IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

EMMA REZA,

Plaintiff,

v.

COSTCO WHOLESALE CORPORATION,

Defendant.

Case No. 12 C 5736

Hon. Harry D. Leinenweber

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. And among this Section, the Subsections

entitled “Open Door 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 Human

Resources Department, and finally the Ombud’s Office. 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, coworkers, members, independent contractors, supplies or others.” 

The employee is insured that any such complaints will be kept

confidential, except as necessary in the pursuance of an

investigation. The Section ends with the injunction: “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. The first occasion was

in April 2011. 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. She

does not recall what they talked about in the office. 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 about the conduct of one of her female

supervisors. 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. She

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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. He said “hi” and asked her if she

could return to work. 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 Thomas on the above two occasions can be

considered reporting. The only person she told about her

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complaints was after the fact to a co-employee, Ann Krause, on an

occasion while she was shopping at Costco in July 2011. Krause was

a co-employee and not a supervisor. 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. Costco immediately initiated an

investigation. 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. Costco has moved for summary judgment on two

grounds: 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. Id.

Here, Reza has failed to establish either objective or

subjective hostility. 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. She

was 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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