair
          length policy.[7]
But, we also reverse[d] the trial courts denial of Millers motion
to   amend   his  complaint  to  add  claims  alleging   wrongful
termination and breach of the implied covenant of good faith  and
fair dealing.8
          After  Miller amended his complaint, the superior court
granted  summary  judgment to Safeway on the  additional  claims.
Miller appeals this grant of summary judgment.
          A  grant of summary judgment is reviewed de novo.9   We
will affirm
          if  the  record contains no genuine issue  of
          material   fact  and  the  moving  party   is
          entitled  to  judgment as a  matter  of  law.
          When   considering  a  motion   for   summary
          judgment, all reasonable inferences  of  fact
          from  the  proffered evidence must  be  drawn
          against the moving party and in favor of  the
          non-moving party.[10]
          This  court has held that at-will employment  contracts
in  Alaska  contain an implied covenant of good  faith  and  fair
dealing.11   An  employer  can breach  the  implied  covenant  as
               The covenant can be breached objectively
          or  subjectively.  The objective prong of the
          covenant  is breached when an employer  fails
          to  act  in a manner that a reasonable person
          would  consider fair, which includes treating
               similarly situated employees disparately,
          terminating   employees  on  unconstitutional
          grounds,   and   terminating   employees   in
          violation  of public policy.  The  subjective
          prong  of  the covenant is breached  when  an
          employer   is  motivated  by  the   goal   of
          depriving  the employee of a benefit  of  the
          contract.  The purpose of the covenant is  to
          effectuate the reasonable expectations of the
          parties, not to alter or to add terms to  the
     A.   Safeway  Did  Not  Breach the Objective  Prong  of  the
          Implied Covenant of Good Faith and Fair Dealing.
          An employer breaches the objective prong of the implied
covenant by failing to act in a manner which a reasonable  person
would  regard  as fair.13  There are two ways that Safeway  could
have  breached  the  objective prong  of  the  implied  covenant.
First,  the  objective  prong  of the  implied  covenant  can  be
breached through a termination that violates public policy.14  In
Luedtke  v. Nabors (Luedtke I) this court established that  there
is a public policy supporting the protection of employee privacy,
and  that [v]iolation of that policy by an employer may  rise  to
the  level of a breach of the implied covenant of good faith  and
fair  dealing.15  If Safeways grooming policy violates the public
policy  supporting the privacy interests of its  employees,  then
Safeway may have breached the implied covenant.
          Second, even if a policy passes muster, an employer can
breach  the  implied covenant by the manner in which it  enforces
the  policy.16  Therefore, even if Safeways grooming policy  does
not breach the implied covenant, Safeways actions with respect to
Millers termination may have breached it.
          1.   Safeways  grooming  policy  does  not  breach  the
               implied covenant by violating public policy.
          In  Luedtke I this court articulated the public  policy
supporting  the  protection  of employee  privacy17  as  follows:
[T]here  is  a sphere of activity in every persons life  that  is
closed to scrutiny by others.  The boundaries of that sphere  are
determined by balancing a persons right to privacy against  other
public   policies,  such  as  the  health,  safety,  rights   and
privileges  of  others. 18  The court upheld a drilling  companys
policy of testing employees urine for drugs because it determined
that the public policy supporting employee privacy was outweighed
by  the public policy supporting the protection of the health and
safety of other workers.19
          Here,  Miller  claims a right to wear  his  hair  long.
Justice  Rabinowitz emphasized the importance of a persons  right
to  wear  ones own hair as he or she wishes in Breese  v.  Smith,
which  held  that it was unconstitutional for public  schools  to
regulate hairstyles:
               Hairstyles  have  been  the  subject  of
          great  variety and individual taste and  have
          traditionally been left to personal decision;
               they are the manifestations of our diverse
          and  numerous individual personalities.   The
          United  States  of  America,  and  Alaska  in
          particular,  reflect  a pluralistic  society,
          grounded  upon  such  basic  values  as   the
          preservation  of  maximum individual  choice,
          protection   of   minority  sentiments,   and
          appreciation  for divergent lifestyles.   The
          spectre  of  governmental  control   of   the
          physical  appearances  of  private  citizens,
          young  and  old, is antithetical  to  a  free
          society,  contrary  to  our  notions   of   a
          government  of limited powers, and  repugnant
          to  the concept of personal liberty.  It  has
          been  observed  that [there] are  few  things
          more   personal  than  ones  body   and   its
          appearance, and there could be few laws  more
          destructive  of the notion that  there  is  a
          range  of  decisionmaking  within  which  the
          individual   is  autonomous   than   a   rule
          regulating  physical makeup.   Whatever  else
          liberty  may  mean  as  used  in  article  I,
          section 1 of the Alaska constitution, we hold
          that  the  term  at  least  encompasses   the
          fundamental personal right of students in our
          public schools to select their own individual
          hair      styles     without     governmental
Although  the Breese court relied on the right to liberty  rather
than the right to privacy,21 regardless of how it is framed Breese
establishes  that  Miller has a right to  wear  his  hair  as  he
chooses.   But, as the superior court noted, Safeway also  has  a
right  and privilege as a private company to operate its business
in a reasonable manner of its choosing.  The superior court noted
that  Luedtke  I required it to balance the privacy interests  of
employees against the rights and privileges of others.  It  found
that,  while Miller had a constitutionally protected liberty  and
privacy  interest in his personal choice to wear his hair long[,]
.  .  .  Safeways  legitimate interest  in  its  grooming  policy
outweighs Millers interest in working at Safeway with long  hair.
We  hold  that  the  superior court correctly weighed  these  two
          The  superior  court relied on several cases  upholding
grooming policies in the face of constitutional and civil  rights
challenges.  Federal cases dealing with grooming policy  are  not
directly   on   point,  since  they  generally   address   either
constitutional  claims  against state  or  federal  employers  or
statutory claims that grooming policies of private employers  are
discriminatory.   However, such cases support the  idea  that  an
employer   has  managerial  discretion  when  setting  reasonable
standards for the appearance of its employees.  In Willingham  v.
Macon  Telegraph  Publishing Co. the  Fifth  Circuit  found  that
grooming  policies  are  more closely related  to  the  employers
          choice of how to run his business than to discrimination or
constitutional  claims.23  Similarly, in Brown  v.  D.C.  Transit
System,  Inc.,  the D.C. Circuit stated that the  requirement  of
hirsute  conformity  .  .  . [is] simply  [a]  non-discriminatory
condition[] of employment falling within the ambit of  managerial
decision to promote the best interests of its business.24
          Some  of  the  hair cases also note that  the  employee
generally  has  a  choice  in where to seek  employment:  If  the
employee objects to the grooming code he has the right to  reject
it  by looking elsewhere for employment, or alternatively he  may
choose to subordinate his preference by accepting the code  along
with the job.25  The superior court emphasized this point as well,
noting  that Safeways policy only affects Miller because he  made
the personal choice to work for Safeway.
          While  the  federal cases are not directly  applicable,
the  fact  that  employer grooming policies have  generally  been
upheld  in  the  face of statutory and constitutional  challenges
suggests that it would be inappropriate to upset such policies in
the context of the implied covenant, which has been described  as
a  narrow,  judicially created exception to at-will employment.26
Almost all of the federal cases dealing with statutory challenges
to a private employers grooming policy have upheld those policies
as  non-discriminatory.27  The majority of federal cases  dealing
with constitutional claims against the grooming policies of state
and federal employers have upheld the policies as constitutional.28
If  grooming  policies generally pass muster in  the  context  of
state action and discrimination,29 they should also survive claims
dealing with the implied covenant of good faith and fair dealing.
          We hold that Safeways hair policy does not represent  a
per  se  breach  of the implied covenant of good faith  and  fair
          2.   Safeways  actions with respect to  enforcement  of
               the policy did not breach the implied covenant.
          An employer breaches the objective prong of the implied
covenant of good faith and fair dealing if it fails to act  in  a
manner  that  a reasonable person would consider fair.30   Miller
argues  that  Safeway violated the implied covenant  by  treating
Miller  differently  than  other  employees.   He  suggests  that
Safeway  normally made inquiries into the reasons  why  employees
did  not comply with the grooming policy but did not do so in his
case.   But Miller does not present any evidence indicating  that
Safeway  had  a  practice  of affirmatively  inquiring  into  the
reasons  for  not  complying  with  its  policies.  Rather,   the
testimony he cites discusses Safeways practices once an  employee
has asked for an accommodation.31  Miller concedes that he did not
disclose  his reasons for not cutting his hair, but he  seems  to
argue that Safeway should have inquired as to his reasons anyway.
          We  find  that  a reasonable person would believe  that
Safeway  acted fairly given its lack of information about Millers
reasons  for wanting to keep his hair long.  Requiring  employees
to  at  least articulate their concerns before holding  employers
liable  under  the implied covenant imposes a minimal  burden  on
employees that does not strike us as unreasonable.32  On the other
          hand, it seems unduly burdensome to require employers to inquire
into  their employees unexpressed reasons for non-compliance with
store policies.
           Miller  also seems to argue that Safeway violated  the
implied  covenant  by failing to inform him that  there  was  the
possibility of a religious exemption.  In Miller I we noted  that
Title  VII requires employees to inform their employer  of  their
religious  belief  before  they  can  recover.33   It  would   be
inappropriate to establish an end run around this requirement  by
holding  that  even though there was no religious  discrimination
because of the employees non-disclosure, there might be a  breach
of  the implied covenant because the employer did not inform  the
employee of the possibility of accommodation.
          Finally,  Miller points to Safeways policy of  using  a
system of progressive discipline and suggests that it should have
used  that  rather than summarily firing him.  But  he  does  not
point  to  any  evidence showing that the system  of  progressive
discipline  applied to employees such as himself.   Testimony  by
Safeway management indicated that they decided whether or not  to
use  progressive discipline for at-will employees on  a  case-by-
case  basis.   Miller  has  not  shown  that  Safeway  created  a
reasonable  expectation on his part that a progressive discipline
system  would  be  used.  Rather, the first page  of  the  Retail
Policies  and  Procedures, which includes  the  grooming  policy,
states  that  [v]iolation  of these regulations  and  rules  will
result in discipline up to and including termination.
          Based  on these undisputed facts, we hold that  Safeway
did  not  breach the objective prong of the implied  covenant  of
good faith and fair dealing.
     B.   Safeway  Did  Not Breach the Subjective  Prong  of  the
          Implied Covenant of Good Faith and Fair Dealing.
          The  subjective prong of the covenant is breached  when
an employer is motivated by the goal of depriving the employee of
a  benefit of the contract.34  The court found that [t]here is no
evidence to suggest that Safeway terminated Miller to save  money
or  deprive him of a contract benefit.  Safeway terminated Miller
because he refused to comply with the grooming policy.  We agree.
None  of Millers arguments ever allege that Safeway was motivated
by  a  bad  faith  desire to save money or deprive  Miller  of  a
contract benefit.35  Summary judgment was appropriate with respect
to this prong as well.

          Reasonable grooming policies do not represent a per  se
breach  of  the objective prong of the implied covenant  of  good
faith  and fair dealing.  While employees have important  liberty
and  privacy  rights connected to their choice of  hairstyle,  an
employer  also has a prerogative to present itself to the  public
as  it  sees  fit.   The superior courts determination  that  the
employers right outweighs that of the employee in this context is
correct.  Nor did Safeways enforcement of its policy violate  the
implied covenant, since its conduct was not shown to be unfair or
          motivated by bad faith.  Therefore, we AFFIRM the superior courts
grant of summary judgment to Safeway.
     1     Miller v. Safeway, 102 P.3d 282, 285-86 (Alaska  2004)
(Miller I).

     2    Id. at 286.

     3    Id.

     4    Id. at 287.

     5    Id. at 285.

     6    Id.

     7    Id.

     8    Id.

     9    DeNardo v. Bax, 147 P.3d 672, 676 (Alaska 2006).

     10    Id. at 676-77.

     11    Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123,
1130 (Alaska 1989) (Luedtke I) (citing Mitford v. de LaSala,  666
P.2d  1000,  1007  (Alaska 1983)).  In addition  to  the  implied
covenant  of good faith and fair dealing, Miller also included  a
claim   of  wrongful  termination  in  his  complaint.   Wrongful
termination  occurs  when the employer  breached  a  contract  or
committed  a  tort in connection with the employees  termination.
Charles  v.  Interior Regl Hous. Auth., 55 P.3d  57,  59  (Alaska
2002).   Since  Miller  does not claim that Safeway  committed  a
tort,  and  his only contract claim is that Safeway breached  the
implied  covenant  of good faith and fair dealing,  his  wrongful
termination claim relies entirely on the implied covenant claim.

     12     Witt  v.  State, Dept of Corr., 75  P.3d  1030,  1034
(Alaska 2003) (citations omitted).

     13    Luedtke v. Nabors Alaska Drilling, Inc., 834 P.2d 1220,
1224 (Alaska 1992) (Luedtke II).

     14    Luedtke I, 768 P.2d at 1130 (citing Knight v. Am. Guard
& Alert, Inc., 714 P.2d 788 (Alaska 1986)).

     15    Id.

     16    See, e.g., id. at 1136, 1137 (holding that even though
the  policy of drug testing itself did not violate the  objective
prong  of the implied covenant, the employer had to conduct  drug
tests  at  a  time reasonably contemporaneous with the  employees
work  time, and the employer had to give the employee  notice  of
the adoption of a drug testing program).

     17    Id. at 1130.

     18     Id. at 1135-36 (quoting Ravin v. State, 537 P.2d 494,
504 (Alaska 1975)).

     19    Id. at 1136.

     20     Breese  v.  Smith, 501 P.2d 159,  169  (Alaska  1972)
(quotations and citations omitted).

     21     The amendment establishing a right to privacy in  the
Alaska  Constitution had not yet gone into  effect  at  the  time
Breese  was decided.  As the Breese court noted, however, federal
courts  linked  the  right to wear ones hair as  one  pleases  to
several  constitutional  rights,  including  the  right  to  free
expression  under  the  first  amendment,  the  right  to   equal
protection under the fifth amendment, retained rights  under  the
ninth  amendment,  and the right to privacy  emanating  from  the
penumbra of the Bill of Rights.  Id. at 165-66.

     22     Our  decision is based on the facts of this case  and
should   not   be   construed  as   a   broad   ruling   on   the
constitutionality of private employers grooming policies.  As  we
have previously noted, there is considerable controversy over the
disparate  impact  some  grooming policies  may  have  on  racial
minorities and women.  See Miller I, 102 P.3d at 292 n.42.

     23    507 F.2d 1084, 1091 (5th Cir. 1975).

     24     523 F.2d 725, 728 (D.C. Cir. 1975); see also Fagan v.
Natl Cash Register Co., 481 F.2d 1115, 1124-25 (D.C. Cir. 1973).

     25    Willingham, 507 F.2d at 1091; see also, e.g., Thomas v.
Firestone  Tire  & Rubber Co., 392 F. Supp. 373, 375  (N.D.  Tex.
1975);  Page Airways of Albany, Inc. v. N.Y. State Div. of  Human
Rights, 50 A.D.2d 83, 84-85 (N.Y. App. Div. 1975).

     26     E.g.,  Brodsky v. Hercules, Inc., 966 F. Supp.  1337,
1351  (D.  Del. 1997); Johnson v. Carpenter Tech. Corp.,  723  F.
Supp. 180, 186 (D. Conn. 1989).

     27     See, e.g., Tavora v. N.Y. Mercantile Exch., 101  F.3d
907, 908 (2d Cir. 1996) ([R]equiring short hair on men and not on
women  does  not violate Title VII.  Every court of appeals  that
has  considered  this  issue has agreed.)  (quotations  omitted);
Earwood  v. Contl Se. Lines, Inc., 539 F.2d 1349, 1350 (4th  Cir.
1976)  (holding that a private employers grooming policy did  not
constitute  sex  discrimination under the  Civil  Rights  Act  of
1964); Willingham, 507 F.2d at 1086-87 (same); Fagan, 481 F.2d at
1116  (same); Smith v. Delta Air Lines, Inc., 486 F.2d  512,  514
(5th Cir. 1973) (holding that a private employers grooming policy
did  not constitute racial discrimination under the Civil  Rights
Act of 1964); Wofford v. Safeway Stores, Inc., 78 F.R.D. 460, 470
(N.D. Cal. 1978) (same) (citations omitted).

     28     See,  e.g., Kelley v. Johnson, 425 U.S.  238,  247-48
(1976) (holding that a police departments grooming policy did not
violate  the  liberty  rights  of the  policemen,  assuming  such
liberty  rights existed); Lowman v. Davies, 704 F.2d  1044,  1046
(8th  Cir. 1983) (holding that the state did not violate  a  park
naturalists liberty rights by requiring that his hair be  short);
Domico v. Rapides Parish Sch. Bd., 675 F.2d 100, 101-02 (5th Cir.
1982)  (holding that a school boards grooming policy  prohibiting
beards  did  not violate employees liberty rights, but expressing
hope   that  the  public,  with  growing  thousands  of  entirely
responsible adult members of the community wearing all  sorts  of
hair  and face trims, has come to its senses and does not see  in
such variations the seeds of violence and revolution) (quotations
omitted);  Kamerling  v. OHagan, 512 F.2d 443,  445-46  (2d  Cir.
1975) (holding that the grooming policy for New York City firemen
did  not  violate their constitutional rights of free expression,
due  process  and  equal  protection); Marshall  v.  District  of
Columbia,  392  F. Supp. 1012, 1015 (D.D.C. 1975)  (holding  that
police  departments  grooming policy did not infringe  plaintiffs
free  exercise  rights).  But see, e.g., Black v. Rizzo,  360  F.
Supp.  648,  653  (E.D. Pa. 1973) (holding that fire  departments
grooming  policy  violated the liberty rights of employees  since
the   only   valid  interest  advanced  by  the   defendants   is
insubstantial,  but noting that if the policy had been  justified
in the interest of safety it would have been upheld).

     29     It  should  be  noted that most of  the  cases  limit
themselves  to reasonable grooming policies.  E.g., Earwood,  539
F.2d  at  1351 ([A] grooming regulation will be sustained  unless
the decision to enact the regulation or the regulation itself  is
so  irrational  that  it  may  be branded  arbitrary  .  .  .  .)
(quotations  and citations omitted); Equal Employment Opportunity
Commn  v. Sage Realty Corp., 507 F. Supp. 599, 609 n.15 (S.D.N.Y.
1981)  ([A]t least seven circuits have ruled that Title VII  does
not  prohibit  an  employer  from  making  reasonable  employment
decisions based on factors such as grooming and dress.); Wofford,
78 F.R.D. at 470 (upholding even-handed application of reasonable
grooming  regulations); Page Airways, 50 A.D.2d at 85  (upholding
reasonable  rules and regulations in regard to the appearance  of
.  .  . employees.).  For example, in one case a federal district
court held that a grooming policy that allowed women to wear long
hair  in  hairnets  but  required men  to  have  short  hair  was
discriminatory when it was based on the need for quality  control
in food processing.  Roberts v. General Mills, Inc., 337 F. Supp.
1055, 1056 (D. Ohio 1971).  Noting that [i]t does not appear that
contamination  could  occur any more  easily  from  a  mans  hair
contained within a hairnet than a womans, it found the rule to be
unreasonable.  Id.  In Miller I this court also noted that  there
could  be  a  different set of circumstances . . .  in  which  an
employers  grooming or appearance-based policies could give  rise
to a claim of sex discrimination.  102 P.3d at 293 n.51.

     30     Witt  v.  State, Dept of Corr., 75  P.3d  1030,  1034
(Alaska 2003) (citations omitted).

     31    In fact, Millers brief discusses [t]he normal practice
of  the  human resources section when someone asserts a  need  to
depart from the hair policy.  (Emphasis added.)  Since Miller did
not  assert  such  a  need, this normal  practice  would  not  be

     32     Miller was given information about how to request  an
accommodation.   At  the  orientation meeting,  Safeway  provided
Miller  with  a  set of its Retail Policies and Procedures  which
included   an  information  sheet  about  its  Equal   Employment
Opportunity/Affirmative   Action   Policy.     When    discussing
accommodation   in   particular,  the  policy   only   references
accommodations for individuals with disabilities.   However,  the
policy  also states that [o]pportunities for success .  .  .  are
available  to  all  employees regardless  of  race,  color,  sex,
national origin, religion, age, handicap/disability status,  [or]
status  as a veteran, and that [a]nyone who feels he or  she  has
been  discriminated against should contact his/her supervisor  or
the  Human Resources Department.  The policy also tells employees
[i]f  you  have  any  questions or concerns regarding  the  Equal
Employment  Opportunity/Affirmative Action  Policy,  please  feel
free  to  discuss  them with your supervisor or call  your  Human
Resources Representative at the number listed below.

          If  Miller  had communicated his concerns  to  Safeway,
testimony  by  Safeway management suggests  that  he  might  have
received  an exemption.  Ann Marie Williams, the Seattle Division
Human Resources Manager for Safeway, testified that Safeway deals
with requests for exceptions to the grooming policy on a case-by-
case  basis, which suggests that in some instances it  does  make
exceptions.  For example, at the time of her deposition,  Safeway
was  researching  the question of whether to  allow  a  religious
accommodation  for an employee who wanted to keep  his  beard  in
violation of the grooming policy because he was a warlock.

     33    102 P.3d at 292.

     34    Witt, 75 P.3d at 1034.

     35     Miller  claims that Mr. Galic appears  to  have  been
motivated  by  the goal of depriving Mr. Miller  of  all  of  the
benefits  of his contract primarily out of a personal  conviction
that  closely groomed hair was good policy for everybody and that
no exceptions could be allowed for any reason.  However, he fails
to  address the uncontested testimony that Mr. Galic did not make
the  decision that Miller would have to cut his hair, rather  one
of his superiors did.

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