A jury in Monmouth County, New Jersey, has ruled in favor of Costco Wholesale Corp. in a customer’s suit over a store employee’s alleged antisemitic remarks.
Following a seven-day trial before Superior Court Judge Gregory Acquaviva, the jury ruled that statements to Irwin Wayne Levy by employee Georgina Percia did not violate New Jersey’s Law Against Discrimination.
The verdict could be viewed as an illustration of the peril of bringing a discrimination claim based on a single incident.
“We believed in, and we fought the good fight. It was stoutly defended and vigorously litigated, but we believed in the client and we didn’t think Costco’s response was appropriate,” said R. Armen McOmber of McOmber McOmber & Luber in Red Bank, who represented Levy. “We didn’t think Costco acted appropriately, and that’s why we brought the litigation, and that’s why we fought them for three and a half years.”
McOmber declined to say whether the six-person jury included any Jewish members.
There was no recording of the exchange that led to the suit, and the parties argued at length about the facts of the case, but some of Levy’s allegations were confirmed by the defense, McOmber said.
Levy claimed Costco violated the New Jersey Law Against Discrimination by engaging in hostile retail environment discrimination based on his religion. He also brought claims of negligent hiring, retention, training and supervision against Costco. Levy said he visited the Costco in Hazlet on April 7, 2019, and was at the checkout when the alleged offensive remarks were made.
Levy said Percia, a cashier’s assistant, made the remarks while he was checking out and making small talk with some employees, one of whom noted that he was the father of one of their co-workers. Percia, who was assisting a cashier at a nearby register, asked Levy, concerning his son, “How much of Justin is Jewish?” according to court papers.
Levy replied that his son is “half Catholic from his mother and half Jewish from me.” Percia replied that Levy’s son “has to be more Jewish than that,” according to court documents, to which Levy responded by asking Percia if she meant that “in a good way or a bad way?” Percia replied, “in a bad way, of course,” and added that “Jews only see things in black and white with no gray area, just like Justin [plaintiff Levy’s son],” according to court documents.
Percia allegedly followed Levy after he paid for his purchases, and went on berating him with inappropriate comments and insults about his Jewish faith for over five minutes, the suit claims.
Levy claimed he suffered emotional distress as a result, although he did not receive counseling for the incident. Percia received a written warning about the incident, but Levy felt that was inadequate. Percia allegedly had been in trouble before for comments related to customers’ race and ethnicity, McOmber said.
“There was, we believe, enough there that more should have been done,” McOmber said.
Lauren Wachtler and Ben Wilkinson of Barclay Damon, representing Percia, claimed in their answer that Levy failed to allege any repeated, pervasive or continuing instances of discrimination, harassment or retaliation. They also argued that Percia had no legal duty to Levy, that he did not suffer any damages as a result of her actions, and that he could not demonstrate any participation or reckless indifference by management.
The lawyer for Costco, Tracee Davis of Seyfarth Shaw, said in response to the complaint that any unlawful conduct by Costco employees, if it occurred, was outside the scope of such persons’ employment, was not authorized by Costco and was undertaken without the knowledge or consent of Costco.
Davis did not respond to requests for comment about the verdict.