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Fox v. Costco Wholesale Corp., No. 17-0936 (2d Cir. Mar. 6, 2019)

The Second Circuit joins other courts in holding that the Americans With Disabilities Act (ADA) recognizes a "hostile work environment" theory, returning a case involving alleged taunting of an employee for his Tourette's Syndrome and Obsessive‐Compulsive Disorder (OCD) symptoms.

Fox v. Costco Wholesale Corp., No. 17-0936 (2d Cir. Mar. 6, 2019): Plaintiff Fox had worked at a Costco warehouse (later as cashier and greeter) since 1996. In a pattern often repeated in ADA cases, things allegedly went along decently until there was a change in managers. "In June 2013, the Holbrook Costco got a new General Manager ... ('Resnikoff')" and "Assistant Manager ... Johnson reported to Resnikoff."

Fox was issued four reprimands by these managers in 2013-14 for alleged work violations, two of which involved allegedly too-personal comments to customers. The last of these resulted in a three-day, unpaid suspension and a reassignment to assistant cashier in lieu of termination. At that point, Fox took medical leave; upon his return, the only job supposedly open for him was stocker, which he refused to take.

Additionally, Resnikoff allegedly "made disparaging comments regarding Fox's disability, including 'I cringe every time I walk by you' and '[Y]ou finally did it.'"

Coworkers also taunted him.

"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."

These mocking comments went on for months and were allegedly audible to the managers. He also allegedly ran into difficulties with store supervisors Campbell and DiCandia about getting breaks for accommodation purposes.

Fox eventually complained to the company CEO Jelinek, who "commenced an investigation into Fox's complaints at the Holbrook store .... At the end of the investigation, Campbell was transferred to another position. It is unclear if DiCandia received any sanctions. Fox does not dispute that his 'concerns were put at ease' by this investigation." Nevertheless, "Fox claims that after he sent the e‐mail to Jelinek and that investigation took place, Costco employees continued to treat him poorly because of his disability." The post-complaint actions included various alleged reprimands and denial of time sheets.

Fox alleged discrimination, retaliation, harassment, and reasonable accommodation under the ADA and New York state law; the panel substantially affirms dismissal of these claims on summary judgment, but reverses on harassment.

On the claims other than harassment, the panel gives them only a little discussion. It finds that Costco's actions were not materially adverse, i.e., "did not constitute a demotion, decrease in benefits, or decrease in salary," and not shown to be motivated by disability or retaliation. In the accommodation claim, there was no evidence that Fox requested an accommodation for his disability or that Costco was ever on notice that he needed one.

On the harassment claim, the panel holds that Fox presented a genuine dispute of material fact. It first holds, consistent with other circuits, that the ADA contemplates a "hostile work environment" theory. "'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."

It then reverses the district court's determination that the alleged harassment was not objectively severe or pervasive. The district court believed that the plaintiff had to proffer "evidence regarding the number of times the comments were made per shift, week and/or month" to show that the hostile comments "pervaded Fox's working environment." But the panel holds that the plaintiff is not so required. Because the plaintiff "identified specific comments-his co‐workers mocking his Tourette's by repeating "hut‐hut‐hike," presumably while touching the floor-and because he testified that 'whenever I said [the F word], they said 'hut‐hut‐hike'' for 'months and months,' Fox has provided evidence sufficient to meet his burden to demonstrate pervasiveness."

The panel concludes: "[W]e note that teasing in the workplace is not uncommon, and in most instances probably not actionable. Stuttering is mimicked; the overweight are called names; acne, baldness, and height are mentioned for a laugh. All of this can be hurtful. But mockery of overt features does not necessarily support damages, and the fact that Fox was mocked for the manifestations of his disability rather than other overt features does not bear on whether the workplace environment was objectively abusive. Here, however, viewing the evidence in the light most favorable to Fox, Fox has raised an issue of fact as to whether the frequency and severity of the mockery rise to the level of an objectively hostile work environment."

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