Head v. Costco Wholesale Corporation

Nature of the Order

The court issued proposed jury instructions for an upcoming trial and directed the parties to file comments by November 17, 2025. The order does not enter a verdict or decide liability. It includes preliminary, trial, closing, damages, and conditional instructions, with several bracketed alternatives and placeholders still to be resolved.

Claims and Issues for Trial

The proposed instructions identify four claims by Terry Head against Costco Wholesale Corporation under state law:

The instructions state that Head has the burden of proving his claims and that Costco denies the claims and denies that Head was injured by Costco’s alleged conduct. The proposed accommodation instruction describes the theory as “associational disability”: Head claims Costco should have provided him additional leave to care for his wife, who had cancer.

Proposed Accommodation Instructions

For the failure-to-accommodate claim, Head would have to prove that he requested a reasonable accommodation for himself because of his wife’s cancer, Costco failed to provide reasonable accommodation, he was harmed, and Costco’s failure was a substantial factor in causing that harm.

The proposed definition of reasonable accommodation includes a reasonable workplace change that allows an employee associated with a person with a disability to perform the essential duties of the job. Examples may include changing job responsibilities or schedules and providing a leave of absence. The proposed instruction states that an employer need not provide an accommodation that would cause undue hardship or an indefinite leave of absence. If more than one accommodation is reasonable, the employer satisfies its obligation by selecting one in good faith.

The court denied Head’s request for a separate instruction on “Associational Disability,” finding it unnecessary because the proposed accommodation instruction already explains that the case is based on that theory. The court also declined to give Costco’s proposed instruction stating that the law was unclear about whether leave was required as an accommodation based on association with a person with a disability. The court stated that the instruction served no purpose, noting that it had already ruled at summary judgment that Head was not entitled to punitive damages and that its evidentiary rulings did not allow Head to argue intentional discrimination by Costco.

Interactive-Process Claim

For the interactive-process claim, the proposed instruction would require Head to prove that he requested a reasonable accommodation for himself because of his wife’s disability, was willing to participate in the interactive process, and Costco failed to participate in a timely, good-faith process. He would also have to prove that Costco could have made a reasonable accommodation when the process should have occurred, that he was harmed, and that Costco’s failure was a substantial factor in causing the harm.

The court did not include Costco’s additional proposed instruction that an employee must identify a reasonable accommodation available when the interactive process occurred, finding that instruction unnecessary in light of the proposed elements.

Retaliation and Constructive Discharge

The proposed retaliation instruction states that Head claims Costco constructively fired him by refusing to accommodate his request for leave to care for his wife. “Constructive discharge” means that an employee resigns because working conditions intentionally created or knowingly permitted by the employer were so intolerable that a reasonable person would have had no reasonable alternative except to resign.

Head would have to prove that he requested an accommodation for himself because of his wife’s disability, Costco constructively discharged him, the discharge was substantially motivated by his repeated accommodation requests, he was harmed, and the discharge was a substantial factor in causing that harm. The instruction states that Head need not prove a failure to accommodate to prevail on retaliation. It also states that merely denying an accommodation is not retaliation if Costco denied the request because it believed the request was unreasonable rather than because Head made multiple requests.

The court limited the adverse employment action for the retaliation claim to the alleged termination. It rejected treating an alleged failure to rehire as part of that claim, stating that its summary judgment order had already held there was no longer a failure-to-rehire claim. The proposed instruction allows evidence concerning Head’s requests for accommodation for his own medical condition as background, but the retaliation claim is based on requests to care for his wife.

The proposed “same decision” instruction states that, if the jury finds a constructive discharge and retaliation was a substantial motivating reason, it must consider whether Costco has proved that it would have discharged Head anyway because he requested an indefinite leave. If so, the instruction states that Head would not be entitled to reinstatement, back pay, or damages. The court declined to give Costco’s proposed instructions on pretext and on a legitimate, non-retaliatory reason as unnecessary.

For the wrongful-termination claim, the proposed instruction states that retaliating against a person for requesting an accommodation because of an association with a person with a physical or mental disability violates public policy. The court questioned whether the retaliation and wrongful-termination claims should remain separate now that the retaliation claim’s adverse employment action had been limited to termination, and directed the parties to meet and confer about that instruction.

Damages and Other Jury Instructions

The proposed damages instructions would allow economic damages for past and future lost earnings and benefits, and noneconomic damages for physical pain, mental suffering, loss of enjoyment of life, inconvenience, anxiety, humiliation, and emotional distress, if supported by the evidence. Head would bear the burden of proving damages, while Costco would bear the burden of proving failure to mitigate and the amount that could have been avoided or reduced.

The jury would be instructed not to award punitive damages, attorney fees, or litigation expenses. The court denied Costco’s requests for separate instructions stating that litigation stress and emotional-distress damages were not recoverable or addressing causation of emotional-distress damages, finding those instructions unnecessary. The court declined to give Head’s proposed instruction concerning a particular method for calculating past and future lost earnings, but stated that Head could argue for that approach to the jury.

The remaining instructions address matters such as the burden of proof, evidence, witness credibility, unconscious bias, jury conduct, stipulations, depositions, deliberations, verdicts, and the use of electronic exhibits. The court included a placeholder for a possible instruction concerning whether Head sought rehire and directed the parties to meet and confer on proposed language.

Disposition and Procedural Posture

This is a proposed-instructions order issued before a jury trial. It sets out the issues and legal standards the court proposed giving to the jury, denies or declines several additional proposed instructions, limits the retaliation claim as described above, and invites further party submissions. It does not determine the ultimate merits of Head’s claims or Costco’s defenses.