Armijo v. Costco Wholesale Warehouse, Inc.

JUSTIN WILLIAM ARMIJO, Plaintiff, v. COSTCO WHOLESALE WAREHOUSE, INC., Defendant.

Civ. No. 19-00484-ACK-RT

United States District Court, D. Hawaii

April 28, 2022

ORDER GRANTING DEFENDANT COSTCO'S MOTION FOR SUMMARY JUDGMENT (ECF NO. 120)

ALAN C. KAY UNITED STATES DISTRICT JUDGE

Pro se Plaintiff Justin Armijo brought this lawsuit against his employer Defendant Costco Wholesale Corporation (“Costco”) asserting claims for, inter alia disability, sex, and race discrimination and retaliation. Costco has now moved for summary judgment, ECF No. 120. For the reasons detailed below, the Court GRANTS Costco's motion.

BACKGROUND

For purposes of this Order, this Court uses Costco's Concise Statements of Fact (“CSF”), ECF No. 121, to establish the facts in this case. Although Armijo did submit an Opposition, he did not include a CSF. See Local Rule 56.1(g) (“[T]he moving party's concise statement will be deemed admitted unless controverted by a separate concise statement of the opposing party.”). While the Court acknowledges that Armijo is proceeding pro se, all material facts in Costco's CSF are deemed admitted because Armijo did not timely file a CSF. See Id. Moreover, Armijo failed to submit any admissible evidence in opposition to Costco's summary judgment motion.^[1]

I. Factual Background

Costco first hired Armijo on October 14, 2014 as a seasonal Loss Prevention clerk in Kailua-Kona. Def. Ex. A-4; Def. Ex. A (Armijo Depo. I) at 13:22-24. Armijo later became a non-seasonal part-time employee. See Def. Ex. A-4. Armijo's duties as a Loss Prevention clerk included identifying and investigating theft threats. See Def. Ex. E. After Costco determined the Loss Prevention position “was not an effective position” and eliminated it in late 2015, Armijo became a Member Service Assistant in January of 2016. Chaparro Decl. ¶¶ 10-11. In this position, Armijo provided after-hours outside security, where his shifts generally ran 1-3 hours after the warehouse closed. Id. ¶ 11. Prior to his injury, Armijo testified that he typically worked four six-hour shifts and one eight-hour shift a week. Def. Ex. B (Armijo Depo. II) at 122:6-21.

On May 28, 2016, Armijo injured himself while lifting a shaved ice machine at work. Def. Ex. A (Armijo Depo. I) at 57:21-58:24. Armijo did not report the incident to anyone on that day and instead “tried to tough it out.” Def. Ex. B (Armijo Depo. II) at 120:4-15. On July 25, 2016, Armijo reported his workplace injury to his immediate supervisor Randall Lockwood. Def Ex. A (Armijo Depo. I) at 50:24-25; Def. Ex. B (Armijo Depo. II) at 120:4-15. According to Armijo, Lockwood “brushed it off” and had him fill out a workers' compensation form, which he called a “bumps and bruises report.” Def. Ex. B (Armijo Depo. II) at 120:12-15; Def. Ex. A (Armijo Depo. I) at 50:24-25. Costco opened a workers' compensation claim for the matter, which was overseen by a third-party company Helmsman Management Service. Chaparro Decl. ¶ 13. Helmsman Senior Claims Specialist Esther Tugurian was assigned to Armijo's case. Id.

On July 26, 2016, Armijo's doctor, Julia Krechter, restricted him to “[s]tanding and walking no more than 1 hour a shift - not consecutive walking and standing, [s]tanding for not more than 15 minutes at a time” through August 23, 2016. Def. Ex. A-8. As a result, Costco offered Armijo modified light duty through the Costco Interim Community Employment Program (“ICEP”). Chaparro Decl. ¶ 14; Def. Ex. A-10. Armijo participated in ICEP from August 25, 2016 through September 17, 2016, Chaparro Decl. ¶ 16, when he was removed from the program to return to work with Costco. Def. Ex. B (Armijo Depo. II) at 133:4-17. On August 16, 2016, Dr. Krechter wrote that Armijo's “only work restriction” was to work no more than four hours per workday. Def. Ex. D-65; see Chaparro Decl. ¶ 17. Based on that note, Costco determined it could accommodate Armijo's restrictions, and as a result, Armijo was scheduled to work on September 19, 2016. Chaparro Decl. ¶ 18.

Armijo did not report to work on September 19, 2016, and instead submitted to Costco a note from Dr. Chang-Stroman recommending that he see an orthopedic doctor. Id. ¶ 20; see Def. Ex. G. Because the note from Dr. Chang-Stroman did not indicate that Armijo could not return to work, the warehouse's general manager-Angelina Chaparro-asked Armijo if he was able to return to work. Chaparro Decl. ¶ 20. Armijo responded that he did not know, he would get a second opinion, and he would see an orthopedist. Id.; see Def. Ex. H.

On November 2, 2016, Dr. Henry Daniels restricted Armijo to any job that did not require “repetitive squatting, kneeling, or stair climbing.” Def. Ex. C-31. The next day, Dr. Chun submitted a recommendation for “continued physical therapy and a return to work full duty.” Def. Ex. D-64. Accordingly, Costco scheduled Armijo to work on December 5, 2016. Shimaoka- Lopez Decl. ¶¶ 10-11. Armijo returned to work that day and continued to work through March 2017. Id. ¶ 12.

On March 13, 2017, Costco received a note from Dr. Daniels stating that Armijo should return to his regular work shifts and hours. Id. ¶ 14; see Def. Ex. B-16. Because the note did not clearly indicate what schedule Armijo could work, the general manager at this time-Lianne Shimaoka-Lopez-coordinated with Tugurian to obtain more information regarding Armijo's work restrictions. Shimaoka-Lopez Decl. ¶ 15.

On March 18, 2017, Dr. Daniels submitted another note to Costco indicating that Armijo should resume the work schedule in place at the time of his injury. Id. ¶ 16; see Def. Ex. D-61. Four days later, Dr. Daniels submitted an additional note indicating a work schedule with specific start and end times that Armijo could work. Shimaoka-Lopez Decl. ¶ 16; see Def. Ex. L. Shimaoka-Lopez discussed these notes with Tugurian and determined that Costco did not need to accommodate the specific start and end times that Dr. Daniels indicated, but Costco could accommodate a specific number of work hours per day according to Armijo's medical needs. Shimaoka-Lopez Decl. ¶ 16. When Costco did not receive a further note from Dr. Daniels regarding Armijo's ability to work a specific number of hours a day, Armijo remained scheduled to work eight-hour shifts in March 2017. Id. ¶ 19.

On May 12, 2017, Armijo received a counseling notice for failing to respond to multiple calls on his radio while he was performing outside security. Def. Ex. B-13. Armijo disputed in his deposition that this incident occurred. See Def. Ex. B (Armijo Depo. II) at 99:7-102:8. On May 22, 2017, Costco received a medical note stating that Armijo could work six-hour shifts until his next doctor's visit and was restricted to “light duty.” Def. Ex. D-62; Shimaoka-Lopez Decl. ¶ 21. After this note, Armijo was not scheduled for any eight-hour shifts. Shimaoka-Lopez Decl. ¶ 21.

Also on May 22, 2017, Armijo was asked to help clean up a drink spilled by a customer at the warehouse. Komura Decl. ¶ 9. When Armijo refused and called maintenance to clean up the spill instead, his supervisor-Kim Bryant-“shoved cleaning supplies and products into [Armijo's] body” and asked him, “what, you can't kneel?” in front of 10-15 people. Def. Ex. B (Armijo Depo. II) at 114:11-115:10; Def. Ex. C (Armijo Depo. III) at 239:19-7.

The next day, Armijo met with the assistant general manager, Ann Komura, to discuss his work restrictions. Komura Decl. ¶ 9. Komura discussed the note from Dr. Daniels which indicated that Armijo must “avoid repetitive squatting, kneeling, and stair climbing.” Id. Komura pointed out that the note only appeared to restrict repetitive squatting, kneeling, and stair climbing. Id. Because the note was not clear on whether Armijo could bend at all, Komura asked Armijo to obtain further information from his doctors on the issue. Id. ¶ 10. At this meeting, Komura also provided Armijo with an Employee Information Change form, which corrected an internal payroll error that erroneously listed Armijo as a Loss Prevention clerk ($14.00 hourly rate), with a higher pay rate than his current position as a Member Service assistant ($13.50 hourly rate). Id. ¶ 11. Because of this mistake, Armijo was overpaid by $213.30, but Costco forgave the overpayment. Takahashi Decl. ¶ 12.

According to Armijo, at this meeting he asked Komura, “do you want me to draw a circle around [the doctor's note] with a crayon so you get it, ” at which point Komura allegedly “got red in the face.” Def. Ex. B (Armijo Depo. II) at 159:8-19. Armijo claims Komura was “borderline yelling” and that he was “unlawfully terminated” at this meeting, id. at 162:20-25, 163:6-14, 164-165:12, but Komura stated that she did not terminate him and did not have the authority to do so. Komura Decl. ¶ 13.

On June 10, 2017, Costco received a note dated May 26, 2017 indicating that Armijo was released to work, but could not push/pull or lift/carry any weight, and could not squat, kneel, or climb stairs through June 29, 2017. Def. Ex. B-19. Because Costco could not accommodate that restriction in any positions for which Armijo was qualified, Armijo was granted a leave of absence in accordance with Costco's policies regarding medical leave. Shimaoka-Lopez Decl. ¶ 23.

Komura sent Armijo a letter dated June 28, 2017 on Shimaoka-Lopez's behalf informing him of the approved leave, and requesting that he provide updated medical documentation regarding his ability to work and any work restrictions by July 17, 2017. Def. Ex. B-20; Shimaoka-Lopez Decl. ¶ 23; Komura Decl. ¶ 14. Armijo confirmed in his deposition that he received the letter. Def. Ex. B (Armijo Depo. II) at 156:8-22.

Komura called Armijo on July 20, 2017 to review his job accommodation and transitional duty checklist, and his work...