Jackson v. Costco Wholesale Corp., DA 18-0065

• Decision Date: 30 October 2018
• Docket Number: DA 18-0065
• Parties: Chad JACKSON, Petitioner and Appellant, v. COSTCO WHOLESALE CORPORATION, Respondent and Appellee.
• Court: Montana Supreme Court

393 Mont. 191

429 P.3d 641

2018 MT 262

Chad JACKSON, Petitioner and Appellant,

v.COSTCO WHOLESALE CORPORATION, Respondent and Appellee.

DA 18-0065

Supreme Court of Montana.

Submitted on Briefs: August 29, 2018

Decided: October 30, 2018

For Appellant: Torrance L. Coburn, Tipp Coburn Schandelson PC, Missoula, Montana

For Appellee: John G. Crist, Crist, Krogh & Nord, PLLC, Billings, Montana

Justice Beth Baker delivered the Opinion of the Court.

¶ 1 Chad Jackson appeals an order of the Fourth Judicial District Court, Missoula County. The District Court affirmed the Human Rights Commission’s decision granting Costco Wholesale Corporation summary judgment and dismissing Jackson’s claim of unlawful discrimination in employment on the basis of a disability and failure to make reasonable accommodation. Jackson argues that Costco terminated him for conduct resulting from a disability, which cannot qualify as a legitimate, nondiscriminatory basis for termination. We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 2 Jackson began his employment with Costco in its Missoula warehouse store in 1997. Throughout the course of his employment, Jackson requested various accommodations due to his prescribed medication causing sleep interference, and Costco granted him intermittent Family Medical Leave Act (FMLA) leave and excused tardiness. Jackson at no time notified Costco that he had been diagnosed with major depressive disorder

and generalized anxiety disorder.

¶ 3 On October 5, 2015, Jackson’s psychologist, Dr. Linda Frey, completed an FMLA form requesting excused intermittent tardiness. The description of the relevant medical facts for which he sought this accommodation stated that he "experiences symptoms including fatigue and hypersomnia. Medication prescribed him exacerbates sleep problems in making it very difficult to rouse/awaken." Dr. Frey stated that the need for intermittent tardiness began on October 5, 2015, and was estimated to end in April 2017.

¶ 4 Jackson testified that on October 22, 2015, Austin Crowley, a manager at Costco, asked him how he was feeling. Crowley was not Jackson’s supervisor, but he did know him on a personal basis. Jackson informed Crowley that he "was not emotionally and mentally feeling well." Crowley asked if Jackson needed to be excused from work to go home, and Jackson advised that he did. Jackson thinks that he may have mentioned his depression to Crowley "in passing" prior to October 2015, but he has no specific recollection of doing so. On October 31, 2015, Jackson provided a Costco Human Resources officer with a return-to-work letter from Dr. Frey that stated: "Mr. Jackson experienced difficulties associated with his medical condition and medications this past week. He sought emergency medical treatment on Thursday, October 22[,] 2015. This situation resulted in him missing work from then through October 30, 2015." Dr. Frey also wrote another letter with identical language, except she changed the return date to October 26, 2015.

¶ 5 On October 31, 2015, Jackson returned to work. Denise Parrott, a Costco manager, noticed that he was wearing a "Griz" stocking hat while working in the front of the store as a cashier. Because Costco has a store policy prohibiting employees from wearing hats while working at the cash registers, Parrott asked Jackson to remove the hat. Jackson became agitated and angry and insisted that he could wear a hat when he was cold. Eventually, Jackson took the "Griz" stocking hat back to his locker. He returned to the cash register wearing a "Costco" logo stocking hat. At Parrott’s request, another supervisor informed Jackson that he needed to report to the front-end office to speak with Parrott.

¶ 6 When Parrott began to speak with Jackson about wearing a hat, he became angry. She tried to talk to him about the store policy, but Jackson yelled at her, refused to sit down, and used profanity. Jackson claims that he did not "yell" at Parrott but admits that his voice was "elevated." Parrott radioed Wayne Rhoades, Assistant Warehouse Manager, for assistance because she was frightened by Jackson’s behavior. Jackson was leaving as Rhoades arrived, and the two physically bumped into one another. Rhoades stated that Jackson was extremely agitated and upset. Rhoades had to ask Jackson several times to return to the office so that they could discuss the issue, and Jackson eventually agreed.

¶ 7 Back in the front-end office, Rhoades asked Jackson several times to sit down. Rhoades told him that he was being disruptive and insubordinate, and Jackson ultimately sat down. When Rhoades asked Parrott to tell him what had occurred, she started to speak but Jackson interrupted, pointed at Parrott, and again began yelling. Rhoades managed to get Jackson to calm down; when Parrott began to speak again, however, Jackson began yelling at her and pointing his finger at her. Eventually, Rhoades concluded the meeting because Jackson could not compose himself appropriately to continue the discussion. Rhoades directed him to retrieve shopping carts in the parking lot for the remainder of his shift.

¶ 8 After the incident, Rhoades consulted with Assistant General Manager Dan Walsh about what had occurred. Rhoades and Walsh then met with General Manager Stacey Jimenez to review the incident. Rhoades, Walsh, and Jimenez concluded that Jackson needed to be placed on a three-day suspension while Costco decided whether to terminate his employment for insubordination. Costco’s Employee Agreement, which Jackson signed and acknowledged that he received, describes employee conduct that may result in termination. It lists, among other behaviors, "Insubordinate conduct including, but not limited to: a. Refusal to comply with the direct instructions or directions of your Supervisor." At the end of Jackson’s October 31 shift, Rhoades and Walsh met with Jackson to advise him of his suspension. Rhoades stated that Jackson became extremely angry, used profanity, walked out of the office, and slammed the office door so hard that he knocked a cork board off the wall. Jackson does not recall using profanity but concedes that he slammed the door hard enough to knock the cork board off the wall.

¶ 9 Before Costco will terminate an employee who has worked with the company for more than five years, the circumstances must be reviewed with an Executive Vice President or above. After Jackson’s suspension, three senior management members reviewed whether to terminate his employment: Michael Hayes, Vice President of Northwest Operations II; Mario Omoss, Senior Vice President, Northwest Region; and John McKay, Chief Operating Officer of the Northern Division. They agreed that Jackson’s conduct was unacceptable, insubordinate, and violated the Employee Agreement. On November 6, 2015, McKay decided to terminate Jackson’s employment and informed the others of his decision via an e-mail the same day.

¶ 10 On November 8, 2015, Jimenez and Rhoades met with Jackson to inform him of his termination. At the outset of the meeting, Jackson apologized for his behavior during the October 31 meetings and stated that his conduct was a result of his depression and anxiety disorders. The November 8 meeting was the first time that Jackson had told Costco about his depression and anxiety. Jimenez and Rhoades advised Jackson that he was being terminated. They met again on November 12, 2015, to sign a termination notice. After the November 8 meeting, Jackson provided Costco with a letter from his psychiatrist, Dr. John Willoughby, stating that when Jackson had discontinued his medications it resulted in a "mental health decompensation" and that, if Jackson continued to be compliant with medications, "the likelihood of future confrontations and decompensation is be [sic] small."

¶ 11 After his termination, Jackson filed a complaint with the Montana Human Rights Bureau alleging that Costco discriminated against him by terminating him from employment because of his disability. He stated that he has a disability as defined in the Montana Human Rights Act (MHRA) and the Americans with Disabilities Act (ADA). Jackson further alleged that Costco discriminated against him by failing to make reasonable accommodations for his disability. The reasonable accommodation that Jackson sought was for Costco to allow him to keep his job after reviewing his medical records. Costco moved for summary judgment, claiming it had a legitimate business reason for discharging Jackson. Jackson opposed the motion.

¶ 12 The matter came before a Hearing Officer, who held that Costco established a legitimate, nondiscriminatory reason for terminating Jackson and that Jackson did not present evidence raising an inference that Costco’s reason for termination was a pretext. Concluding that Jackson "did not establish a material and substantial genuine fact issue," the Hearing Officer granted summary judgment in favor of Costco. Jackson appealed to the Commission. After review of the complete record, the Commission determined that viewing the facts in the light most favorable to Jackson supported the conclusion that discrimination did not occur. The Commission affirmed the Hearing Officer’s order and adopted the order granting Costco’s motion for summary judgment as part of its final agency decision. Jackson appealed to the District Court.

¶ 13 Following briefing and oral argument, the District Court affirmed the Final Agency Decision of the Commission and adopted the order granting Costco’s motion for summary judgment.

STANDARDS OF REVIEW

¶ 14 A court reviews a final decision of the Human Rights Commission to determine whether the agency’s findings are clearly erroneous and whether its interpretation and application of the law are correct. Denke v. Shoemaker , 2008 MT 418, ¶ 39, 347 Mont. 322, 198 P.3d 284 ; see § 2-4-704(2), MCA. This Court employs the same standards when reviewing a district court’s order affirming or reversing the Commission’s decision. Denke , ¶ 39. We consider summary...