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Fox v. Costco Wholesale, Corp.

United States District Court, E.D. New York

March 6, 2017


          JONATHAN A. TAND & ASSOCIATES, P.C., Garden City, New York By:Jonathan A. Tand, Esq., For the Plaintiff.

          SEYFARTH SHAW LLP., By:Lorie E. Almon, Esq. Paul Galligan, Esq., For the Defendant.



         I. Introduction

         Defendant Costco Wholesale Corp. (“Costco”) moves the Court for summary judgment in its favor on all of the employment-discrimination-based claims of Plaintiff Christopher Fox (“Fox”). (See ECF No. 25; hereafter, the “Summary Judgment Motion”.) Fox opposes the Summary Judgment Motion in toto. (See ECF No. 24[1]; hereafter, the “Opposition”.) For the reasons that follow, the Summary Judgment Motion is granted.

         II. Background[2]

         A. Factual Background

         1. Generally

         When this action commenced, Fox was 38-years-old. Since birth, Fox has suffered from Tourette's Syndrome (“Tourettes”) and Obsessive Compulsive Disorder (“OCD”). His Tourettes manifests itself with verbal and physical tics, and Fox's OCD compels him to engage in certain rituals, including counting rituals.

         Since March 1996, Fox has worked for Costco - a members-only warehouse purchasing center - always at its Holbrook, New York warehouse (hereafter, the “Holbrook Warehouse” or “Warehouse”). He has held various positions at the Holbrook Warehouse, including:

(1) on the Front End as an Assistant Cashier, boxing orders and assisting Cashiers; and
(2) in Member Services as a Greeter, including:
(a) welcoming members as they entered and checking for their membership cards,
(b) checking members' receipts as they exited, as well as,
(c) performing floor walks, during which the Member Services employee walks throughout the Warehouse, with a cart that has a mop and broom (a “front-end-cart”), checking on the Warehouse's cleanliness and other matters.

         Costco has anti-discrimination, anti-harassment, and anti-retaliation policies in place and strives to make its employees aware of those policies by, among other things, presenting them to employees during their orientations. Costco also has an “Open Door Policy” under which employees are encouraged to report any incidents they believe to be discriminatory, harassing, and/or retaliatory. It is found in the Costco Employee Agreement.

         Employees at the Holbrook Warehouse, including Fox, are members of the Teamsters' Union (“Union”) and work under a collective bargaining agreement (“CBA”). The CBA includes reporting procedures pursuant to which employees can raise issues alleging discrimination, harassment, and/or retaliation. It also incorporates Costco's Rules and Regulations (“R&Rs”), which, among other things, define conduct that Costco considers to be minor or major offenses and for which, depending on the nature and seriousness of an offense, may subject an employee to disciplinary action or discharge.[3] Other than a vague recollection of being presented with papers and being told what certain papers addressed and what sections of papers to read and not read, and then being instructed to sign off on receipt of those papers, Fox has no specific recollection of reading, receiving, or being aware of Costoc's anti-discrimination, anti-harassment, and anti-retaliation policies, its “Open Door Policy, ” or its Employee Agreement. (See Fox Depo at 39:20-42:22.)

         In June 2013, the General Manager at the Holbrook Warehouse was Larry Resnikoff (“Resnikoff”); he transferred from another Costco warehouse to assume that position. Three Assistant Managers reported to Resnikoff, including Glenn Johnson (“Johnson”), who came to the Holbrook Warehouse around the same time Resnikoff was assigned there. Department managers and supervisors “report up” to the Assistant Managers and Resnikoff. In turn, Resnikoff reports to a regional vice president, Richard Wilcox. Costco's Chief Executive Office is Craig Jelinek (hereafter, “CEO Jelinek”).

         2. Alleged Incidents While Fox Worked as a Greeter

         In 2013, when Johnson became one of the Assistant Managers at the Holbrook Warehouse, Fox was working as a Greeter in Member Services. On two different instances, Johnson spoke to Fox regarding his job performance. Once, after he saw Fox leave the entrance area to move a large, flat cart outside, Johnson told Fox he was not to leave the entrance area to do so. When Fox responded that Greeters would commonly move carts to the outside, Johnson informed Fox, “There's a new boss in town, don't ever leave the door.” (Fox Depo. 96:16-20.) Afterwards, Fox asked another Greeter - who is not disabled - whether she moved carts outside when she was working the entrance, to which she responded affirmatively.[4]

         Another time, Johnson came across an unattended front-end-cart on the Warehouse floor. He waited until the Member Services employee returned to the cart; it was Fox. Johnson questioned Fox about leaving the cart, asking, “Why did you leave the cart here?” Fox replied that none of the Member Services employees took the front-end-cart everywhere with them. With hands on hips, Johnson responded, “We're never going to have this conversation again.” (Fox Depo. 96:3-15; Johnson Depo. 25:5-26:22.) Thereafter, Fox confirmed with a fellow, but non-disabled, Greeter that when she walked the floor, she would sometimes leave the front-end-cart unattended; she had not been told she should not do that.[5]

         3. Complaints Against Fox While He Was a Greeter; Consequential Investigations; and Resulting Disciplinary Actions Taken

         In late September 2013, Fox was working as a Greeter when he made a comment to a female member regarding her purse and her beauty, the exact verbiage of which Fox does not recall. Apparently, the member found Fox's comment troubling because she told her husband about it after she finished shopping, who then called Resnikoff to complain about it. (See Resnikoff Depo. 49:17-50:24.) Resnikoff spoke with both the husband and his member wife. (Id. at 47:4-9.) He then called Fox into his office to further investigate the incident. Fox did not dispute speaking to the member, but - in a written statement - stated he “would never say anything to offend anyone, [but] some people can take things the wrong way . . .” (Fox's LR 56.1 Statement at ¶39.) Thereafter, Resnikoff found the incident was a harassment of a member, constituting a major offense under the R&Rs, and issued Fox an Employee Corrective Consultation, which included a written warning that another offense of this nature would see him terminated, notwithstanding it was an outright dischargeable offense under the R&Rs.

         Less than four months later, on or about January 15, 2014, another member asked to speak to Resnikoff about Fox since she found Fox's comment to her, i.e., “You're the love of my life, ” to be inappropriate and which made her feel uncomfortable. Again, Resnikoff called Fox into his office to inquire about the exchange. As previously, Resnikoff had Fox write down his recollection of the incident, which Fox did not deny occurred. Resnikoff determined that Fox was in violation of Costco's R&Rs, repeating the major offense of harassing a member. Another Employee Corrective Consultation was issued to Fox; however, in lieu of being terminated, Fox was suspended for three days without pay. This decision was made with consultation of Wilcox, the regional vice president. When Fox returned, he was transferred to the Front End as an Assistant Cashier as a means “to help [him] not get into that problem again. . . . It [was] a team effort. So[, ] if he started to go off course with his speech, there would be someone there to say, ‘Hey.'” (Resnikoff Depo, 74:7-8, 16-18.) Resnikoff testified that, as part of “a team effort, ” any Costco employee is expected to try and stop a fellow employee from speaking inappropriately. (Id. at 74:19-75:2.)

         Fox did not suffer any loss of pay or benefits by being transferred to the Assistant Cashier position. Moreover, Fox is not the only Holbrook Costco employee to be transferred from Member Services to the Front End; at least two other employees[6] were similarly reassigned after they were found engaging in defined offenses. (See Johnson Depo. 38:24-39:22, 42:4-43:13; Resnikoff Depo. 73:12-17.) Further, since Resnikoff became the Holbrook Warehouse's General Manager, other Greeters[7] have been disciplined for various offenses such as poor performance and lateness. (See Resnikoff Depo. 75:11-76:10.)

         Fox alleges that during one of these two meetings with Resnikoff, Resnikoff made two disparaging comments directed at Fox's disability: “I cringe every time I walk by you, ” and “[Y]ou finally did it.” He cannot recall if anyone else was present in the office when Resnikoff made those statements. Nor was Fox able to provide further context for the alleged comments. He did not complain to anyone in Costco's management about the comments.

         4. Fox's Reassignment to the Front End as an Assistant Cashier

         Fox alleges he could have been assigned to another job, but does not recall if any jobs were posted or open when he returned from his suspension. After his transfer to the Front End, on January 28, 2014, Fox asked for and was granted a month-long medical leave (from February 1 to March 1, 2014), while his medication was adjusted by his neurologist. Sometime later in 2014, Resnikoff offered Fox a stocker position, which Fox declined. He did not inform Resnikoff that the reason he turned down the offer was his (Fox's) belief that he would be working with others who allegedly mocked his tics.

         While working as an Assistant Cashier, Fox alleges he was discriminated against because of his Tourettes and OCD. For example, he alleged co-workers - whose names he could not recall[8] - would make “hut-hut-hike” comments in response to Fox's verbal and physical tics, [9]which comments Fox further alleges his managers were “able to hear” at their podium station at the Front End. (Fox's LR 56.1 Statement, Additional Facts, ¶103; see also Fox Affidavit at ¶8, attached as Exh. 1 to Tand. Declaration (“[T]hese [hut-hut-hike] comments were audible to the managers of the Holbrook [W]arehouse from their position on the [W]arehouse's podium.”).) However, Fox did not recall complaining to management about those comments.[10] Fox asserts these comments persisted for months, having begun when Resnikoff arrived at the Holbrook Warehouse. (See Fox Affidavit at ¶7.) However, he provided no evidence to support his claims regarding the “hut-hut-hike” comments (e.g., times and dates when “hut-hut-hike” comments were made; some indication of the number of times per shift, week, or month that “hut-hut-hike” comments were made; and/or affidavits or testimony from co-workers or members attesting to having heard such comments being made, and/or the circumstances under which they heard “hut- hut-hike” comments).[11]

         5. The March 2014 Break Incidents

         On March 26, 2014, Fox was working as an Assistant Cashier when he asked the Front End supervisor, Janine DiCandia (“DiCandia”), if he could go home to take his medication. She told Fox that she would have him replaced. However, after at least 45 minutes, when that did not happen, Fox again approached DiCandia and requested to go home; again, DiCandia responded that she would have Fox replaced. Sometime later, [12] when Fox was not replaced, he once more went to DiCandia; this time, DiCandia told Fox to go on a break. Fox responded that he was asking to go home, at which point she directed him to speak with the Assistant Front End Manager. When Fox told the assistant manager he was not feeling well and asked to go home, she granted his request. Fox does not recall having any other incidents with DiCandia.

         Fox was not scheduled to work the following day. When he returned to work on March 28, 2014, with approximately an hour-and-one-half left on his shift, Fox asked the Front End Manager, Colin Campbell, if he could take his last scheduled break. Fox wanted to go to the pharmacy department during this last break to have a prescription refilled. Campbell stated he would give Fox his break, but when Fox approached Campbell towards the end of his shift, again requesting his break, Campbell told Fox he was marked down as having taken his last break. When Fox disputed the accuracy of the mark-down, Campbell responded that he would review the camera. Fox asserts he never received this last break, to which he was entitled.

         6. Fox's March 29, 2014 E-Mail to CEO Jelinek[13]

         Apparently frustrated by the two break incidents, on Saturday, March 29, 2014, at 7:18 p.m., Fox e-mailed Costco's CEO, Craig Jelinek, a three-paged, single-spaced letter to “let [him] know what is truly going on at one of your [Costco] locations.” (Exh. J, attached to Galligan Decl. (ECF No. 25-2 at 137); hereafter, “E-Mail Complaint”.) Initially, Fox provided some background information, e.g., that he had worked for Costco for more than 18 years, during which time “[m]embers and employees have always been very supportive, ” and that he suffers from Tourettes and OCD, but that he was on medication which was controlling his symptoms. He continued that since January 2014, he had observed a change in the atmosphere at the Holbrook Warehouse, i.e., increased tension, which he implied was attributable to new management. Fox informed CEO Jelinek of his belief that this new tension was causing him stress and exacerbating the symptoms of his disability. To deal with that, Fox informed CEO Jelinek that, on the advise of his doctor and for the first time, he (Fox) took a month's medical leave during which time his doctor altered his medications.

         Fox then conveyed the two March 2014 break incidents. First, he described the March 26th incident, asserting he was not feeling well and telling the supervisor[14] as much. He reported she said, “[L]et me know what you wanna do.” He then conveyed to CEO Jelinek about asking multiple times for a break so he could take his medication, to which she replied she would see what she could do. Upon his final request for a break, the supervisor told Fox to speak to a manger. He asserted, “The Front [E]nd knew what I was saying and that I needed help and I needed my meds.” He concluded with speculating about the possible bad publicity Costco would suffer if he had subsequently gotten into an accident because he was not allowed to leave early to take his medications.

         Second, Fox described the March 28th incident when he asked to take his third break so he could “get a refill on [his] meds”, but was denied that request on the mistaken belief that he already took that break. Fox asserted the manager's[15] comment regarding checking the camera (to determine whether Fox took the third break) was meant to threaten him. Fox attributed this alleged intimidation to causing him anxiety, which exacerbated his Tourettes symptoms.

         Of significance, Fox never mentioned (1) the two occasions when he was a Greeter and was corrected by Johnson, (2) the two member complaints when he was a Greeter and which resulted in Resnikoff disciplining Fox, or (3) the “hut-hut-hike” comments allegedly directed at Fox due to his tics. Moreover, Fox never requested any accommodation or corrective action be taken in light of the March break incidents.

         7. Resnikoff's Investigation Regarding the E-Mail Complaint

         Notwithstanding that Fox did not follow Costco's reporting protocols, three hours after receiving Fox's E-Mail Complaint, CEO Jelinek set into motion an investigation of the matter. To that end, Resnikoff met with Fox and all the other employees involved in the March break incidents. Resnikoff reviewed Fox's E-Mail Complaint with Fox, asking Fox to explain exactly what occurred during the two break incidents. It is undisputed that “Resnikoff asked Fox what he wanted to see happen and Fox indicated that it was up to Resnioff.” (Fox's LR 56.1 Statement at ¶73.) Resnikoff transferred Campbell to a different position. There is no indication in the record whether any action was taken with respect to DiCandia. It is further undisputed that once Resnikoff concluded his investigation, it was reported to CEO Jelinek “that an investigation had taken place and that [Fox's] concerns were put at ease.” (Costco's LR 56.1 Statement at ¶71; Fox's LR 56.1 Statement at ¶71.)

         8. Alleged Events After the Conclusion of Resnikoff's Investigation

         (a.) The Time Sheet Incident (Fox Depo. 321:14-322:10; 326:1-328:16): In October 2014, when stocking the Front End with necessary supplies, Fox noticed he did not have any time sheet, which employees use to track task completions. He made several requests to the Front End managers for such sheets, but to no avail. Fox avers that other, non-disabled employees were provided with requested time sheets. However, there are no allegations of disciplinary actions being taken against Fox for failing to turn in time sheets.

         (b.) The Jelly-Related Incidents (Fox Depo. 322:11-325:23; 329:18-331:11; 331:24-334:12): On October 11, 2014, manager Jason (“Jelly”) King snapped at Fox for leaving his register to get his Cashier water. Jelly told Fox he needed permission before leaving his register. However, Fox does not recall whether he was disciplined for leaving the register.

         Two days later and during a shift managed by Jelly, Fox observed another Assistant Cashier - who was not disabled - leaving his register without permission to get water for his ...

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