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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
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| FRANK MILLER, | ) |
| ) Supreme Court No. S- 12331 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3KN-01-00436 CI |
| ) | |
| SAFEWAY, INC., and | ) O P I N I O N |
| MICK GALIC, | ) |
| ) | |
| 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
Appellees.
Before: Fabe, Chief Justice, Matthews,
Bryner, and Carpeneti, Justices. [Eastaugh,
Justice, not participating.]
MATTHEWS, Justice.
I. INTRODUCTION
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.
II. FACTS
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
hair.
a. Mens hair: No longer
than collar length. No
beards.
Mustaches acceptable if
neatly groomed and not
curved over lower lip.
Sideburns should not
extend below the ear
lobe.
b. Womens hair: Neatly
styled.
The introduction to the Oaken Keg
policies also included the following
statement regarding Millers terms of
employment:
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
employee.
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]
III. PROCEEDINGS
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.
IV. DISCUSSION
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
follows:
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
contract.[12]
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
direction.[20]
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
interests.22
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
dealing.
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.
V. CONCLUSION
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
triggered.
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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