Feijoo v. Costco Wholesale Corporation

□ Southern District of Texas

ENTERED

UNITED STATES DISTRICT COURT January 30, 2023

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

Jorge Feijoo, §

Plaintiff, §

§

Vv. § Civil Action H-21-2444

§

Costco Wholesale Corporation, §

Defendant. §

MEMORANDUM AND ORDER

Pending before the court in this employment dispute is Defendant’s motion

for summary judgment, ECF No. 16. The parties consented to the jurisdiction of

the magistrate judge, and the district judge transferred the case to the undersigned

for all further proceedings, including entry of final judgment. ECF Nos. 14~—15. As

discussed below, Defendant’s motion for summary judgment is DENIED.

1. Procedural and Factual Background

Plaintiff filed this complaint on July 28, 2021. Pl.’s Compl., ECF No. 1. He

alleged disability discrimination, age discrimination, retaliation, and failure to

accommodate under the Americans with Disabilities Act (ADA),

42 U.S.C. §§ 12101-12213, the Age Discrimination in Employment Act (ADEA),

U.S.C. §§ 621-634, and the Texas Commission on Human Rights Act

(TCHRA), Texas Labor Code §§ 21.051-21.061. Pl.’s Compl. §§ 7.1-7.21.

Defendant filed a motion for summary judgment in August 2022. ECF No. 16. The

motion is fully briefed. See ECF Nos. 16, 18, 19.

On November 19, 1992, Defendant Costco Wholesale Corporation (Costco)

hired Plaintiff Jorge Feijoo as a forklift operator. See ECF No. 16-8; Pl.’s Decl.

4,1, ECF No, 18-4, During his tenure, Feijoo also held other positions at Costco,

including food court supervisor and cashier. ECF No. 16-8. In July 2016, Feijoo

transferred from Florida to the Houston area to work as a forklift operator. □□□□

ECF No, 18-7 at 4, Feijoo suffered from tinnitus, which caused significant hearing

loss. Pl.’s Decl. 43. By early 2020, Feijoo was completely deaf in his right ear and

seventy-five percent deaf in his left ear. Jd. He notified his managers of his

condition and was able to perform his job with accommodations. /d.

Here is Feijoo’s account of the events leading up to the termination of his

employment:

¢ In early 2020, Feijoo notified Costco that he planned to retire at the

age of fifty-nine and a half. Pl.’s Decl. 7 4. Sometime after notifying

Costco of his retirement plan, Feijoo received a written performance

notice for being rude, Jd. He explained to his supervisors that he was

unable to hear the employee who had been speaking to him. Jd.

e Jennifer Castro, assistant general manager at the Costco warehouse,

asked Feijoo to wear an earpiece so that she could call him over the

radio. Pl.’s Dep. at 14, 19, 30, ECF No. 18-18; see also ECF No. 18-7

at 4. Feijoo told her that wearing the earpiece would require that he

disconnect his hearing aid. Jd. Castro responded by saying that other

employees with the same issue were able to wear the earpiece. Id.

Feijoo told her that, if he had the radio in his ear, he could not hear

others in his vicinity. Jd. at 15.

« During the 2019 holiday season, Castro changed Feijoo’s schedule so

that he was working more than seven days in a row before having a

day off. Pl.’s Dep. at 16, 32. Feijoo explained that he would work.

Monday through Friday the first week of a two-week pay period, have

four days in a row off, and then work the final five days of the pay

period. 7d. at 39, The next pay period began with five workdays,

resulting in ten workdays in a row. See id. at 39-40, 97. Castro told

Feijoo that Costco was allowed to do that because of the holidays. Jd.

Castro claimed that he was the only employee with that schedule and

that, after the holidays, Castro refused to change Feijoo’s schedule

back. Jd. at 16-17. Castro told Feijoo to choose different off days than

those assigned to Feijoo for ten years. Jd. at 17, 98.

e Castro also challenged Feijoo for calling in sick too often, which

Feijoo attributed to her believing he was abusing his longtime

employment by using accrued sick leave. Pl.’s Dep. at 18. Feijoo

claimed to have been using sick leave appropriately and believed that

Castro discriminated against him based on his age and tenure. Jd. at

18-19.

e Castro also accused Feijoo of stealing and gave him a written

disciplinary notice, Pl.’s Dep. at 17. Feijoo reported that to the store

manager who “void[ed] everything and made a different write-up.” □□□

e Feijoo believed that he “was being subjected to increasingly negative

treatment” and complained to Kim Brown, vice president and regional

operations manager. PI.’s Decl. ff] 4-5; see also ECF No. 18-7 at 4.

He also informed her that his “schedule interfered with [his] Friday

doctor’s appointments.” Jd. 7 4; see also Pl.’s Dep. at 93-95. About

his appointments, Jeff Polloreno, general manager of the Costco

warehouse, told Feijoo that Costco “did not care about [his] doctor’s

appointments and [that Feijoo] needed to just schedule them around

[his] work schedule.” Pl.’s Decl. ¥ 5; see also ECF No. 18-7 at 4.

Polloreno also told Feijoo that he would move employees from

another building so that Feijoo could return to his regular working

schedule but never followed through or found another solution.

Pl.’s Dep. at 35.

e On April 4, 2020, Feijoo was operating a forklift to take down

merchandise from warehouse shelves when Chris Hall, a new seasonal

stocker who was younger than forty, confronted Feijoo about taking

down too much merchandise. Pl.’s Decl. §] 7-8. Hall “repeatedly

yelled and cursed at [Feijoo], stating that [Hall] did not want to work

anymore[] and he was ready to go home.” Jd. J 8.

¢ Feijoo got off the forklift. Pl’s Decl. | 8. According to Feijoo,

“suddenly and unexpectedly without provocation,” Hall pushed

Feijoo, who fell to the ground. Jd; see also id. J 15. Feijoo did not

return the physical contact and did not attempt to hit Hall. Jd. {J 6, 8;

see also id. § 15 (stating that Feijoo did not initiate the incident). No

one else was present when Hall pushed Feijoo. See Pl.’s Decl. {ff 11,

14 (stating that Ryan Pearce, Shaye Massey, and Sal Davide were not

present when Hall pushed Feijoo).

e After pushing Feijoo, Hall “ran away towards where the managers

were.” Pl.’s Decl. | 9, Feijoo “went in that same direction .. . to speak

with a manager as well about what happened.” /d.; see also id. ¥ 15

(stating that Feijoo was walking quickly to where the managers were

to report what had happened). Feijoo affirmed that he was not chasing

Hall. Id.

e After the incident, Feijoo went to the office and spoke with Pearce,

the manager in charge of the night crew. Pl.’s Dep. at 53-54. Feijoo

went to the breakroom to pick up his belongings before leaving, Jd. at

55. He saw Hall “in one of the corners of the break room” but did not

move toward him or yell at him. /d. at 56.

e Feijoo denies that he told either Castro or Hall that he would meet

Hall outside and denies that he waited for Hall in the parking lot. □□□□□

Decl. Jf 7, 12-13; Pl.’s Dep. at 44; but see ECF No. 16-23 at 4

(stating in additional comments that Feijoo told interviewers that he

would hurt Hall). Feijoo also denies that he ever threatened Hall or

told Castro that he would hurt Hall. Pl.’s Decl. J 12; Pl.’s Dep. at 44.

According to the investigation notes from interviews with Hall and Feijoo

and the investigation summary of witness statements, Feijoo refused to answer

questions or give a statement. See ECF No, 16-17 at 3; ECF No. 16-23 at 3. The

investigation documentation states that the accounts attributed to Feijoo were

based on “the story he told” in the interview and Feijoo’s “verbal summary of what

had happened.” ECF No. 16-17 at 3; ECF No. 16-23 at 3.

According to the interview notes, Castro and Darryl Williams interviewed

Feijoo and he stated that:

I had finished in receiving, and I was dropping pallets to stock, when

everyone was cleaning up. I asked why[,] and they told me that it was

the direction of the manager[] because they wanted to get out early. I

told them that I would be staying to stock. [Hall] came from the dock,

cussing at me, that I am not the boss, and pushed me. I kept following

him, and asking him why he pushed me. I kept following him[] and

asking him why he pushed me. Half way [sic] down the main aisle, |

noticed that [Pearce] was walking towards us. [Pearce] continued to

try and protect Chris, and I wanted answers as to why he pushed m[e].

I then went to the office with Justin [Khan] to wait to speak to

[Pearce]. In the office, I asked [Pearce] if he gave direction to finish

stocking early, so we would get out early, He said no, which didn’t

match what the crew was saying, so they were lying. I also told

[Pearce] that Chris pushed me. [Pearce] did not care, so I left to go to

the breakroom. In the breakroom, I saw [Hall] and started approaching

him again, asking him why he pushed me. When [Pearce] came into

the breakroom. I told Chris, that I [would] meet him outside.

According to Costco’s documentation of Feijoo’s verbal statement, Feijoo

stated in part that:

[Hall] came off the dock, screaming and cussing at me that I am not

the boss. I got off of my lift to talk to him, and he pushed me[] and

started to run away. I followed him[] because I wanted to know why

he pushed me....

I then went into the office with [Khan], waiting to talk to [Pearce].

When we were done, I went into the breakroom, where I saw Chris

sitting there. I asked him why he pushed me, but [Pearce] came into

the breakroom to get me. [Pearce] then told me to go home. I went to

the back to get my stuff[] and then went to the parking lot, where I

waited for Chris to come out, but when he did, he was escorted by

other employees.

ECF No. 16-17 at 3.

Hall provided a statement, stating in part that:

[Khan] (Mgr) told me to wrap it up and clean up. After cleaning up

[Feijoo] dropped 6 more pallets and started bossing ever[yJone

around. At this time I told him [Khan] said to clean up. [Feijoo] got

off the forklift and got in my face and yelled who you talking too

[sic]. He then swung at me[] and I ran away due to not wanting to lose

my job. He chased me all the way up to the front of the store. [Pearce]

tried to stop him and he still tried to fight me. Before leaving [Feijoo]

threatened me he was gonna get me outside. This is workplace

violence and not acceptible. In front of two managers.

ECF No, 16-20.

Four other employees who were in the warehouse at the time, including

Pearce and Khan, the two managers on duty, provided statements. See ECF

Nos. 16-18 (Davide’s statement), 16-19 (Massey’s statement), 16-21 (KXhan’s

statement), 16-22 (Pearce’s statement). None of the other employees saw the entire

altercation, and none observed Feijoo swing at Hall or Hall push Feijoo. See id.

Massey stated, “I heard yelling and shouting, not sure what about exactly” and that

Hall tried to walk away from Feijoo after exchanging words and then Feijoo got

off his lift to follow Hall. ECF No. 16-19. Davide stated that Feijoo “jumped off

his lift [and] went up to [Hall] ins[tligating a fight from looks of it” and that he saw

Hall duck and start running. ECF No. 16-18.

Khan’s and Pearce’s statements indicated that they were called after the

initial confrontation. ECF Nos, 16-21, 16-22. Both observed Hall walking down

the warehouse aisle with Feijoo following behind. fd. According to Kahn, Hall

claimed that Feijoo swung at him, and Feijoo claimed that Hall pushed him.

ECF No. 16-21, Both Kahn and Pearce stated that Feijoo advanced toward Hail in

the aisle and in the breakroom. ECF Nos. 16-21, 16-22. Neither statement

corroborated Hall’s assertion that Feijoo had threatened to get Hall in the parking

lot in front of the two managers. Jd.

On April 5, 2020, Costco issued Feijoo an employee counseling notice that

stated Feijoo had violated Costco’s policy against “[a]ny actual or threatened act of

viol[e]nce or physical aggression, including, but not limited to, fighting, shoving,

striking, or attempting to strike another person on Company premises or on

Company time.” ECF No. 16-25 (quoting Employee Agreement, ECF No. 16-28 at

4), The counseling notice stated that the violation resulted from Feijoo’s attempt to

strike Hall, after which Feijoo followed Hall and “continued to try and escalate the

issue more[] by yelling and coming towards the employee and managers, as if he

was going to fight them.” /d. Under the heading “Plan to correct behavior or policy

violation[,]” the counseling notice stated that Feijoo was placed on a

three-workday, unpaid suspension. Jd. In a suspension form dated April 7, 2020,

the reason for Feijoo’s suspension was stated as allowing for investigation.

ECF No. 16-24. Costco did not discipline Hall and later sent Hall a letter stating

that his complaint about Feijoo’s inappropriate conduct was valid. ECF No. 18-7 at

6; ECF No. 18-12 at 2.

On April 6, 2020, Castro requested that Feijoo be terminated stating the

cause as violation of Costco’s policy against “[ajny actual or threatened act of

violence or physical aggression, including, but not limited to, fighting, shoving,

striking, or attempting to strike another person on Company premises or on

Company time.’ ECF No. 16-27 (formally requesting Feijoo’s termination);

seealso ECF No. 18-7 at 4 (stating only that Castro was involved in the

discussions about terminating Feijoo). Castro provided the following description of

the incident:

Jorge [Feijoo] verbally abused and attempted to strike another

employee, following him down the aisle quickly[] as the employee

went to get help. He repeatedly attempted to advance towards the

employee with managers present, as they were being separated. As

Jorge was leaving, he saw the employee again in the breakroom,

cussing and advancing towards him, as if he was going to physically

hurt him.

The senior manager, repeatedly tried to separate the employees, but

Jorge would not listen.

As he was leaving the breakroom he threatened the employee, that he

would be waiting in the parking lot for him.

Jorge admitted that he did wait for the employee in the parking lot, but

the employee was escorted out by lot security.

Id.

Polloreno made the decision to terminate Plaintiff. ECF No. 18-7 at 4. The

termination form, which was signed by Polloreno with Castro as a witness stated

the reasons for termination to be violations of company policy including threats or

acts of violence, jeopardizing order/safety, and serious misconduct. ECF No. 16-26

at 2. The form detailed Feijoo’s actions that led to his termination: “Jorge engaged

in an altercation with a co-worker. He tried to physically assault the co-worker

numerous times[] and made threats that he would ‘wait for him outside.’” Jd.

Polloreno sent Feijoo a termination letter stating that Costco terminated Feijoo’s

employment because he violated “Costco’s rule prohibiting physical violence, as

well as attempting or threatening physical violence” and because he had “history of

engaging in aggressive and/or violent behavior and other serious misconduct.” Jd.

at 3. Brown and Russ Miller, executive vice president, reviewed and approved the

decision. ECF No. 18-7 at 4.

Feijoo was fifty-eight at the time of his termination on April 14, 2020. Pl.’s

Decl. 4] 1-2. After Costco terminated Feijoo’s employment, Shaye Massey, who

was twenty-five years old with no known disability, and Logan Ross, who was

thirty-four with no known disability, were promoted to parttime forklift drivers.

ECF No. 18-7 at 6.

2. Summary Judgment Standard

“Summary judgment is appropriate only if, viewing the evidence in the light

most favorable to the nonmovant, ‘the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of

law.’” Davenport v. Edward D. Jones & Co., 891 F.3d 162, 167 (Sth Cir. 2018)

(quoting Fed. R. Civ. P. 56(a)). No genuine issue of material fact exists if a rational

jury could not find for the nonmoving party based on the complete record.

McMichael v. Transocean Offshore Deepwater Drilling, Inc., 934 F.3d 447, 455

(Sth Cir. 2019) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986)).

Initially, “[t]he movant bears the burden of identifying those portions of the

record it believes demonstrate the absence of a genuine issue of material fact.”

Lincoln Gen. Ins. Co, v. Reyna, 401 F.3d 347, 349 (Sth Cir. 2005) (citing Celotex

Corp. v. Catrett, 477 U.S. 317, 322-25 (1986)). If this burden is met, the

nonmovant must then “go beyond the pleadings,” using competent summary

judgment evidence to cite to “specific facts” showing a genuine issue for trial.

McCarty v. Hillstone Rest. Grp., Inc., 864 F.3d 354, 357 (Sth Cir. 2017) (quoting

Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (Sth Cir. 2005)). The court

reviews all evidence and reasonable inferences in the light most favorable to the

nonmoving party, Tolan v. Cotton, 572 U.S. 650, 657 (2014). The court, however,

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does not have a duty “to search the record for material fact issues.” RSR Corp. v.

Int’l Ins. Co,, 612 F.3d 851, 857 (Sth Cir. 2010) (“Rather, the party opposing the

summary judgment is required to identify specific evidence in the record and to

articulate precisely how this evidence supports his claim.”). Although the court

needs to consider only the cited evidence, it is allowed to consider other materials

in the summary judgment record. Fed. R. Civ. P. 56(c)(3).

“(Cjonclusory allegations, unsubstantiated assertions, or ‘only a scintilla of

evidence’” are not enough to defeat a properly supported motion for summary

judgment. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (Sth Cir.

2007) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (Sth Cir. 1994)).

“lT|here must be evidence on which the jury could reasonably find for the

plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

4, Analysis

Defendant seeks summary judgment on Plaintiff's claims under the ADA,

ADEA, and the TCHRA for disability discrimination, age discrimination,

retaliation, and failure to accommodate. TCHRA claims are analyzed under the

analogous federal precedents interpreting the ADA and the ADEA. See Rodriguez

v. ConAgra Grocery Prods. Co., 436 F.3d 468, 473-74 (5th Cir. 2006) (analyzing

ADA and TCHRA disability-discrimination claims together under federal law);

Smith vy. AT&T Mobility Servs., L.L.C., No. 21-20366, 2022 WL 1551838, at *2

11

(Sth Cir, May 17, 2022) (analyzing ADEA and TCHRA age-discrimination claims

together under federal law).

When based on circumstantial evidence, as here, the discrimination and

retaliation claims are analyzed under the burden-shifting approach outlined in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See also Moore vy,

Burlington N. Santa Fe Ry. Co., No. 21-20103, 2022 WL 16860550, at *4 (Sth Cir,

Nov. 11, 2022) (applying the burden-shifting approach to an ADA disability

discrimination claim); Smith, 2022 WL 1551838, at *4 (applying the burden-

shifting approach to ADEA and TCHRA age discrimination claims); Lyons v. Katy

Indep. Sch, Dist., 964 F.3d 298, 304 (Sth Cir. 2020) (applying the burden-shifting

approach to an ADA retaliation claim); Bailey v. KS Mgmt, Servs., L.L.C., 35 F.4th

397, 403 (5th Cir. 2022) (applying the burden-shifting approach to an ADEA

retaliation claim).

The burden-shifting approach places the initial burden on the plaintiff to

establish a prima facie case by producing evidence meeting each element.

See Lyons, 964 F.3d at 304. The defendant must respond by providing a legitimate,

nondiscriminatory reason for its action. /d. If the employer meets its burden, the

employee must produce evidence showing that the proffered reason is pretextual.

Td.

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A. Prima Facie Cases

Feijoo first must produce evidence in support of his prima facie cases for

disability discrimination, age discrimination, and retaliation,

i. Disability and Age Discrimination

The ADA prohibits discrimination “against a qualified individual on the

basis of disability in regard to job application procedures, the hiring, advancement,

or discharge of employees, employee compensation, job training, and other terms,

conditions, and privileges of employment.” 42 U.S.C. § 12112(a); see also Tex.

Labor Code § 21.051. The ADEA similarly prohibits discrimination against an

employee based on age. Smith, 2022 WL 1551838, at *2 (citing 29 U.S.C.

§ 621{a)(1); Tex. Lab. Code § 21.001).

To state a prima facie case for discrimination under the ADA, the plaintiff

must show that he: (1) was disabled; (2) was qualified for the job; and (3) suffered

an adverse employment action based on his disability. Moore, 2022 WL 16860550,

at *4 (quoting F.F.0.C. v. LHC Grp., Inc., 773 F.3d 688, 697 (Sth Cir. 2014)). An

ADEA prima facie case for discrimination requires evidence showing that he: (1)

was older than forty; (2) was qualified for the job; (3) suffered an adverse

employment action; and (4) was replaced by or treated less favorably than

someone younger than forty. Drerup v. Consol. Nuclear Sec., LLC,

No. 21-10600, 2022 WL 3335780, at *4 (Sth Cir, Aug. 12, 2022),

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see also 29 U.S.C. § 631 (stating that the ADEA’s prohibitions are “limited to

individuals who are at least 40 years of age”).

Costco concedes that Feijoo was older than forty and, for purposes of its

summary judgment motion only, “assumes that Feijoo can establish ... that he had

a disability and was qualified for his job at Costco.” ECF No. 16 at 12 n.34. Costco

does not address any other element of a prima facie case for disability or age

discrimination. See id. at 12-15. The evidence shows that Feijoo was fifty-eight,

that he had a hearing impairment, that Costco terminated Feijoo’s employment,

and that Feijoo was replaced by two individuals under the age of forty with no

known disabilities. See Pl.’s Decl. 2-3; ECF No. 16-26; ECF No. 18-7 at 6, This

undisputed evidence satisfies Feijoo’s prima facie burden on disability and age

discrimination.

ii. Retaliation

The ADA and the ADEA make it illegal for an employer to retaliate against

an employee for engaging in a protected activity. See 29 U.S.C. § 623(d);

42 U.S.C. § 12203(a). To state a prima facie case for retaliation, the plaintiff must

produce evidence showing that: (1) he was engaged in an activity protected under

the statute; (2) he “suffered an adverse employment action[;]” and (3) there was “a

causal connection between the protected activity and the adverse action.” Lyons,

964 F.3d at 304 (addressing retaliation under the ADA); Bailey, L.1.C., 35 F 4th at

14

403 (addressing retaliation under the ADEA). A prima facie case for retaliation

under the ADA also requires the plaintiff to show that he was a qualified individual

at the time the employer took the adverse action. Moss v. Harris Cnty. Constable

Precinct One, 851 F.3d 413, 420 (Sth Cir. 2017).

As stated above, Costco assumes that Feijoo was qualified for his job,

ECF No. 16 at 12 n.34. Costco does not address any other element of a prima facie

case for retaliation. At a minimum, the evidence shows that, in the months

preceding the termination of his employment, Feijoo reported a series of negative

actions that Castro took against Feijoo after he refused to wear an earpiece.

Decl. $9] 4-5; Pl.’s Dep. at 14-17. Sometime after notifying Costco of his

retirement plan, Feijoo received a written performance notice for being rude.

Pl.’s Decl. 4 4. Costco terminated Feijoo’s employment within months of these

events. See ECF No. 16-26 at 2. Because Costco did not challenge the evidence in

support of a prima facie case of retaliation, the court finds that Feijoo met his

burden.

B. Legitimate, Nondiscriminatory Reason

The burden shifts to Costco to state a legitimate, nondiscriminatory reason

for terminating Feijoo’s employment. See Moore, 2022 WL 16860550, at *4;

Smith, 2022 WL 1551838, at *4, Costco’s proffered reason in its summary

judgment motion is that Feijoo “attempted to physically attack his coworker[.]”

15

ECF No. 16 at 5. In the termination paperwork, Costco asserted that Feijoo had

violated Costco’s policy against actual or threatened acts of violence or physical

ageression. See ECF No. 16-25 (stating this reason in the employee counseling

notice); ECF No. 16-27 (stating this reason in the request for termination). The

termination form similarly stated the reason for terminating Feijoo’s employment

as violations of company policy against threats or acts of violence, jeopardizing

order/safety, and serious misconduct. ECF No. 16-26 at 2. The letter to Feijoo

added that Feijoo had “a history of engaging in aggressive and/or violent behavior

and other serious misconduct.” Jd. at 3.

Feijoo does not argue that Costco has not stated a legitimate,

nondiscriminatory reason.

C. Pretext

The burden shifts back to Feijoo to produce evidence that Costco’s stated

reason was not the real reason but was pretext for discrimination and retaliation.

See, e.g., Lyons, 964 F.3d at 304, Close temporal proximity is sufficient to satisfy

the prima facie case but not to demonstrate pretext. Jd. at 306-07. However,

sufficient evidence that an employer’s proffered reason is false in combination

with the establishment of a prima facie case “may permit the trier of fact to

conclude that the employer unlawfully discriminated.” Sears yv. Zions

Bancorporation NA, No. 21-10448, 2022 WL 1800779, at *4 (Sth Cir. June 2,

16

2022) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148

(2000)). The plaintiff need not prove pretext at the summary judgment stage but

need only establish a genuine issue of material fact. Caldwell v. KHOU-TV,

850 F.3d 237, 242 (Sth Cir, 2017).

Costco argues that Feijoo cannot show: (1) that Costco’s stated reason for

terminating his employment was false; (2) that Costco failed to follow its policy on

workplace violence or threats of violence; or (3) that any other employee who

engaged in similar conduct was not terminated, ECF No. 16 at 6, 13-15. Related to

Costco’s first argument, it also argues that Feijoo has not presented any evidence

showing that Costco did not reasonably believe that Feijoo violated its policy and

that Costco acted in good faith on that belief. /d. at 6 (citing Cervantez v. KMGP

Servs. Co,, 349 F. App’x 4, 10 (Sth Cir. 2009)); see also ECF No. 16 at 14.

The question on summary judgment is not what really happened on the night

of April 4, 2020 or what Feijoo now testifies that he did or did not do. The question

is whether the information management had about the incident gave rise to a

reasonable belief that Feijoo violated Costco’s policy against actual or threatened

acts of violence or physical aggression.

The factual discrepancies between Feijoo’s and Hall’s accounts of happened,

as reported to Costco, are genuine and material, precluding summary judgment.

The evidence is clear that management was aware that Feijoo and Hall each

17

accused the other of engaging in aggressive conduct. Feijoo reported that Hall

physically assaulted him by pushing Feijoo to the ground. Hall reported that Feijoo

threatened physical assault by swinging and missing Hall. Feijoo reported that he

followed Hall toward the managers to find out why he had pushed Feijoo. Hall

reported that Feijoo was chasing Hall.

No other employee witnessed the initial altercation, and their statements lack

any real evidence to support Costco’s decision to favor Hall’s account over

Feijoo’s. See ECF Nos. 16-18, 16-19, 16-21, 16-22, Although Davide stated that he

saw Hall “duck and start running from [Feijoo],” neither he nor any other

employee claimed to have seen Feijoo swing at Hall or Hall push Feijoo to the

ground. See id. The other employees reported little more than hearing Feijoo and

Hall yelling at one another and observing Feijoo following Hall. See id.

The court has reviewed the video more than once and finds its significance

unclear, The video did not capture the initial altercation. See ECF No. 16-30, It

shows Feijoo following Hall from the left of the screen, while Hall seems to be

telling a manager ahead of him (screen right) what happened. /d. Hall passes the

manager who is now between Feijoo and Hall. /d. The manager puts his arm out

toward Feijoo to stop him. Jd. Feijoo stops. fd. The manager backs Feijoo up

further to the left and turns to the right to address Hall. 7d. Hall seems to be saying

something to the manager. Jd. A different manager comes onto the screen from the

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right. Id. The second manager seems to tell Hall to move further to the right. The

first manager appears to be talking to Feijoo while Hail stays there. Jd. The first

manager seems to tell Feijoo to leave. Jd. Feijoo and Hall now have a display bin

between them. /d. Instead of leaving, Feijoo walks around the bin toward Hall, and

Hall backs away keeping the bin between them. /d. Feijoo seems to check himself,

backs up the way he came, goes around the other side of the bin where Hall is, but

instead of further approaching Hall, he leaves the scene to the right. 7d Hall

remains on the scene and the video ends. Id.

On the one hand, Feijoo and Hall obviously had a confrontation and

managers intervened to break it up. Also, Feijoo can be seen perhaps not following

instructions. But it does not show anyone trying to hurt anyone or anyone trying to

restrain Feijoo. It is open to a variety of inferences, including that Feijoo exhibited

no actual or threatened acts of violence or physical aggression. The court cannot

simply credit Hall’s version of what the video shows over Feijoo’s. Both versions

of events are plausible.

If Castro relied on the witnesses’ statements and interviews in

recommending termination and Polloreno relied on Castro’s recommendation in

deciding to terminate Feijoo, a jury could find that the evidence did not give rise to

a reasonable belief that Feijoo violated Costco’s policy against actual or threatened

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acts of violence or physical aggression and that Costco accepted the version of the

younger, not disabled employee over Feijoo’s version.

The court must credit evidence in favor of the plaintiff over contradictory

evidence on key factual conclusions. See Tolan, 572 U.S. at 657. The facts before

the court, taken in favor of Feijoo raise jury questions, not only on what actually

happened, but on whether Costco had any basis for reasonably believing that

Feijoo and only Feijoo violated Costco’s policy. Thus, Feijoo’s evidence in support

of his prima facie cases and the above evidence is sufficient to raise a fact issue on

pretext. Because this finding alone warrants the denial of summary judgment on

pretext, the court does not address the parties’ other arguments.

Defendants’ summary judgment motion is denied on the disability

discrimination, age discrimination, and retaliation claims.

C, ADA Accommodation

The ADA prohibits employers from failing to make “reasonable

accommodations to the known physical or mental limitations of an otherwise

qualified individual with a disability[.]” 42 U.S.C. § 12112(b)(S)(A); see also

Clark vy. Champion Nat’l Sec., Inc., 952 F.3d 570, 587 (Sth Cir, 2020). To state a

claim for failure to accommodate, “the plaintiff must show (1) [he] is a qualified

individual with a disability; (2) the disability and its consequential limitations were

known by the covered employer; and (3) the employer failed to make reasonable

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accommodations for such known limitations.” Drake v. Spring Indep. Sch. Dist.,

No. 20-20376, 2021 WL 3176081, at *5 (Sth Cir. July 27, 2021) (quoting Moss,

851 F.3d 417). The definition of “reasonable accommodations” includes “[j]ob

restructuring; part-time or modified work schedules; . . . acquisition or

modifications of equipment or devices; ... and other similar accommodations[.]”

29 C.F.R. § 1630.2(0)(2)G)); see also 42 U.S.C. § 12111(9)(B). When an employee

“presents a request for an accommodation, the employer is required to engage in

[an] interactive process so that together they can determine what reasonable

accommodations might be available.” Gonzalez v. United Parcel Serv., 777

F, App’x 735, 739 (Sth Cir. 2019) (emphasis in original) (quoting EEOC v.

Chevron Phillips Chem. Co., 570 F.3d 606, 622 (Sth Cir. 2009), abrogated in part

on other grounds by LHC Grp., 773 F.3d 688).

Costco argues only that Feijoo did not request an accommodation.

ECF No. 16 at 15. The evidence shows that Feijoo told Castro that he could not

wear an earpiece because it interfered with the hearing aid in his only hearing ear

and that he requested from Castro a schedule change so that he could attend doctor

appointments on Fridays. See Pl.’s Decl. | 4; Pl’s Dep. at 14-15. About the

earpiece, Feijoo testified that Castro pushed back and thereafter took several

negative actions against Feijoo including changing his schedule. Pl.’s Dep. at 14.

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About the appointments, Feijoo testified that Polloreno told Feijoo that he needed

to schedule his appointments around his work schedule. Pl.’s Decl. □ 5.

Costco argues only that Feijoo “clearly knew the process . . . to request time

off for medical appointments.” ECF No. 16 at 15 (citing ECF Nos. 16-9~16-14,

five doctors’ notes requesting leave under the Federal Medical Leave Act and one

doctor’s note stating that Feijoo needed to avoid working in a cold environment).

Costco presents no evidence or argument showing that ADA requests must be

made in a particular way or that Costco notified Feijoo of the proper procedure

when he raised these issues. Indulging all inferences in Feijoo’s favor, the court

finds that Feijoo requested accommodations.

Because Feijoo made requests for accommodations, the ADA required

Costco to engage in an interactive process to determine reasonable

accommodations. Costco does not present evidence showing that it met that

obligation. Thus, a fact issue exists whether Costco failed to accommodate Feijoo’s

limitations. Costco also argues that Feijoo’s deposition testimony shows that he did

not need the requested accommodation for medical appointments. ECF No. 16 at

16. To allow after-the-fact justification for not engaging in the interactive process

would undermine the very purpose of requiring an interactive process to enforce

the ADA’s accommodation provisions.

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Defendants’ summary judgment motion is denied on the failure to

accommodate claim.

5. Conchuision

The summary judgment record raises genuine issues of material fact as to all

of Feijoo’s claims. Accordingly, Defendants’ motion for summary judgment is

DENIED.

Signed at Houston, Texas on January ae , 2023,

Peter Bray

United States Magistrate Judge

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