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Fox v. Costco Wholesale Corporation

United States Court of Appeals, Second Circuit

March 6, 2019

Christopher Fox, Plaintiff - Appellant
v.
Costco Wholesale Corporation, Defendant - Appellee.

          Submitted: January 10, 2018

          Appeal from the United States District Court for the Eastern District of New York No. 2:15-cv-439 - Denis R. Hurley, Judge.

         Plaintiff-Appellant 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.

         We 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.

          Lorie E. Almon, Paul H. Galligan, Ephraim J. Pierre, on the brief, Seyfarth Shaw LLP, New York, New York, for Defendant- Appellee.

          Before: Jacobs, Hall, and Droney, Circuit Judges.

          HALL, CIRCUIT JUDGE

         This is 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.

         Fox 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 conclusion.

         This 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.

         I.

         Fox 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 management.

         While 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.

         Costco's 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.

         In 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.

         Before 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.

         As part 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 saying "hut-hut-hike."

         During 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 day.

         Fox 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 ...


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