Fox v. Costco Wholesale Corp.

• Decision Date: 06 March 2017
• Docket Number: Case No.: 2:15–cv–0439 (DRH)(ARL)
• Parties: Christopher FOX, Plaintiff, v. COSTCO WHOLESALE CORP., Defendant.
• Court: U.S. District Court — Eastern District of New York

239 F.Supp.3d 564

Christopher FOX, Plaintiff,

v.COSTCO WHOLESALE CORP., Defendant.

Case No.: 2:15–cv–0439 (DRH)(ARL)

United States District Court, E.D. New York.

Signed March 6, 2017

Jonathan A. Tand & Associates , P.C., By: Jonathan A. Tand, Esq., 990 Stewart Ave., Ste. 130, Garden City, New York, For the Plaintiff.

Seyfarth Shaw LLP, By: Lorie E. Almon, Esq., Paul Galligan, Esq., 620 Eighth

Ave., 32nd Fl., New York, New York, For the Defendant.

MEMORANDUM & ORDER REGARDING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Denis R. Hurley, Senior District Court Judge

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. 24¹ ; 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 employees⁶ 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 Greeters⁷ 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 recall⁸ —would make "hut-hut-hike" comments in response to Fox's verbal and physical tics,...