Equal Emp't Opportunity Comm'n v. Costco Wholesale Corp., s. 17-2432

• Decision Date: 10 September 2018
• Docket Number: Nos. 17-2432,17-2454,s. 17-2432
• Citation: 903 F.3d 618
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee/Cross-Appellant v. COSTCO WHOLESALE CORPORATION, Defendant-Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

903 F.3d 618

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee/Cross-Appellant

v.COSTCO WHOLESALE CORPORATION, Defendant-Appellant/Cross-Appellee.

Nos. 17-2432

17-2454

United States Court of Appeals, Seventh Circuit.

Argued February 13, 2018

Decided September 10, 2018

Anne Warren King, Attorney, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, DC, for Plaintiff-Appellee.

Erin Dougherty Foley, Attorney, Gerald L. Pauling, II, Attorney, SEYFARTH SHAW LLP, Chicago, IL, for Defendant-Appellant.

Before Sykes and Barrett, Circuit Judges, and Griesbach, Chief District Judge.^*

Barrett, Circuit Judge.

Dawn Suppo, an employee of Costco Wholesale Corporation, was stalked by Thad Thompson, a customer of Costco, for over a year. Things got so bad at the end that Suppo secured a plenary no-contact order from an Illinois state court. Traumatized by the experience, she also took an unpaid medical leave, and when she didn't come back, Costco terminated her employment.

The Equal Employment Opportunity Commission (EEOC) sued Costco on Suppo’s behalf, alleging that Costco had subjected her to a hostile work environment by tolerating Thompson's harassment. After the jury rendered a verdict in the EEOC's favor, Costco moved for judgment as a matter of law and the EEOC moved for backpay. The district court denied both motions, and both parties appeal.

We conclude that the district court was right to deny Costco's motion for judgment as a matter of law, because a reasonable jury could conclude that Thompson's conduct was severe or pervasive enough to render Suppo's work environment hostile. The district court was only half right, however, with respect to the EEOC's motion for backpay. We agree with the district court that Suppo cannot recover backpay for the period of time after Costco fired her. But it should have considered whether Suppo was entitled to backpay for some or all of her time on unpaid medical leave.

I.

The evidence frequently conflicted during the trial, but because the EEOC won a verdict on Suppo's behalf, we recount the facts in the light most favorable to her. We look at the record as a whole, give her the benefit of every inference, and refrain from making credibility determinations. Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150–51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ; see also Walker v. Bd. of Regents of Univ. of Wis. Sys. , 410 F.3d 387, 393 (7th Cir.2005). Our task is to determine whether a juror inclined to believe Suppo's side of the story could reasonably conclude that Costco subjected her to a hostile work environment.

A.

Costco is a warehouse club open to members who pay an annual fee. It offers a wide range of goods—everything from groceries to furniture—at its many locations around the country. In 2009, Suppo began working at Costco's store in Glenview, Illinois as a seasonal, part-time employee; in May of 2010, she transitioned to regular, part-time status. Her duties included doing "go-backs"—re-shelving items that members decided not to purchase. Go-backs required Suppo to circulate around the large warehouse with a shopping cart, returning items to the sections where they belonged. Most, if not all, of her encounters with Thompson occurred while she was doing go-backs.

Suppo encountered Thompson for the first time in May or June of 2010. Thompson referred to Suppo by her first name, which he read from her employee nametag. He noted that he had seen her "speaking to one of the guys up front" and asked what Suppo describes as "a few personal questions," such as where she lived. Suppo replied that it was nice to meet him, but she had to return to work. A few days later, they had a similar encounter: Thompson approached her, asked questions that Suppo considered personal, and Suppo replied that she had to go back to work. Suppo did not immediately report these interactions to Costco management. But they had unnerved her, and two months later, she related them to Don Currier, her direct manager. She told Currier that she was scared, and he instructed her to notify him if she saw Thompson again.

Shortly after her conversation with Currier, Suppo did see Thompson again. This time, he was wearing "sunglasses and a hat" while "watching [her] in different aisles and hiding behind the clothes." When Thompson realized that she had seen him, he told Suppo that she "looked scared" and left. Suppo notified Currier, and Currier, Greg West (Assistant General Manager), and Daniro Hernandez (a loss-prevention officer) brought Thompson into the warehouse office, where they told him to "avoid [Suppo] and ... not talk to her." Thompson was defensive and angry; he loudly stated that it is a "free country" and invoked his "freedom of speech." He nonetheless agreed to stay away from Suppo. Currier told Suppo about the meeting and instructed her to follow up with him if she had future concerns about Thompson.

Suppo remained frightened by this third interaction with Thompson and decided to contact the police. She filed a report stating that Thompson had been asking personal questions and "hiding behind clothes watching her." Later that day, the police called Suppo about her report while she was in the warehouse office with Currier and West. After she hung up, West yelled at her and told her to "be friendly to" Thompson. The police interviewed Thompson, but they did not arrest or charge him. Instead, they filed a half-page report relating Suppo’s claims that "Thompson was stalking her while she was at Costco," that she could "feel him looking at her," and that "when she looks at him he looks down." The report also noted that Thompson had apologized and said that he would avoid Suppo in Costco.

But Thompson did not avoid Suppo. The two encountered one another multiple times over the next 13 months, although Costco and the EEOC disagree about how many. Costco insists before us (as it did before the jury) that Thompson and Suppo could not have seen one another more than 20 times during this 13-month period, because Thompson’s purchase record reflects that he was in the warehouse during only 20 of Suppo's 308 scheduled shifts. As the EEOC pointed out at trial, however, Costco only records when members purchase items, not when they enter the warehouse, and Suppo testified that Thompson’s cart was sometimes empty when she saw him. Thus, Thompson could have been in the warehouse much more often than his purchase record reflects. Suppo also testified that Thompson "constantly" tried to talk to her and "constantly" tried to give her his phone number. Based on the EEOC's evidence, the jury could infer both that Thompson approached Suppo very frequently and that he sometimes came to the warehouse to see her rather than to shop. It was not required to credit Costco's claim that the two saw one another no more than 20 times.

Suppo described her interactions with Thompson as follows. On two occasions, she saw him "coming around the aisle just watching [her]," which made her "uncomfortable." On other occasions, he talked to her. Suppo testified that Thompson expressed some (though not all) of his questions "in a sexual way." He asked (often repeatedly) where she was from, what her nationality was, where else she worked, where else she went, where she lived, what else she did, if she had a boyfriend, which male employees she spoke to, and the identity of a man she shopped with. Suppo described each of these questions as "intimate" because each made her feel "uncomfortable." On various occasions, he told her she was "pretty," "beautiful," and "exotic." He asked how old she was. Two or three times Suppo told him she would not answer, and Thompson mused that "he couldn’t tell if [she] was 17 or 27." (Suppo was in her 40s at the time.) Thompson told her that she "look[ed] scared" and asked several times whether "he freak[ed her] out." He tried to give her his business card on one occasion (pushing it into her hand "two, three, and four times"), asked her out on dates approximately six times, and "constantly" tried to give her his phone number. He also closely observed her appearance: For example, on a day that he saw her twice, he "noticed that she had obviously powdered her face" between the first and second times that he saw her. On another occasion, he noticed that her eye makeup had been applied unevenly.

There was also some physical contact. Thompson used his shopping cart to bump into Suppo or her cart four times. He touched her twice: On one occasion, Thompson touched her face under her eye, noting some darkness. On another, he touched her wrist, commenting on her veins and a sore on her hand that was healing slowly. Thompson also attempted unsuccessfully to hug Suppo twice.

Currier was present for two of these encounters: once when Thompson pulled his cart up next to Suppo before going to the restroom, and once when Thompson asked Suppo a few questions on the warehouse floor before she walked away from him and toward Currier. After the first instance, Currier told Suppo he was watching Thompson. After the second, Currier talked to Thompson. Suppo asked if she could park closer to the store's entrance to avoid being in the parking lot alone. When Costco denied her request, her father began picking her up from work.

On September 1, 2011, Suppo was returning items throughout the warehouse as part of her "go-back" duties. While she was in the fish aisle, Thompson walked up to her and asked if they could talk. Suppo said no, and Thompson, red-faced, "whipped" his cart around and left. Shortly afterward, Suppo was in the candy aisle near the registers when she saw Thompson with his phone over his head, videotaping her "from afar." She said, "I told you to leave me alone." Thompson retorted, "Okay, I'll leave you alone, mysterious Dawn." Suppo returned to work. In the meantime, Thompson saw Currier on the warehouse floor and claimed that while he had just encountered Suppo, she had initiated the contact.

Things moved quickly...