A Costco employee with Tourette’s Syndrome raised a fact issue as to whether the frequency and severity of his coworkers’ mockery rose to the level of an objectively hostile work environment.
Persuaded by the reasoning of its sister Circuits as well as a number of other courts that have considered the issue, the Second Circuit for the first time held that hostile work environment claims are cognizable under the ADA. Vacating in part the decision of the court below, the appeals court held that a Costco employee who suffered from Tourette’s Syndrome and Obsessive-Compulsive Disorder, and who alleged his coworkers mimicked his verbal and physical tics, presented enough evidence to survive summary judgment on this claim. The court, however, affirmed summary judgment against his disparate treatment, failure-to-accommodate, and retaliation claims (Fox v. Costco Wholesale Corp., March 6, 2019, Hall, P.).
The long-time Costco employee, who had worked in the warehouse, as an assistant cashier, a cashier, and a greeter, alleged that after store management changed in 2013, he was reprimanded for leaving the entrance area to move a customer cart and for leaving a cart in front of the freezers instead of moving it. In 2013 and 2014, Costco received two customer complaints about his behavior: the first for telling a Costco member she looked beautiful with her pocketbook and the second for telling a member she was the love of his life. The employee, in his statement about the incident, wrote that “I can’t always help what I say.”
Transferred. After the second complaint, the employee was suspended for three days and transferred to an assistant cashier position. He claimed that prior to this, the GM made comments such as “I cringe every time I walk by you,” and “You finally did it.” Before starting as an assistant cashier, he took a month of medical leave while his neurologist adjusted his medications.
Hut-hut-hike. As part of his neurological condition, he often touched the floor before moving and would cough when he felt a verbal tic come on in order to prevent others from hearing him swear. He claimed that once he started as an assistant cashier, his coworkers mocked him for his Tourette’s and OCD by making “hut-hut-hike” remarks to mimic his verbal and physical tics. These comments, he alleged, were overheard by management and happened for “months and months.”
Email to CEO. In March 2014, he emailed the CEO, informing him about his conditions, his long-time employment with Costco, and the change in management style and atmosphere at the store, which he claimed caused him stress and aggravated his Tourette’s. The CEO investigated and transferred a manager who had refused to allow him to take a break to refill a prescription. Despite this, the employee claimed that his coworkers continued to treat him poorly because of his disability. In November 2014, he had a panic attack at work and has been on indefinite medial leave since.
Lower court proceedings. He subsequently sued under the ADA and the New York State Human Rights Law, asserting claims for hostile work environment, disparate treatment, failure to accommodate, and retaliation. The district court granted summary judgment to Costco on all of counts.
Disparate treatment. Affirming as to his disparate treatment claim, the Second Circuit rejected the employee’s contention that four verbal reprimands—for leaving his post as a greeter, leaving a cart unattended, leaving his register for water, and yelling—were adverse employment actions as none resulted in discipline or a reduction in salary or other benefits or responsibilities. And while he alleged the systematic and continuous discrimination he suffered resulted in his transfer from greeter to assistant cashier, a job he could not perform because of his disability, there was no evidence he was demoted, received decreased benefits, worse job duties, or anything else that affected his employment.
Nor did his claim that he was denied breaks to go home and take his medicine or go to the pharmacy rise to the level of a material adverse action, said the court, finding also that he failed to show he was constructively discharged.
Retaliation. As to his retaliation claim, he engaged in protected activity when he emailed the CEO and when he filed a complaint with the appropriate state agency. But he failed to show that the GM laughing at this email to the CEO, his reassignment to the assistant cashier position, or being subjected to a hostile work environment were adverse employment actions or that there was any causal connection between his protected activities and the alleged adverse actions.
Failure to accommodate. Nor could he convince the court to revive his failure-to-accommodate claim. While he seemed to argue that Costco knew his condition would be worsened by his assistant cashier job, he had previously worked as an assistant cashier and there was no reason for the company to know he could not subsequently be able to perform the same job. Nor did he ever request a transfer and even declined an offer to work in the stockroom.
Hostile work environment. Turning to his hostile work environment claim, the court first noted that it had previously assumed without deciding that such claims were cognizable under the ADA. Holding now that they are, the court pointed out that under the ADA, a covered employer “shall [not] discriminate against a qualified individual on the basis of disability in regard to… terms, conditions, and privileges of employment.” Observing that Congress borrowed this language from Title VII, the court, quoting from another case, reasoned that “Because the ADA echoes and expressly refers to Title VII, and because the two statutes have the same purpose—the prohibition of illegal discrimination in employment—” it follows that disabled Americans should be able to assert hostile work environment claims under the ADA, as can those protected by Title VII under that statute, “and we here so recognize.”
Objectively abusive. Because the record supported a finding that the employee believed his work environment to be abusive, the court turned to whether the work environment was objectively abusive. And here, his “hut-hut-hike” allegations raised a material fact issue as to whether Costco employees engaged in ongoing and pervasive discriminatory conduct. The employee testified that when he would feel a verbal tic coming on, instead of saying the “F-word,” he would make a grunting noise and every time, his coworker would say “hut-hut-hike.” These comments, he testified, were audible to the managers and went on for months and months.
Mockery. While the district court concluded that he needed to introduce “evidence regarding the number of times the comments were made per shift, week and/or month” to show they pervaded his working environment, the appeals court found it “demanded too much” of the employee. The evidence at this stage, said the court, was enough for a reasonable factfinder to conclude the comments were sufficiently severe and pervasive to change the conditions of his employment.
“Since the phrase ‘hut-hut-hike’ is borrowed from football, and [the employee] alleges that he often touched the floor when he suffered from verbal tics, presumably resembling a three-point stance, we can fairly infer that the phrase ‘hut-hut-hike’ was mockery of his disability as opposed to, for example, discussing last night’s game or motivating each other to get going,” the court reasoned. And because there was evidence his supervisors witnessed the conduct for “months and months” and did nothing, there was a basis for imputing the conduct to Costco.
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