MON-L-003039-19 08/26/2019 8:38:59 AM Pg 1 of 13 Trans ID: LCV20191514441

Christian V. McOmber, Esq. – NJ ID # 012292010

cvm@njlegal.com
Matthew A. Luber, Esq. – NJ ID # 017302010
mal@njlegal.com
R. Armen McOmber, Esq. – NJ ID # 018251998
ram@njlegal.com
Elizabeth A. Matecki, Esq. – NJ ID # 108372014
eam@njlegal.com
Austin B. Tobin, Esq. – NJ ID # 002622010
abt@njlegal.com
Peter M. Draper, Esq. – NJ ID # 012112012
pmd@njlegal.com
McOMBER & McOMBER, P.C.
54 Shrewsbury Avenue
Red Bank, NJ 07701
(732) 842-6500 Phone
(732) 530-8545 Fax
Attorneys for Plaintiff, Irwin Wayne Levy

IRWIN WAYNE LEVY, SUPERIOR COURT OF NEW JERSEY

LAW DIVISION
Plaintiff, MONMOUTH COUNTY

vs. DOCKET NO.:

COSTCO WHOLESALE CORPORATION,

ZOYA VLADY, GEORGINA PERCIA and ABC Civil Action
CORPORATIONS 1-5 (fictitious names
describing presently unidentified business COMPLAINT & DEMAND
entities); and JOHN DOES 1-5 (fictitious names FOR TRIAL BY JURY
describing presently unidentified individuals)

Defendants.

Plaintiff Irwin Wayne Levy (“Plaintiff”), by way of Complaint against Defendants Costco

Wholesale Corporation (“Defendant Costco”), Zoya Vlady (“Defendant Vlady”) and Georgina

Percia (“Defendant Percia”) (collectively “Defendants”), alleges as follows:

 MON-L-003039-19 08/26/2019 8:38:59 AM Pg 2 of 13 Trans ID: LCV20191514441

PARTIES

1. Plaintiff is an individual residing at 64 Highland Avenue, Leonardo, New Jersey

07737.

2. Defendant Costco is a corporation organized and existing under the law of the state

of Washington with headquarters located at 999 Lake Drive, Issaquah, Washington 98027.

Defendant Costco is a wholesale retailer with warehouses nationwide and throughout New Jersey,

including the 2835 Route 35 N, Hazlet, New Jersey 07730 location (the “Hazlet Location”)

relevant to this matter. At all times relevant hereto, Defendant Costco is an “employer” and the

“owner of a place of public accommodation” as defined under the New Jersey Law Against

Discrimination, N.J.S.A. 10:5-1 et seq. (“LAD”) and directly employed Defendants Vlady and

Percia.

3. Defendant Vlady is a citizen of New Jersey and, at all times relevant hereto, is an

individual employed by Defendant Costco as the Warehouse Manager for its Hazlet Location.

This claim is brought against Defendant Vlady in her individual capacity and as an agent or servant

of Defendant Costco.

4. Defendant Percia is a citizen of New Jersey and, at all times relevant hereto, is an

individual employed by Defendant Costco as a Senior Manager in its Hazlet Location. This claim

is brought against Defendant Percia in her individual capacity and as an agent or servant of

Defendant Costco.

5. Defendant ABC Corporations 1 through 5 are currently unidentified business

entities who have acted in concert with Corporate Defendant, and/or currently unidentified

business entities responsible for the creation and/or implementation of harassment or anti-

2
 MON-L-003039-19 08/26/2019 8:38:59 AM Pg 3 of 13 Trans ID: LCV20191514441

retaliation policies of Corporate Defendant, and/or currently unidentified business entities who

have liability for the damages suffered by Plaintiff under any theory advanced therein.

6. Defendants John Does 1 through 5 are currently unidentified individuals who acted

in concert with Defendants and/or currently unidentified individuals responsible for the creation

and/or implementation of harassment or anti-retaliation policies of Corporate Defendants and are

currently unidentified individuals who may have liability for the damages suffered by Plaintiff

under any theory advanced herein.

FACTS COMMON TO ALL CLAIMS

7. Plaintiff repeats each and every allegation set forth above as if set forth fully herein

at length.

8. Defendant Costco is a global retailer that operates a chain of warehouse locations

nationwide and eight countries globally. Defendant Costco is a membership-only warehouse club

in which customers can purchase a wide selection of merchandise and food products.

9. Plaintiff has been shopping at Defendant Costco for many years and is considered

a “regular” at the Hazlet Location.

10. In addition, Plaintiff’s son, Justin Levy, (“Justin”) is an employee at the Hazlet

Location.

11. On or about April 7, 2019, upon completing his shopping at Defendant Costco,

Plaintiff commenced the checkout process at a register operated by Hazlet Location employee

Dawn [last name currently unknown] (“Dawn”).

12. Because Plaintiff is a regular at the Hazlet Location, Dawn was familiar with him.

Accordingly, Dawn greeted Plaintiff, engaged in small talk, and stated to her Line Assistant, Hazlet

3
 MON-L-003039-19 08/26/2019 8:38:59 AM Pg 4 of 13 Trans ID: LCV20191514441

Location employee Kristen [last name currently unknown] (“Kristen”), “do you know whose father

this is? This is Justin’s Dad.”

13. Defendant Percia, who was assisting on an adjacent register, overheard the

conversation and interjected herself in the conversation.

14. Specifically, Defendant Percia stated to Plaintiff in a sarcastic tone, “oh, I know

where he [Justin] gets his good looks from.”

15. Plaintiff was extremely unsettled and offended by Defendant Percia’s derogatory

statement. To avoid further confrontation with Defendant Percia, Plaintiff responded by stating

“no, his good looks are from his mother.”

16. Immediately thereafter, Defendant Percia, abruptly and inappropriately asked

Plaintiff “how much of Justin is Jewish?”

17. Plaintiff, completely shocked and disturbed by Defendant Percia’s clearly anti-

Semitic animus, responded “excuse me? What do you mean by that?”

18. Defendant Percia replied to Plaintiff that she wanted to know how much of

Plaintiff’s son is Jewish because she was “curious.”

19. Plaintiff, extremely uncomfortable with the direction of the conversation, simply

answered “[Justin] is half Catholic from his mother and half Jewish from me.”

20. Outrageously, Defendant Percia then stated “I don’t think so. He [Justin] has to be

more Jewish than that!”

21. Stunned by Defendant Percia’s ongoing discriminatory conduct, Plaintiff then

asked her, “Do you mean that [Justin has to be more Jewish than that] in a good or bad way?”

22. In turn, Defendant Percia responded “In a bad way of course!”

4
 MON-L-003039-19 08/26/2019 8:38:59 AM Pg 5 of 13 Trans ID: LCV20191514441

23. Plaintiff was horrified, humiliated, and extremely alarmed at Defendant Percia’s

anti-Semitic tirade against him and his son.

24. Immediately upon checking out, Plaintiff attempted to end the discriminatory

discussion with Defendant Percia and exit the Hazlet Location.

25. However, Defendant Percia would not leave Plaintiff alone, and continued to follow

Plaintiff, stating “Jews only see things in black and white with no grey area; just like Justin.”

26. Defendant Percia continued to berate Plaintiff with inappropriate comments,

accusations, and insults about Plaintiff, his son, and their Jewish faith for over five minutes until

Toni, [last name currently unknown] (“Toni”), one of the Hazlet Location cashiers, admonished

Defendant Percia, not for her discriminatory conduct, but to instruct her to get back to work.

27. Enduring Defendant Percia’s heinous and inappropriate remarks would have been

bad enough in private, let alone publicly in the Hazlet Location while other Defendant Costco

employees and customers watched.

28. Other employees that were present at Defendant Costco who overheard Defendant

Percia’s inappropriate and unlawful comments advised Plaintiff that Defendant Percia was out of

line and that he should complain to the Defendant Costco manager.

29. Thereafter, Plaintiff’s son, Justin, reported Defendant Percia’s discriminatory

behavior to Defendant Vlady.

30. On or about April 9, 2019, Defendant Vlady called Plaintiff to inquire about the

appalling discriminatory conduct to which he was subjected two days prior at Defendant Costco.

31. After Plaintiff provided Defendant Vlady with all the details, Defendant Vlady

claimed to have recognized the seriousness of the situation, promised Plaintiff that she would

investigate the situation, and stated that she would get back to Plaintiff with a resolution.

5
 MON-L-003039-19 08/26/2019 8:38:59 AM Pg 6 of 13 Trans ID: LCV20191514441

32. Upon information and belief, Defendant Percia admitted to her discriminatory

conduct, advising Defendant Vlady that she did say that “being Jewish is a bad thing.”

33. Despite the seriousness of the discriminatory conduct to which Plaintiff, a loyal

Defendant Costco customer, was subjected by a Defendant Costco employee, to date, Defendant

Costco has failed to remediate Plaintiff’s complaints of such unlawful conduct.

34. Moreover, notwithstanding Defendant Vlady’s illusory promises to Plaintiff that

Defendant Percia’s illicit conduct would be resolved, Defendant Costco has ignored Plaintiff’s

complaints and is attempting to sweep Defendant Percia’s despicable conduct under the rug.

35. Plaintiff’s son also complained to Defendant Costco’s human resources department

about Defendant Percia’s discriminatory attack on his father to no avail.

36. Plaintiff has suffered mental anguish, humiliation and sleeplessness as a direct

result of Defendant Percia’s discriminatory behavior and Defendant Costco’s failure to conduct an

investigation or take appropriate remedial action with regard to same.

37. In addition, Plaintiff no longer feels comfortable shopping at the Hazlet Location

for fear that he will be subjected to additional discriminatory and/or retaliatory conduct.

Consequently, as a result of Defendants’ unlawful conduct, Plaintiff has been forced to shop at

other Defendant Costco locations which are inconvenient and cost Plaintiff in time and additional

travel expenses.

COUNT ONE
NJLAD – DISPARATE TREATMENT & HOSTILE RETAIL ENVIRONMENT
DISCRIMINATION DUE TO RELIGION

38. Plaintiff repeats each and every allegation set forth above as if set forth fully herein

at length.

6
 MON-L-003039-19 08/26/2019 8:38:59 AM Pg 7 of 13 Trans ID: LCV20191514441

39. The pattern and practice of discrimination, harassment, and retaliation directed at

Plaintiff is outlined above.

40. Plaintiff was subjected to repeated, pervasive, severe, and continuing instances of

disparate treatment and harassment based on his religion.

41. The above-described conduct would not have occurred but for Plaintiff’s religion.

42. Plaintiff’s religion was the motivating factor in the decision to discriminate against

Plaintiff.

43. At all times relevant hereto, Defendant Costco is an “employer” and the “owner of

a place of public accommodation” as defined under the New Jersey Law Against Discrimination

(“LAD”), N.J.S.A. 10:5-1, et seq.

44. As the employer and/or supervisor of Defendants Vlady and Percia, Defendant

Costco is vicariously, strictly, and/or directly liable to Plaintiff pursuant to the New Jersey Law

Against Discrimination (“NJLAD”), N.J.S.A. 10:5-1, et seq., in that the affirmative acts of

discrimination and harassment committed by Defendants Vlady and Percia and agents and/or

representatives of Defendant Costco occurred within the scope of employment; and/or Defendant

Costco was deliberately indifferent, reckless, negligent and/or tacitly approved Defendant Vlady

and Defendant Percia’s conduct; and/or Defendant Costco failed to create and/or have in place

well-publicized and enforced anti-harassment policies, effective formal and informal complaint

structures, training, and/or monitoring mechanisms for same despite the foreseeability of

harassment; and/or by having actual knowledge of the harassment of Plaintiff and failing to

promptly and effectively act to stop it.

45. As a proximate result of the aforementioned acts and omissions set forth herein,

Plaintiff has sustained damages and will, in the future, so suffer.

7
 MON-L-003039-19 08/26/2019 8:38:59 AM Pg 8 of 13 Trans ID: LCV20191514441

WHEREFORE, Plaintiff demands judgment in his favor and against Defendants on this Count,

together with compensatory and equitable relief, all remedies available under the law, punitive

damages, pre-and post-judgment interest, and attorney’s fees and costs of suit. More specifically,

Plaintiff demands judgment against Defendants for harm suffered in violation of the NJLAD as

follows:

A. Compensatory damages;
B. Consequential damages;
C. Punitive damages;
D. Consequential damages;
E. Any and all attorneys’ fees, expenses and/or costs, including, but not limited to,
court costs, expert fees and all attorneys’ fees incurred by Plaintiff in the prosecution of
this suit (including enhancements thereof required to off-set negative tax consequences
and/or enhancements otherwise permitted under law);
F. Such other relief as may be available pursuant to the LAD and which the Court
deems just and equitable;
G. Ordering Defendants to take appropriate corrective action to stop and prevent
retaliation at the workplace;
H. Ordering Defendants to take appropriate corrective action to stop and prevent
harassment at the workplace;
I. Ordering Defendants to undergo anti-discrimination training;
J. Ordering Defendants to undergo anti-retaliation training;
K. Ordering Defendants to undergo anti-harassment training;
L. Ordering Defendants to undergo workplace civility training;
M. Ordering Defendants to undergo bystander intervention training;
N. Ordering Defendants to engage a research organization to assess the effectiveness
of their anti-discrimination training;
O. Ordering Defendants to engage a research organization to assess the effectiveness
of their anti-retaliation training;
P. Ordering Defendants to engage a research organization to assess the effectiveness
of their anti-harassment training;
Q. Ordering Defendants to engage a research organization to assess the effectiveness
of their workplace civility training;
R. Ordering Defendants to engage a research organization to assess the effectiveness
of their bystander intervention training;
S. Ordering Defendants to identify an appropriate professional to investigate any
future complaints of discrimination;
T. Ordering Defendants to identify an appropriate professional to investigate any
future complaints of harassment;
U. Ordering Defendants to identify an appropriate professional to investigate any
future complaints of retaliation; and

8
 MON-L-003039-19 08/26/2019 8:38:59 AM Pg 9 of 13 Trans ID: LCV20191514441

V. Such other relief as may be available and which the Court deems just and
equitable.

COUNT TWO
NEGLIGENT HIRING
(AS TO DEFENDANT COSTCO)

46. Plaintiff repeats each and every allegation set forth above as if set forth fully herein

at length.

47. Defendant Costco’s negligence, gross negligence, reckless conduct and hiring of

Defendant Percia as an employee directly and proximately caused Plaintiff to suffer

discrimination.

48. As a proximate result of the aforementioned negligent hiring by Defendant Costco,

and acts and omissions set forth herein, Plaintiff has sustained damages and will, in the future, so

suffer.

WHEREFORE, Plaintiff demands judgment in his favor and against Defendant Costco, together

with compensatory and equitable relief, all remedies available under the law, punitive damages,

pre- and post-judgment interest, attorney’s fees and costs of suit, and for such other relief that the

Court deems equitable and just.

COUNT THREE
NEGLIGENT RETENTION
(AS TO DEFENDANT COSTCO)

49. Plaintiff repeats each and every allegation set forth above as if set forth fully herein

at length.

50. Defendant Costco’s negligence, gross negligence, reckless conduct and retention

of Defendant Percia as an employee directly and proximately caused Plaintiff to suffer

discrimination.

9
 MON-L-003039-19 08/26/2019 8:38:59 AM Pg 10 of 13 Trans ID: LCV20191514441

51. As a proximate result of the aforementioned negligent retention by Defendant

Costco, and the acts and omissions set forth herein, Plaintiff has sustained damages and will, in

the future, so suffer.

WHEREFORE, Plaintiff demands judgment in his favor and against Defendant Costco on this

Count, together with compensatory and equitable relief, all remedies available under the law,

punitive damages, pre- and post-judgment interest, attorney’s fees and costs of suit, and for such

other relief that the Court deems equitable and just.

COUNT FOUR
NEGLIGENT TRAINING
(AS TO DEFENDANT COSTCO)

52. Plaintiff repeats each and every allegation set forth above as if set forth fully herein

at length.

53. Defendant Costco’s negligence, gross negligence, reckless conduct and training of

Defendant Percia as an employee directly and proximately caused Plaintiff to suffer

discrimination.

54. As a proximate result of the aforementioned negligent training by Defendant

Costco, and the acts and omissions set forth herein, Plaintiff has sustained damages and will, in

the future, so suffer.

WHEREFORE, Plaintiff demands judgment in his favor and against Defendant Costco on this

Count, together with compensatory and equitable relief, all remedies available under the law,

punitive damages, pre- and post-judgment interest, attorney’s fees and costs of suit, and for such

other relief that the Court deems equitable and just.

10
 MON-L-003039-19 08/26/2019 8:38:59 AM Pg 11 of 13 Trans ID: LCV20191514441

COUNT FIVE
NEGLIGENT SUPERVISION
(AS TO DEFENDANT COSTCO)

55. Plaintiff repeats each and every allegation set forth above as if set forth fully herein

at length.

56. Defendant Costco’s negligence, gross negligence, reckless conduct and supervision

of Defendant Percia directly and proximately caused Plaintiff to suffer discrimination.

57. As a proximate result of the aforementioned negligent supervision by Defendant

Costco, and acts and omissions set forth herein, Plaintiff has sustained damages and will, in the

future, so suffer.

WHEREFORE, Plaintiff demands judgment in his favor and against Defendant Costco on this

Count, together with compensatory and equitable relief, all remedies available under the law,

punitive damages, pre- and post-judgment interest, attorney’s fees and costs of suit, and for such

other relief that the Court deems equitable and just.

COUNT SIX
VIOLATION OF THE NEW JERSEY CONSUMER FRAUD ACT
(AS TO DEFENDANT COSTCO)

58. Plaintiff alleges and asserts each of the preceding paragraphs as if fully set forth

herein.

59. The conduct described above constitutes violation of the New Jersey Consumer

Fraud Act, (“NJCFA”) N.J.S.A. § 56:8-1 et. seq.

60. As a direct and proximate result of Defendant Costco’s conduct, Plaintiff has

suffered damages and ascertainable loss for which Defendant Costco is liable to Plaintiff, plus

attorneys’ fees and costs, along with equitable relief prayed for herein in this Complaint.

11
 MON-L-003039-19 08/26/2019 8:38:59 AM Pg 12 of 13 Trans ID: LCV20191514441

WHEREFORE, Plaintiff demands judgment in his favor and against Defendant Costco, together

with compensatory and equitable relief, all remedies available under the law, punitive damages,

pre- and post-judgment interest, attorney’s fees and costs of suit, and for such other relief that the

Court deems equitable and just.

DEMAND FOR DISCOVERY OF INSURANCE COVERAGE

Pursuant to Rule 4:10-2(b), demand is made that Defendants disclose to Plaintiff’s attorney

whether or not there are any insurance agreements or policies under which any person or firm

carrying on an insurance business may be liable to satisfy part or all of the judgment which may

be entered in this action or indemnify or reimburse for payments made to satisfy the judgment and

provide Plaintiff’s attorney with true copies of those insurance agreements or policies, including,

but not limited to, any and all declaration sheets. This demand shall include and cover not only

primary insurance coverage, but also any excess, catastrophe, and umbrella policies.

DEMAND FOR TRIAL BY JURY

Plaintiff demands a trial by jury on all issues.

McOMBER & McOMBER, P.C.

Attorneys for Plaintiff,
Irwin Wayne Levy

By: /s/ Christian V. McOmber, Esq.

Christian V. McOmber, Esq.
Dated: August 23, 2019

DESIGNATION OF TRIAL COUNSEL

Pursuant to Rule 4:25-4, CHRISTIAN V. MCOMBER, ESQUIRE is hereby designated as

trial counsel for Plaintiff.

12
 MON-L-003039-19 08/26/2019 8:38:59 AM Pg 13 of 13 Trans ID: LCV20191514441

CERTIFICATION

Pursuant to Rule 4:5-1, it is hereby certified that, to the best of my knowledge, there are no

other civil actions or arbitration proceedings involving this matter with respect to this matter and

no other parties need to be joined at this time.

I certify that the foregoing statements made by me are true. I am aware that if any of the

foregoing statements made by me are willfully false, I am subject to punishment.

McOMBER & McOMBER, P.C.

Attorneys for Plaintiff,
Irwin Wayne Levy

By: /s/ Christian V. McOmber, Esq.

Christian V. McOmber, Esq.
Dated: August 23, 2019

13