Fox v. Costco Wholesale Corp.
918 F.3d 65
2d Cir.2019Background
- Christopher Fox, a 21-year Costco employee, has Tourette’s Syndrome and OCD and worked as Greeter, Assistant Cashier, Cashier, and Stocker at the Holbrook, NY warehouse.
- New management (GM Resnikoff) arrived in 2013; Fox received verbal reprimands and, after two customer complaints, was suspended three days and moved from Greeter to Assistant Cashier (no pay/benefit reduction).
- Fox alleges coworkers mocked his tics with a recurring "hut-hut-hike" chant for "months and months," often in plain view/audible to supervisors; he also alleges being denied short breaks on two occasions.
- Fox emailed Costco’s CEO and filed an NYSDHR complaint; an internal investigation followed, a coworker was transferred, and Fox later went on indefinite medical leave after a panic attack.
- District court granted summary judgment to Costco on all claims; on appeal the Second Circuit affirmed dismissal of disparate treatment, failure to accommodate, and retaliation claims but reversed as to hostile work environment and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Disparate treatment (ADA/NYSHRL) | Reprimands, transfer to Assistant Cashier, and denied breaks were adverse actions caused by disability | Reprimands and transfer were not materially adverse (no pay/benefit loss); breaks were minor inconveniences | Affirmed: plaintiff failed to show materially adverse employment action or nexus to disability |
| Failure to accommodate | Costco should have known Assistant Cashier would worsen his condition and provide accommodations | Fox never requested accommodations; Costco could not be expected to know he could no longer perform a job he had previously done | Affirmed: no request, no identified accommodation, no notice of need |
| Retaliation | Adverse actions (reassignment, supervisor reactions, hostile environment) followed his CEO email/NYSDHR filing | No materially adverse actions; no causal nexus shown | Affirmed: protected activity established but no adverse action/causal link shown |
| Hostile work environment (ADA/NYSHRL) | Repeated mocking of tics ("hut-hut-hike") over months, witnessed by supervisors, altered employment conditions | District court found insufficient evidence of frequency/severity to meet the threshold | Reversed in part: hostile work environment cognizable under ADA and facts (mocking over months, supervisors aware) create triable issue; remanded |
Key Cases Cited
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (framework for burden-shifting in disparate treatment claims)
- Harris v. Forklift Sys., Inc., 510 U.S. 17 (test for objective severity/pervasiveness in hostile-work-environment claims)
- Alfano v. Costello, 294 F.3d 365 (elements of hostile work environment and single-incident/continuing-incident standards)
- Jaffer v. Hirji, 887 F.3d 111 (summary judgment standard; construing facts for nonmoving party)
- McMillan v. City of New York, 711 F.3d 120 (ADA disparate treatment prima facie elements)
- Lanman v. Johnson County, 393 F.3d 1151 (hostile work environment cognizable under ADA)
- Shaver v. Indep. Stave Co., 350 F.3d 716 (recognizing ADA hostile-environment claims)
- General Motors Corp. v. [sic] (Fourth Circuit decision recognizing ADA hostile-work-environment claims), 247 F.3d 169 (supporting ADA/Title VII parity on hostile-environment claims)