A federal court recently held that a retail employee could proceed to trial on his hostile work environment claim based upon disability harassment due to his employer’s failure to take prompt remedial action to stop the harassment.  Pikowski v. Gamestop, Inc., et al., No. 11-2732, 2013 U.S. Dist. LEXIS 175193 (D.N.J. Dec. 11, 2013).

In this case, the plaintiff, Michael Pikowski, alleged that his former employer, GameStop, Inc., a major video game retailer, harassed, discriminated, and retaliated against him based upon his disabilities in violation of the New Jersey Law Against Discrimination (“LAD”).  Pikowski, a Lead Game Advisor (“LGA”) at GameStop’s Phillipsburg, New Jersey store, had Asperger’s Syndrome, obsessive-compulsive disorder (“OCD”) with contamination phobia, anxiety, and depression.  Prior to and throughout his employment, management was aware of his disabilities.  Following his manager’s termination, Pikowski was promoted to interim Senior Game Advisor (“SGA”).  Around this time, Pikowski visited another GameStop store as a customer and was allegedly subjected to inappropriate comments by the store’s manager when he requested to look at sealed, untouched games because of his phobia.  

After a newly hired store manager filled the SGA vacancy in the Phillipsburg store, Pikowski resumed working as an LGA.  Pikowski claimed his manager rubbed a cable he claimed was contaminated by dog feces over a game that Pikowski intended to purchase, and kicked a video console across the floor before Pikowski purchased it.  Upon receiving a complaint from Pikowski’s mother that her son had been discriminated against because of his disabilities and passed over for the SGA position, the district manager met with Pikowski to discuss his complaints, and informed him of an open SGA position at another GameStop store in Easton, Pennsylvania.  Pikowski accepted a transfer to the Easton store.

At the Easton store, Pikowski claimed his manager referred to him as “sped” and “retard” and kicked him in the buttocks.  Following an investigation, the store manager was disciplined and the entire store was required to complete a two-hour respectful-workplace training course.  After these incidents, Pikowski requested to be transferred back to the Phillipsburg store, even though he understood his hours would be reduced due to the store’s lower sales volume.  After returning to work at the Phillipsburg store, Pikowski was not given a key, which he previously had.  A month later, Pikowski resigned, claiming that he had been overlooked for SGA positions in Easton and Hackettstown, and subjected to constructive termination. 

Pikowski sued, asserting claims for hostile work environment based upon disability harassment, disability discrimination, retaliation, and constructive discharge.  The company moved for summary judgment, which was granted in part and denied in part.  The court held that the reduction of Pikowski’s hours following his transfer from the Easton store to the Phillipsburg store did not constitute an adverse employment action because Pikowski was aware of, and agreed to, the reduction in hours.  The court also held that the loss of Pikowski’s key holder responsibility was not an adverse employment action because the responsibility was discretionary and did not materially change the terms of his employment. Further, the court held that Pikowski could not maintain he was passed over for an SGA position because of his disabilities.  The court found that there was no evidence that an open position was available in the Hackettstown store; Pikowski removed himself from consideration for the position in the Easton store by transferring to the Phillipsburg store; and Pikowski failed to show that the company acted with any discriminatory intent when it promoted another employee over Pikowski in the Phillipsburg store.  As a result, the court dismissed Pikowski’s disability discrimination claim.  The court dismissed Pikowski’s retaliation and constructive discharge claims for similar reasons.

The court held, however, that Pikowski sufficiently raised a genuine issue of material fact as to whether the conduct, cumulatively, constituted workplace harassment.  The court found that the comments made, and the conduct committed, by the managers in the Phillipsburg and Easton stores, if true, could create an issue of fact as to whether Pikowski was harassed.  The court was not persuaded by the company’s argument that it took prompt remedial action after receiving Pikowski’s complaints because the alleged incidents of harassment continued until Pikowski’s resignation.

Accordingly, this decision highlights that an employer must not only take prompt remedial action after receiving an employee’s complaint of harassment, but must take steps to ensure that the harassment is stopped.  If the employer’s response does not stop the harassment, the employer will not be relieved of liability.