Head v. Costco Wholesale Corporation

Nature of the order

Judge Edward Chen issued the court’s final jury instructions before trial. The court stated that it could modify the instructions if circumstances at trial or good cause required it. The instructions were to be renumbered for the jury and were not to include the court’s notes or additional court notes. The parties were also required to meet and confer on some remaining issues.

Claims and stipulated facts

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

The instructions state that Head was employed by Costco from October 23, 1993, through June 2022, starting and ending at the Livermore warehouse. They also state that Head’s wife, Janice Head, had cancer beginning in or around 2014; that Head used intermittent family-leave time after her diagnosis; that he took leave to care for her from March through June 2021; and that he later received leave for his own serious health condition through May 7, 2022. Head requested additional leave to care for his wife, did not return to work on May 8, 2022, and resigned on June 30, 2022, citing the need to care for his chronically ill wife. His wife died on April 29, 2023.

Instructions on accommodation and the interactive process

The court instructed that Head’s accommodation claim required him to prove that he requested a reasonable accommodation for himself because of his wife’s cancer, Costco failed to provide a reasonable accommodation, he was harmed, and Costco’s failure was a substantial factor in causing that harm.

The court defined a reasonable accommodation as a reasonable workplace change allowing an employee associated with a person with a disability to perform the essential duties of the job. The examples included changing job responsibilities or schedules and providing a leave of absence. The court instructed that an employer need not provide an accommodation creating an 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.

For the interactive-process claim, Head had to prove that he requested an accommodation because of his wife’s disability, was willing to participate in the process, and Costco failed to participate in a timely, good-faith process when it could have made a reasonable accommodation. He also had to prove harm and causation.

The court declined to give Head a separate instruction on “associational disability,” finding that the accommodation instruction already explained that theory. The court also declined to give additional proposed instructions concerning whether an accommodation was available at the time of the request or defining indefinite leave.

Retaliation, constructive discharge, and wrongful termination

The retaliation instruction limits the alleged adverse employment action to constructive discharge. Constructive discharge occurs when an employee resigns because the employer intentionally created or knowingly permitted working conditions so intolerable that a reasonable person would have had no reasonable alternative but to resign. The court instructed that the conditions generally must be unusually aggravated or part of a continuous pattern, although a single intolerable incident can sometimes be enough.

Head’s retaliation claim required him to prove that he requested an accommodation 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 substantially caused that harm. The court explained that Head could prevail on retaliation even if he did not prevail on his separate accommodation claim. It also explained that merely denying an accommodation is not retaliation unless Costco denied it because of a retaliatory motive.

The court stated that the retaliation claim did not include an alleged failure to rehire. It also gave an instruction on wrongful termination in violation of public policy, under which Head must prove that Costco constructively discharged him, that a substantial motivating reason was his request for an accommodation because of his wife’s disability, and that he was harmed as a result. Although the court questioned whether the retaliation and wrongful-termination claims were duplicative, it stated that it would give the wrongful-termination instruction.

The court also gave a “same decision” instruction. If the jury found both a constructive discharge and retaliation, it would have to decide whether Costco proved that it would have discharged Head anyway because he requested indefinite leave. If so, the instruction states that Head would not be entitled to reinstatement, back pay, or damages.

Damages and other instructions

The court instructed that Head had to prove damages by a preponderance of the evidence. Potential economic damages included lost earnings and benefits, while potential noneconomic damages included physical pain, mental suffering, loss of enjoyment of life, inconvenience, anxiety, humiliation, and emotional distress. The instructions also addressed mitigation, meaning reasonable efforts to avoid or reduce damages.

The jury was instructed not to award punitive damages or attorney fees and litigation expenses. The court denied Costco’s proposed additional instructions stating that litigation stress was not recoverable and addressing causation for emotional-distress damages. The court also declined several other proposed instructions, including an instruction that employment decisions that are unfair are not necessarily illegal and a separate instruction concerning accommodation leave for associational disability.

This order sets the legal framework for the jury; it does not state a jury verdict or final outcome on Head’s claims.