Submitted: January 10, 2018
from the United States District Court for the Eastern
District of New York No. 2:15-cv-439 - Denis R. Hurley,
Christopher Fox appeals from an order of the Eastern District
of New York dismissing his complaint on summary judgment.
Fox, who has suffered from Tourette's Syndrome and
Obsessive- Compulsive Disorder since birth, filed the instant
action against his longtime employer, Costco Wholesale
Corporation, for disability discrimination under the
Americans with Disabilities Act and New York State Human
Rights Law. He asserted claims for hostile work environment,
disparate treatment, failure to accommodate, and retaliation.
The district court granted summary judgment to Costco on all
of Fox's claims.
affirm the judgment of the district court dismissing
Fox's disparate treatment, failure to accommodate, and
retaliation claims. We hold, however, that Fox's hostile
work environment claim is cognizable under the ADA, and with
respect to that claim, we find there are disputes as to
material facts. It was error, therefore, to enter summary
judgment as to Fox's hostile work environment claims.
Jonathan A. Tand, Jonathan A. Tand & Associates, Garden
City, New York, for Plaintiff-Appellant.
E. Almon, Paul H. Galligan, Ephraim J. Pierre, on the brief,
Seyfarth Shaw LLP, New York, New York, for Defendant-
Before: Jacobs, Hall, and Droney, Circuit Judges.
an appeal from a judgment entered on March 9, 2017, in the
Eastern District of New York (Hurley, J.), granting
summary judgment in favor of Defendant-Appellee Costco
Wholesale Corp. ("Costco") in toto.
Plaintiff-Appellant Christopher Fox ("Fox") has
worked at Costco for 21 years. He has suffered from
Tourette's Syndrome ("Tourette's") and
Obsessive-Compulsive Disorder ("OCD") since birth.
brought claims against Costco under the Americans with
Disabilities Act ("ADA"), 42 U.S.C. §§
12111 et seq., and New York State Human Rights Law
("NYSHRL"), N.Y. Exec. Law §§ 290 et
seq., alleging hostile work environment, disparate
treatment, failure to accommodate, and retaliation. The
district court determined that a rational fact-finder could
not find evidence in the record to support sufficiently any
of Fox's theories of recovery. We affirm the district
court's judgment as to Fox's disparate treatment,
failure to accommodate, and retaliation claims. As to
Fox's hostile work environment claim, we reach a contrary
Circuit has previously assumed, without deciding, that
hostile work environment claims are cognizable under the ADA.
See, e.g., Robinson v. Dibble, 613
Fed.Appx. 9, 12 n.2 (2d Cir. 2015) (summary order) (assuming
without deciding that plaintiff may bring a hostile work
environment claim under the ADA when, in any event, the claim
could not survive summary judgment). We now join our sister
Circuits and hold that hostile work environment claims are
cognizable under the ADA. We also determine there is adequate
evidence in the record for Fox's hostile work environment
claim to survive summary judgment. We thus affirm in part and
vacate in part the judgment of the district court and remand
for further proceedings.
started working for Costco's Holbrook, New York warehouse
in 1996. During his time with Costco, Fox worked on the floor
crew, as an Assistant Cashier, Cashier, and Greeter. In June
2013, the Holbrook Costco got a new General Manager, Larry
Resnikoff ("Resnikoff"). Assistant Manager Glenn
Johnson ("Johnson") reported to Resnikoff.
Fox's employment discrimination claims stem from the
stress he suffered at Costco during this change in
working as a Greeter under the new management, Fox was
reprimanded twice by Johnson, who was not his supervisor.
Johnson reprimanded Fox for leaving the Costco entrance area
when Fox went to move a customer cart outside, and instructed
Fox not to leave the entrance area for any reason. Johnson
also reprimanded Fox for leaving a cart unattended in front
of the freezers instead of taking it with him. Johnson,
however, took no formal disciplinary action against Fox.
management received two customer complaints about Fox's
behavior in 2013 and 2014. In 2013, a Costco member felt that
Fox's comment that she looked beautiful with her
pocketbook was inappropriate and called Costco to report the
incident. When Resnikoff addressed the incident with him, Fox
admitted to speaking to the Costco member but claimed that he
did not mean to offend her. Resnikoff informed Fox he would
be terminated if another similar complaint were received.
2014, Fox apparently told a different Costco member that she
was "the love of [his] life." J. App'x at 210.
Resnikoff spoke to Fox about this complaint and asked him to
write down what happened. Fox did not confirm or deny that
the incident occurred, but he wrote in his statement, "I
might on occasion say something nice that might offend
someone regardless if they are having a bad day or not. I
can't always help what I say." Id. at 211.
Resnikoff suspended Fox for three days without pay and
transferred him to an Assistant Cashier position, where he
would have less direct contact with members. Neither
Fox's pay nor his benefits were reduced as a result. Fox
understood that the change in his position was in lieu of
termination. During his deposition, Fox stated that prior to
these two investigations, Resnikoff made disparaging comments
regarding Fox's disability, including "I cringe
every time I walk by you" and "[Y]ou finally did
it." Id. at 206-07.
starting as an Assistant Cashier, Fox was granted one month
of medical leave while his neurologist adjusted his
medications. He started as an assistant cashier after that
leave. There is no evidence that positions other than
Assistant Cashier were available at the time Fox returned to
work. At some point in 2014, however, Resnikoff offered Fox a
position as a Stocker. Fox declined to take it.
of Fox's neurological condition, he would often touch the
floor before moving and would cough when he would feel a
verbal tic come on in order to prevent others from hearing
him swear. Fox testified that once he began his position as
an Assistant Cashier, other Costco employees mocked him for
his Tourette's and OCD. In his deposition, Fox described
how certain Costco employees would make
"hut-hut-hike" remarks to mimic Fox's verbal
and physical tics. Fox also testified that these comments
"were audible to the managers of the Holbrook warehouse
from their position on the warehouse's podium," and
"happened in plain view of the Supervisors and the Front
End Managers and nothing was ever said." Id. at
189, 72; see also id. at 76, 112-13. Fox testified
further that these types of comments happened for
"months and months" and "whenever" he
would experience tics. Id. at 112-13. Johnson, on
the other hand, testified that he was unaware of anyone
March 2014, Fox asked his supervisor Janine DiCandia
("DiCandia") for a break to go home and take his
medication. According to Fox, DiCandia did not find him a
replacement, and he had to ask again. It took several hours
from his initial request until he was permitted to go home.
Also during March, Fox asked his supervisor Colin Campbell
("Campbell") for permission to take his break so he
could go to the pharmacy and have a prescription re-filled;
Campbell told him he could not because he had used his breaks
for the day. Fox claims he never received his last break that
decided to e-mail Costco's CEO Craig Jelinek
("Jelinek") on March 29, 2014, to explain his
conditions, his long-time employment with Costco, the change
he had observed in the Holbrook Costco management style, and
the fact that the change in atmosphere at Costco caused him
"stress," which "aggravate[ed] [his]
tourettes," requiring him to take a month of medical
leave. Id. at 169. Fox also wrote Jelinek about the
two incidents ...