Plaintiff’s ADA Disability Disability Discrimination Claim Survives Summary Judgment Summary Judgment Claim

From Fox v. Costco Wholesale Corporation, 2019 WL 1050643, at *7 (C.A.2 (N.Y.), 2019):

The district court demanded too much of Fox. Fox is not required to list the shift, week, or month to be able to present this issue to a jury. See Aulicino v. N.Y.C. Dep’t of Homeless Servs., 580 F.3d 73, 84 (2d Cir. 2009). Because Fox 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. See id. On Fox’s evidence at this stage, we hold, a reasonable fact finder could conclude that the “hut-hut-hike” comments made for months by co-workers when Fox experienced verbal tics were sufficiently severe and pervasive to change the conditions of Fox’s employment. See Perry, 115 F.3d at 149. Since the phrase “hut-hut-hike” is borrowed from football, and Fox 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.

In addition, and crucial to our analysis, Fox introduced evidence that his supervisors witnessed this conduct for “months and months” and did nothing, demonstrating a specific basis for imputing the objectionable conduct to Costco. Alfano, 294 F.3d at 373. Thus, Fox has met his burden to defeat Costco’s motion for summary judgment on his hostile work environment claim.

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