Tuesday, October 14, 2014

Employee fired for drinking store's OJ to avoid diabetic coma


Linda Atkins worked at the Dollar General Store in Maryville, Tennessee as a Lead Sales Associate. She had been working there for two years, and was a very satisfactory employee, having been promoted from Sales Associate a year earlier. 

As Lead Sales Associate, Atkins’ duties included sales associate functions and assisting in opening and closing the store at the direction of the store manager.  She would also work as the store manager on duty and as the relief cashier when the shift cashier took a lunch break.  

Atkins has Type 2 Diabetes, and has to give herself an injection of insulin every day. She told the Store Manager about her diabetes, and asked for permission to keep a bottle of juice near the cash register so that she could drink it if she felt the onset of a hypoglycemic attack while on duty. However, the Store Manager turned down her request, saying that it was against store policy to have juice at or near the register. 

One day in January, 2012, Atkins was working as the relief cashier while the shift cashier took her one hour lunch break.  While ringing up customers, Atkins began to experience the symptoms of a hypoglycemic attack (which typically include dizziness, sweating, and rapid heart beat), and needed to stabilize her blood sugar immediately.  As the sole employee in the store, she did not want to leave the cash register unattended, so she grabbed a bottle of orange juice from the store’s cooler and drank it. 

Although Atkins had her own orange juice in her personal cooler in the rear of the store, she did not want to leave the cash register unattended, so she took emergency action by removing the juice from the store’s cooler and drinking it, to prevent a threat on her life.  As soon as the medical episode was over, she paid for the orange juice.  If she had not drunk the juice, she could have experienced serious health consequences, such as a diabetic coma.  

Atkins told the District Manager what she had done, and that she believed she would have passed out if she did not drink the juice to stabilize her blood glucose level. However, she was fired for violating the store’s “grazing” policy, which prohibits employees from consuming merchandise before payment.

Atkins filed a charge of discrimination with the EEOC, and the EEOC attempted to reach a voluntary settlement with Dollar General through its conciliation process. When that process did not lead to settlement, in September 2014, the EEOC sued Dollar General on Atkins’ behalf, alleging that Dollar General violated the Americans with Disabilities Act by failing to accommodate Atkins’ disability.  Specifically, the company violated the ADA when it denied Atkins the “reasonable accommodation” of keeping her own bottle of juice at the register, and when it fired her for violating the store’s grazing policy.   The suit is EEOC v. Dollar General, U.S. District Court for the Eastern District of Tennessee, Knoxville Division, No. 3:14-cv-00441.

Under the ADA, an employee with a disability has the right to ask the employer to adjust or modify the job - called reasonable accommodations.  The employer is required to discuss the issue with the employee, engaging in an interactive process, to arrive at a workable solution.  The employer is required to grant the accommodation unless doing so would be an undue hardship (that is, a significant difficulty or expense).  See the EEOC’s "Questions & Answers about Diabetes in the Workplace and the Americans with Disabilities Act (ADA)." 

The legal question is whether a company is considered to be engaging in discrimination when it fires an employee for violating a company policy that it applies equally to all employees.  But what if the employee violated the policy due to her disability? According to published EEOC guidance, a company may always enforce certain standards, such as prohibitions on violence, stealing, or destruction of property, even if the employee claims she violated the policy due to her disability.  But the law requires an employer to be flexible when it comes to other policies, if making an exception would not be an “undue hardship.” See the EEOC's "Applying Performance And Conduct Standards To Employees With Disabilities.” 

A similar case against Walgreens is pending in California, Equal Employment Opportunity Commission v. Walgreen Co., --- F.Supp.2d ----, 2014 WL 1410311 (N.D.Cal.), 29 A.D. Cases 1031. It, too, involves a diabetic employee who was fired for violating the store’s anti-grazing policy. The employee, Josephina Hernandez, had worked for Walgreens for 18 years.  Like Linda Atkins, Hernandez told her employer that she had Type 2 diabetes. Walgreens allowed Hernandez to keep candy with her in case of low blood sugar, keep her insulin in the break room refrigerator, and take additional breaks to test her blood sugar or eat because of her diabetes. 

One day, while Hernandez was returning items in a shopping cart to shelves, she noticed she was shaking and sweating from low blood sugar. She did not have her personal candy with her and was in the magazine isle, so she opened a small bag of potato chips that was in her cart and ate some of them.  She went to pay for the chips at the cosmetic counter (where she had been instructed to pay for store items) but no one was there. Hernandez put the potato chips under the counter at her cash register and returned to restocking items. The Assistant Store Manager found the chips and asked whose they were. Hernandez said the chips were hers, and wrote up a statement saying that she ate the chips for her low blood sugar, and that she did not take the time to pay for them.  She was fired for taking the chips in violation of Walgreens's anti-grazing policy. 

The EEOC may have a more difficult time with this case than with the Dollar General Case. The major differences are that Atkins had specifically asked for permission to keep juice with her at the register and had been denied, that she was the only employee in the store at the time, that customers were waiting at the cash register, and that she paid for the juice immediately after consuming it.  

In contrast, Hernandez was one of many employees and was involved in restocking shelves when her hypoglycemic attack occurred.  She arguably could have sought out someone to pay rather than putting the chips under the counter and going back to stocking shelves. Given retailers’ ongoing concerns with employee theft, Walgreens may be able to demonstrate that it would be an undue hardship to permit even a disabled employee having a hypoglycemic attack to consume its merchandise without paying for it.  

On the other hand, a sympathetic jury might decide that a loyal, long term employee with a disability is surely entitled to some accommodation, such as not being terminated for a first offense of violating the anti-grazing policy.  

      - This blog entry was prepared by Elizabeth L. Newman.  You may reach her at enewman@kcnlaw.com.

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