Reza vs, Costco Wholesale Corporation
Filing
92
MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 9/30/2014: Civil case terminated. Mailed notice(wp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
EMMA REZA,
Case No. 12 C 5736
Plaintiff,
Hon. Harry D. Leinenweber
v.
COSTCO WHOLESALE CORPORATION,
Defendant.
MEMORANDUM OPINION AND ORDER
I.
BACKGROUND
The Defendant, Costco Wholesale Corporation (“Costco”), is a
membership warehouse club, with hundreds of locations worldwide,
one of which is located on Clybourn Avenue in Chicago’s Lincoln
Park neighborhood.
Each warehouse is operated by a store manager.
The Plaintiff, Emma Reza (“Reza”), was an employee of Costco at the
Clybourn Avenue warehouse from November 16, 2010 until October 18,
2013 when she was terminated.
Her duties included working with
cashiers by helping lay member merchandise on the conveyor belt,
packing member orders in boxes, and reloading the orders onto
separate carts or conveyances after the merchandise had been
scanned by the cashier.
She also did a myriad of other tasks in
the warehouse.
On
June
4,
2011,
Reza
suffered
an
injury
at
work.
She
apparently was unable to return to work for medical reasons so she
was terminated on October 18, 2013.
She pursued a workers’
compensation claim as a result of her injury.
She does not argue
that her termination was unlawful.
Each employee of Costco, including Reza, receives a document
entitled
“Employee
Agreement”
(the
“Agreement”)
upon
hire.
According to its Table of Contents, the Agreement covers such
subjects
as
personnel
procedures
and
policies,
employee
classifications, compensation and payroll, benefits, medical and
family leave, and career opportunities.
For the purposes of this
case, the Section entitled “Personnel Procedures and Policies is
the relevant section.
entitled
“Open
Door
And among this Section, the Subsections
Policy/Resolution
of
Disagreements”
(Section 2.1) and “Anti-Harassment, Discrimination or Retaliation”
(Section 2. 4) are the relevant parts.
The
Open
Door
Policy
section
applies
to
“work
related
disagreements” and instructs the employee that they have a number
of options concerning whom to contract in case of a workplace
disagreement starting with the employees own Supervisor/Manager,
and depending on an ascending levels to the Location Manager, the
Regional/Senior
Executive
Vice
President,
Home
Office
Resources Department, and finally the Ombud’s Office.
Human
The whole
purpose of this section is to assist Costco employees in problem
resolution.
The Agreement contains an 800 number for use by the
employee in reporting.
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In addition to the foregoing, Costco’s anti-harassment policy
specifically prohibits “all forms of harassment based on any
protected status, including race, color, national origin, ancestry,
sex, sexual orientation, gender identity, religion, age, pregnancy,
disability, work-related injury, covered veteran status, political
ideology, genetic information, marital status, or . . . any other
protected
status.”
Section
2.5,
Reporting
Harassment,
Discrimination, or Retaliation, specifically requires the employee
to report any instances of harassment.
The reporting requirement
includes conduct involving “anyone with whom an employee comes into
contact as part of the employee’s job:
managers, supervisors, co-
workers, members, independent contractors, supplies or others.”
The employee is insured that any such complaints will be kept
confidential,
investigation.
except
as
necessary
in
the
pursuance
The Section ends with the injunction:
of
an
“Again you
are required to report all incidents of harassment, discrimination,
retaliation or other inappropriate behavior as soon as possible.”
Reza received a copy of the Agreement during her new hire
orientation.
She initially received an English version but later
requested and received a Spanish version.
She understood that the
Agreement contained Costco’s employment policies.
She was further
aware of the 800 number which she could use in reporting.
Between July 2006 and April 2012, Brian Thomas (“Thomas”) was
the General Manager at the Clybourn warehouse. Reza claims that on
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approximately five (5) occasions during the Spring of 2011 Thomas
made unwelcome physical contact with her.
in April 2011.
The first occasion was
She had brought Thomas a letter regarding some
problems she had with two female supervisors, and a few days later
she met with Thomas in his office to discuss the letter.
At the
conclusion of the meeting she reached out her hand to Thomas, who
took it in his hand and rubbed it for a few seconds and made the
statement that he liked her.
She made no complaint.
A few weeks later, while she was working on the floor, Thomas
placed his hands on her shoulders for a few seconds and smiled at
her.
No words were exchanged.
She again made no complaint.
Toward the end of May 2011, while Reza was assisting at the cash
register, Thomas placed his hands on her shoulders and walked her
to his office.
His hands were on her shoulders while they took
about three or four steps.
While inside the office he grabbed her
shoulders and maneuvered her to a chair where she was seated.
does not recall what they talked about in the office.
She
She did,
however, complain to Thomas about the touching, by telling him that
it was “unethical.”
In early June, just prior to her work injury, Reza went to
Thomas
to
complain
supervisors.
about
the
conduct
of
one
of
her
female
At her request they spoke outside his office.
When
Thomas appeared not to be overly sympathetic to her, she threatened
to go over his head to Human Resources with her complaint.
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She
then testified that he, with a “sarcastic smile,” put his had on
her shoulder and told her to relax and told her to be careful what
she was going to do and again told her that he liked her.
He then
touched her right breast with his open hand for about two seconds
and then touched her left breast with his open hand for about one
second.
She made no complaint.
Her final allegation of physical contact occurred in July
2011.
While she was off work as a result of her injury, she went
to the warehouse to look for a co-worker who allegedly witnesses
the June contact.
While looking at the work schedules in the lunch
room, Thomas approached her from behind and rubbed her back and
shoulder for one or two seconds.
could return to work.
He said “hi” and asked her if she
She angrily told him not to touch her again.
Her other complaints included several other statements by
Thomas that he “liked her,” and questions he asked her, which she
considered personal, such as what kind of wine she liked, what was
her favorite color, and how did she meet her husband.
She
testified that at first she did not believe these comments were
sexual in nature but on reflection she thought that they were.
Despite her concerns about Thomas, she continued to shop at the
Clybourn Costco store.
Reza did not report any of these occurrences to Costco other
than
if
scolding
considered
Thomas
reporting.
on
The
the
only
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above
person
two
she
occasions
told
can
about
be
her
complaints was after the fact to a co-employee, Ann Krause, on an
occasion while she was shopping at Costco in July 2011.
a co-employee and not a supervisor.
Krause was
Costco did not hear about the
alleged harassment until it received a copy of her charge of
discrimination with the Illinois Department of Human Rights.
She
did testify that her husband attempted to contact Costco’s Human
Resources Department but he refused to leave contact information so
no one responded to his call.
investigation.
Costco immediately initiated an
As a part of the investigation, Costco’s counsel
informed Reza that an investigation was underway and attempted to
interview her.
She repeatedly refused to participate.
Because of
her refusal to participate, the charges were not sustained.
Reza filed her charge with the Illinois Department of Human
Rights on August 2, 2011, and she received a Right-to-Sue letter on
June 15, 2012.
On July 20, 2012, she filed a single count
Complaint against Costco, alleging sexual harassment in violation
of Title VII.
grounds:
Costco has moved for summary judgment on two
first, that she cannot show that her work environment,
sexual harassment claim was subjectively hostile or sufficiently
severe or pervasive; and, second, Costco has established as a
matter of law the affirmative defense of reasonable case to prevent
and correct promptly any sexually harassing behavior.
The
Court
finds
that
Reza
has
established
neither
a
subjectively nor an objectively hostile work environment at Costco.
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Because
of
this
finding,
the
Court
need
not
reach
Costo’s
affirmative defense of reasonable care. The Court therefore grants
Costco’s Motion for Summary Judgment.
II.
DISCUSSION
To withstand summary judgment a plaintiff must prove that,
first,
she
was
subject
to
unwelcome
harassment;
second,
the
harassment was based on her sex; third, the sexual harassment
unreasonably interfered with her work performance by creating an
intimidating, hostile or offensive work environment that affected
seriously the psychological well-being of the plaintiff; and,
forth, there is a basis for employer liability.
McPherson v. City
of Waukegan, 379 F.3d 430, 438 (7th Cir. 2004).
The severity and
pervasiveness of the harassment must actually alter the conditions
of a plaintiff’s employment and create an abusive work environment
and it must be both objectively and subjectively offensive, i.e.,
one that a reasonable person would find both hostile or abusive and
one that the plaintiff did in fact perceive to be so.
Here,
Reza
has
subjective hostility.
failed
to
establish
either
Id.
objective
or
First, while perhaps boorish, Thomas only
touched Plaintiff’s body four times, once on the hands, two on her
shoulders, and once on her breasts.
Her other complaints involve
rather isolated comments such as he “liked her,” the type of wine
she preferred, and her favorite color.
If she had felt that these
actions were truly offensive to her, she would have complained to
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someone other than Thomas.
The only evidence that she actually
complained to anyone involved with Costco were her angry responses
to Thomas on two occasions, the last of which was after she had
ceased work as a result of her injury.
While an argument can be
made that Thomas might have been expected to continue or escalate
his misconduct if she had remained at Costco, the fact of the
matter is that she had no further contact with Thomas after her
last complaint in July 2011.
Perhaps this is solely because she
did not return to work but this requires speculation and a claim of
hostile work environment based on conduct that might have occurred.
Further evidence that Reza did not consider the environment hostile
within the Title VII definition is that she did not complain to
anyone (other than Thomas) while she was working at Costco.
was
She
aware of the correct procedure to be followed because she
acknowledged
receiving
and
reading
the
reporting
requirements
contained in the Agreement, which she utilized on the occasion
where she
complained
to
Thomas
about
the
incident
of
racial
hostility of another Costco employee.
As far as the objective element of a hostile work environment,
there are a host of cases from the Seventh Circuit and this
district that found the objective element lacking on facts either
similar or more severe than faced by Reza.
See, Weiss v. Coca-Cola
Bottling Co. Of Chicago, 990 F.2d 333 (7h Cir. 1993); Strickland v.
First Bankshares, Inc., No. 2:06-cv-199, 2008 U.S. Dist. LEXIS
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31549 (N.D.Ind. Apr. 15, 2008); Mosher v Dollar Tree Stores, Inc.,
No. 98 C 2295 U.S. Dist. LEXIS 93 (N.D.Ill. Jan. 28, 2000); Kelly
v.
United
Road
Towing
Service,
2009
U.S.
Dist.
LEXIS
19536
(N.D.Ill. March 12, 2009). Consequently, the conduct of Thomas was
neither subjectively hostile to Reza nor objectively hostile under
Title VII law.
Since the Court did not find a hostile environment, the Court
need not decide whether the anti-harassment procedures established
by Costco in its Employee Agreement were adequate to provide Costco
with the defense of reasonable care as established by the Supreme
Court in Burlington Industries v. Ellerth, 524 U.S. 742 (1998).
III.
CONCLUSION
For the reason stated herein, Costco’s Motion for Summary
Judgment is granted.
The case is dismissed with prejudice.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Date:9/30/2014
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