Marini v. Costco Wholesale Corp.

• Decision Date: 01 December 2014
• Docket Number: No. 3:11–cv–00331 JAM.,3:11–cv–00331 JAM.
• Citation: 64 F.Supp.3d 317,30 A.D. Cases 1876
• Court: U.S. District Court — District of Connecticut
• Parties: Peter V. MARINI, Plaintiff, v. COSTCO WHOLESALE CORPORATION, Defendant.

64 F.Supp.3d 317

30 A.D. Cases 1876

Peter V. MARINI, Plaintiff

v.COSTCO WHOLESALE CORPORATION, Defendant.

No. 3:11–cv–00331 JAM.

United States District Court, D. Connecticut.

Signed Dec. 1, 2014.

Joseph D. Garrison, Joshua R. Goodbaum, Garrison Levin–Epstein Richardson Fitzgerald & Pirrotti PC, Vincent N. Amendola, Jr., Law Office of Vincent N. Amendola, Jr., LLC, West Haven, CT, for Plaintiff.

Courtney Stieber, Lorie Elizabeth Almon, Mary E. Ahrens, Paul H. Galligan, Seyfarth Shaw, LLP, New York, NY, for Defendant.

RULINGS ON PENDING MOTIONS

JEFFREY ALKER MEYER, District Judge.

Plaintiff Peter Marini is a former employee of defendant Costco Wholesale Corporation (Costco). He alleges that he was subject to on-the-job discrimination at Costco because he has Tourette's syndrome, a neurological disability that causes pain, stiffness, and a series of noticeable “tics” or involuntary movements and vocalizations. After he complained about discrimination, he decided to secretly tape-record many of his interactions with co-workers and customers for nearly two years. Soon after defendant Costco learned of plaintiff's secret tape recordings, it fired plaintiff from his job.

Plaintiff's lawsuit principally alleges claims of hostile work environment and retaliation under the American with Disabilities Act (ADA) and the Connecticut Fair Employment Practices Act (CFEPA), as well as state law claims for breach of contract, for promissory estoppel, and for intentional infliction of emotional distress.¹ Among numerous pending motions, defendant has moved for summary judgment on all claims.

For the reasons set forth below, I will grant in part and deny in part defendant's motion for summary judgment as follows:

• Hostile work environment (Count One). As to plaintiff's hostile work environment claim, I GRANT defendant's motion for summary judgment. I conclude that the hostile work environment claim is time-barred because there is no genuine issue of fact to show that plaintiff was subject to a hostile act that was taken on the basis of his Tourette's syndrome within 300 days of his filing an administrative complaint of discrimination with the Connecticut Commission on Human Rights and Opportunities.

• Breach of contract (Count Two). As to plaintiff's breach-of-contract claim, I GRANT in part and DENY in part defendant's motion for summary judgment. I conclude that a written employment contract existed between plaintiff and defendant and that a genuine issue of fact remains whether defendant violated the anti-harassment provisions of the employment contract. The anti-harassment provisions of the contract are not preempted and are broader than the harassment protections that exist by reason of background law under the ADA and CFEPA. As to other alleged violations of the employment contract, I conclude that no genuine issue of fact remains to establish a breach and/or damages from breach.

• Promissory estoppel (Count Three). As to plaintiff's promissory estoppel claim, I GRANT defendant's motion for summary judgment on the ground that plaintiff has abandoned the claim.

• Intentional infliction of emotional distress (Count Four). As to plaintiff's claim of intentional infliction of emotional distress, I GRANT defendant's motion for summary judgment. I conclude that principles of vicarious responsibility do not permit defendant on these facts to be liable for the harassment acts of its non-supervisory employees and that any remaining employee acts do not rise to the level of egregiousness to allow for liability on grounds of intentional infliction of emotional distress.

• Retaliation (Count Five). As to plaintiff's retaliation claim, I GRANT defendant's motion for summary judgment. I conclude that there is no genuine issue of fact to suggest that plaintiff was fired because of any of his complaints about discrimination. I do not decide whether an employee may ever engage in covert tape recordings for the purpose of substantiating a claim of discrimination; I conclude only that plaintiff's blunderbuss recording of conversations having nothing to do with his lawsuit or disability was not protected activity and was an adequate basis for defendant to terminate plaintiff's employment. Plaintiff has not shown a genuine fact issue that defendant's stated basis for firing plaintiff was a pretext for disability discrimination.

Background

Plaintiff began working in 2001 at the Costco warehouse store in Milford, Connecticut. For his first seven years, he worked as a baker assistant in the Costco bakery department, until he transferred in summer 2008 to the Costco gas station where he remained until he was fired in late November 2011.

Throughout his time working in the bakery from 2001 to 2008, one of plaintiff's co-workers—Fred Muoio—allegedly subjected him to regular and sometimes severe harassment. Muoio ridiculed plaintiff's Tourette's syndrome, and he threatened and shouted at plaintiff. Plaintiff complained to both his direct supervisor and one level up to an assistant general manager. Although Muoio was reprimanded, the harassment abated only temporarily.

In spring 2008, plaintiff's physician sent Jeff Dawson, the general manager of the Costco store, a letter explaining that plaintiff was in pain and had migraine headaches in connection with his Tourette's syndrome. Soon after Dawson received the letter, plaintiff told Dawson that the bakery job was becoming “impossible” for him, and he asked if there was a policy to protect him from discipline for taking sick days. Plaintiff also told Dawson he would like to transfer to a position at Costco's gas station rather than to keep working in the bakery. In the summer of 2008, plaintiff was transferred from the bakery to a new position at the Costco gas station.

But his troubles did not end there. At the gas station, plaintiff had a new supervisor—Joe Cefaratti—and they did not get along. Cefaratti made fun of plaintiff and threatened to send him back to the bakery. Cefaratti also repeatedly reprimanded plaintiff by means of so-called Employee Counseling Notices (ECNs), an institutional euphemism for disciplinary write-ups to document an employee's alleged workplace infractions.

In January 2009, Cefaratti issued plaintiff an ECN for excessive absences. Plaintiff refused to sign this ECN, contending that his absences were due to chronic back and neck pain and referencing his doctor's prior letter to Costco management.

Some weeks later, Costco implemented a program in spring 2009 to require its gas station attendants to promote American Express credit cards to customers. After plaintiff balked at participating in this program, Cefaratti issued an ECN in June 2009 to plaintiff as well as to two of his fellow gas station attendants for failure to promote the credit cards to customers. Plaintiff signed the ECN, but objected that he had been “harassed and threatened into doing this” and that he did not believe promoting credit cards was within his job description. When Dawson invited plaintiff to discuss the ECN with him, plaintiff did so but did not mention his disability as a reason why he could not participate in the credit card promotion program. Soon thereafter, however, plaintiff's physician sent another letter to Costco explaining that plaintiff's Tourette's syndrome caused him “difficulty during protracted interactions with customers concerning promotional opportunities.” Doc. # 105–9 at 2. After this letter, plaintiff did not receive another ECN for failing to promote credit cards.

On September 27, 2009, plaintiff emailed a formal complaint of disability discrimination to Costco's regional vice president. The complaint was titled “Americans with Disability Act: Formal Complaint Statement,” and it addressed concerns arising from his employment at both the bakery and the gas station. He complained that baker Muoio had teased and abused him, that his complaints to supervisors had resulted in minimal change in Muoio's behavior, that supervisors had ignored plaintiff's complaints about the physical difficulty of his bakery job, and that one of his supervisors had needlessly prolonged his transfer to the gas station.

Plaintiff's complaint also alleged mistreatment at the gas station. He alleged that, shortly after starting at the gas station in summer 2008, Cefaratti “tricked me into believing I had yet to work more shifts in the bakery ... by hanging a fake gas station schedule.” Doc. # 105–7 at 48. Plaintiff heard from a co-worker that another supervisor had mocked how plaintiff would respond to the fake schedule, by saying, “Yeah that should get him twitching.” Ibid.

On November 1, 2009, plaintiff supplemented his complaint to allege further abuses by Cefaratti. Plaintiff claimed that Cefaratti told him that “I can throw you to the wolves,” with a suggestion that Cefaratti could transfer him back to the bakery to face continued harassment there. Doc. # 88–5 at 10. Plaintiff also claimed that Cefaratti once told plaintiff that his “involuntary tics make me look like I was dancing to the music he was listening to.” Ibid.

Plaintiff's complaint led to a personnel investigation by Costco's human resources department. Justin Callahan, an assistant vice president of human resources, interviewed 19 employees. In October 2009, Callahan released a draft report concluding that Muoio “subjected [plaintiff] to humiliation and abuse ... over a period of seven years,” and that there was “[v]ery little evidence that this issue was ever addressed adequately.” Doc. # 105–7 at 53. Callahan cleared general manager Dawson of any wrongdoing and could not corroborate plaintiff's complaints about Cefaratti at the bakery. In November 2009, Callahan advised plaintiff that “although we could not confirm all of the details of your report, your complaint of inappropriate conduct in the bakery is valid,” and Callahan assured him that “we are taking corrective action that we believe will prevent any further inappropriate conduct from occurring.”...