Bowie v. Costco Wholesale Corp.

• Decision Date: 22 July 2019
• Docket Number: Case No. 3:16-cv-5808(BRM)(LHG)
• Parties: JEFFREY BOWIE, Plaintiff, v. COSTCO WHOLESALE CORPORATION, BRUCE DZENEORF, and JOHN AND JANE DOES 1-10, Defendants.
• Court: U.S. District Court — District of New Jersey

JEFFREY BOWIE, Plaintiff, v. COSTCO WHOLESALE CORPORATION, BRUCE DZENEORF,and JOHN AND JANE DOES 1-10, Defendants.

Case No. 3:16-cv-5808(BRM)(LHG)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

July 22, 2019

NOT FOR PUBLICATION

OPINION

MARTINOTTI, DISTRICT JUDGE

Before this Court is Defendants Costco Wholesale Corporation ("Costco") and Bruce Dezendorf's ("Dezendorf") (collectively, "Defendants") Motion for Summary Judgment. (ECF No. 32.) Plaintiff Jeffrey Bowie ("Bowie") opposes the Motion. Having reviewed the submissions filed in connection with the Motion and having held oral argument on July 9, 2019, pursuant to Federal Rule of Civil Procedure 78(a), for the reasons set forth below and for good cause shown, Defendants' Motion for Summary Judgment is GRANTED.

I. BACKGROUND

This case involves Bowie's termination from Costco. The main question before the Court is whether Bowie was discriminated by being terminated because he exercised his scheduling accommodation by leaving work early and coming in late to take care of his autistic son or for committing four Costco policy violations in a week.

A. Costco's Corporate Structure

Costco, a Washington corporation, operates warehouses to "provide non-food items, food items, and other merchandise and ancillary products to its 'members.'" (ECF No. 32-2 ¶ 1 and ECF No. 35-2 ¶ 1.) One of those warehouses is located in Brick, New Jersey ("Brick Warehouse"). (ECF No. 32-2 ¶ 2 and ECF No. 35-2 ¶ 2.) Every Costco warehouse is operated by a general manager, who oversees all operations at his warehouse and who is supported by two to four assistant general managers, as well as a team of senior or staff level managers. (ECF No. 32-2 ¶¶ 3, 5 and ECF No. 35-2 ¶¶ 3, 5.) The general managers report to a regional vice president, who in turn reports to a Costco's senior vice president. (ECF No. 32-2 ¶ 4 and ECF No. 35-2 ¶ 4.) The senior vice president then reports to an executive vice president and chief operating officer for the Eastern United States and Canada. (ECF No. 32-2 ¶ 4 and ECF No. 35-2 ¶ 4.)

Bruce Dezendorf ("Dezendorf") was the General Manager of the Brick Warehouse from August 2013 to present. (ECF No. 32-2 ¶ 3 and ECF No. 35-2 ¶ 3.)¹ At all relevant times, Paul Pulver ("Pulver") was the Regional Vice President of the Brick Warehouse, Jeff Long ("Long") was the Senior Vice President, and Joe Portera ("Portera") was the Executive Vice President and Chief Operating Officer of the United State and Canada. (ECF No. 32-2 ¶ 4 and ECF No. 35-2 ¶ 4.) Pulver, Long, and Portera work out of Costco's regional corporate offices in Virginia. (ECF No. 32-2 ¶ 4 and ECF No. 35-2 ¶ 4.) In addition, during the relevant time period, Jim Mack ("Mack"), Peter Demoleas ("Demoleas"), and Bowie were Assistant General Managers at the Brick Warehouse. (ECF No. 32-2 ¶¶ 7-8 and ECF No. 35-2 ¶¶ 7-8.)

Bowie has sole custody of his five children, one whom is autistic and disabled. (ECF No. 32-2 ¶ 10; ECF No. 35-2 ¶ 10; ECF No. 35-1 ¶ 1.) He began his employment with Costco in 1994as a forklift operator in the Edison, New Jersey warehouse. (ECF No. 32-2 ¶ 38; ECF No. 35-2 ¶ 38; ECF No. 35-1 ¶ 2.) Through a series of promotions and relocations, Bowie eventually became an Assistant General Manager at the Brick Warehouse. (ECF No. 32-2 ¶¶ 38-40; ECF No. 35-2 ¶¶ 38-40; ECF No. 35-1 ¶¶ 3-5.)

B. Costco's Employee Agreement

In March 2013, Costco issued an Employee Agreement, which articulated Costco's Equal Opportunity policy that

employees should be able to enjoy a work environment free from all forms of unlawful employment discrimination. All decisions regarding recruiting, hiring, promotion, assignment, training, termination, and other terms and conditions of employment will be make without unlawful discrimination on the basis of race, color, national origin, ancestry, sex, sexual orientation, gender identity or expression, religion, age, pregnancy, disability, work-related injury, covered veteran status, political ideology, genetic information, marital status, or any other fact that the law protects from employment discrimination.

(Ex. 10 to ECF No. 32-4 at 13.) Costco's Employee Agreement also intends to comply with its duty to provide reasonable accommodations to people with disabilities. (Id.) Costco maintains a policy governing reports of harassment, discrimination, or retaliation. (Id. at 14.) Any such claims should be reported to a manager or higher and will be investigated. (Id.) "In cases where investigation confirms the allegations, appropriate corrective action will be taken, regardless of whether the inappropriate conduct rise to the level of any violation of law." (Id.) In addition, employees will not suffer retaliation for reporting any violation of Costco's policy or unlawful discrimination, harassment, or retaliation. (Id. at 13.) Costco also maintains an Open-Door Policy, meaning that an employee has "the option of contacting any Supervisor or Manager to help you resolve problems." (Id. at 11.) Bowie received a copy of the Costco's Employee Agreement, and as Assistant Manager, employees approached Bowie on a regular basis through the Open-DoorPolicy. (ECF No. 32-2 ¶¶ 16, 19 and ECF No. 35-2 ¶¶ 16, 19.)

Section 7.0 of the Employee Agreement also sets forth Costco's policies regarding the use of the Family Medical Leave Act ("FMLA"). (Ex. 10 to ECF No. 32-4.) A Costco employee is eligible for up to twelve work weeks of FMLA leave during a 12-month period if they have been employed by Costco for at least twelve months and worked at least 1,250 hours during that twelve-month period. (Id. at 44.) FMLA leave is available for the birth of a child; family care for a spouse, child, or parent; a serious health condition, qualifying exigencies, and injured servicemember care. (Id. at 44-45.) FMLA leave "may be taken intermittently or on a reduced schedule basis (e.g., by working fewer days in a week or by working fewer hours in a day) only if medically necessary." (Id. at 45.)

To receive FMLA leave, an employee is required to submit appropriate paperwork to have the leave approved. (Id. at 46.) A health care provider is required to certify the need for leave and the duration for leave. (Id.) Costco's paperwork is accessible to employees in the administrative office and the employee intranet. (Id.) The Payroll Clerk is responsible for distributing Costco's FMLA forms to inquiring employees, collecting completed forms, calculating employees' work hours, and submitting the forms to headquarters for review and approval. (ECF No. 32-2 ¶ 24 and ECF No. 35-2 ¶ 24.) Bowie was trained to direct employees inquiring about FMLA leave to the payroll department. (ECF No. 35-2 ¶¶ 25-26.) Bowie applied for FMLA leave three times while working at the Brick Warehouse when his children were born. (ECF No. 32-2 ¶ 27 and ECF No. 35-2 ¶ 27.)

Section 11.7 of the Employment Agreement sets forth Costco's Standard of Ethics—Managers/Supervisors. (Ex. 10 to ECF No. 32-4 at 77.) When accepting a management position, an employee "must be committed to and demonstrate a role of honesty and forthrightness. Anytime there is the slightest doubt about an activity that could be questioned regarding honesty, integrity or intent, you must discuss it without your Manager or Regional Vice President to remove any doubt." (Id.) "Managers must never engage in any activity which could raise a question concerning their integrity." (Id.) Bowie was aware of and understood this section of the Employment Agreement. (ECF No. 32-2 ¶ 31 and ECF No. 35 ¶ 31.)

The Employment Agreement also set forth causes for termination in Section 11.3. (Ex. 10 to ECF No. 32-3 at 70-73.) In relevant part, causes for termination include: (1) violating company policies prohibiting harassment or discrimination; (2) violating the manager's standard of ethics; (3) dishonest including, theft of any kind; (4) unauthorized entry or exit from the Costco premises; and (5) "[e]xtending or receiving unauthorized discounts, refunds, or credits, including but not limited to . . . [r]inging up one's own sales or a family member's sales." (Id.) Prior to termination, however,

the employment of an individual who has been employed two or more years, the circumstances must be reviewed with a Senior Vice President or above. Prior to terminating the employment of an individual who has been employees five or more years, the circumstances must be reviewed with an Executive Vice President or above.

(Id. at 28.)

C. Bowie's Accommodation

In 2012, Bowie utilized the Open-Door policy to speak with the former General Manager of the Brick Warehouse, Leonard Wohlgemuth ("Wohlegemuth"), to request an accommodation to care for his disabled son. (ECF No. 32-2 ¶ 51 and ECF No. 35-2 ¶ 51.) Specifically, he requested to leave early or come in late to work to care for his son. (ECF No. 32-2 ¶ 52 and ECF No. 35-2 ¶ 52.) Wohlgemuth approved such accommodation at least twice. (Id.) The parties dispute whether Wohlgemuth's approval allowed Bowie to leave early or arrive late, without requesting priorpermission from senior management. (ECF No. 32-2 ¶¶ 52-54; ECF No. 35-2 ¶¶ 52-54; ECF No. 35-1 ¶ 16; and ECF No. 36 ¶ 16.) They further dispute whether Bowie was required to file for formal FMLA leave following their conversation. (ECF No. 32-2 ¶ 55; ECF No. 35-2 ¶ 55; ECF No. 35-1 ¶ 17; and ECF No. 36 ¶ 17.)

In August 2013, Dezendorf became the new General Manager of the Brick Warehouse. (ECF No. 32-2 ¶ 56 and ECF No. 35-2 ¶ 56.) Bowie informed Dezendorf of his accommodation, that he would need to either come in late or leave early to care for his disabled son. (ECF No. 32-2 ¶ 59 and ECF No. 35-2 ¶ 59.) Dezendorf agreed with the previous arrangement. (ECF No. 32-2 ¶ 60 and ECF No. 35-2 ¶ 60.) However, Dezendorf recalls asking Bowie to notify him when he was coming in late or leaving early, which Bowie argues was never a part of the accommodation. (Id.) Again, after advising Dezendorf of his...