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Friday, April 18, 2014

Walgreens Looses on "Shaky" Defense

by Tommy Eden

Josefina Hernandez, who suffers from diabetes, was discharged instead of being accommodated by Walgreens at its South San Francisco location. After almost eighteen years of employment with no prior problems, Hernandez was fired for consuming a bag of chips valued by Walgreens at $1.39 prior to purchasing it. While at work Hernandez began shaking and sweating from low blood sugar and consumed the chips to stabilize her blood sugar in the midst of her hypoglycemic attack.

Hernandez almost always carried a piece of candy in her pocket for situations when she felt her blood sugar getting low, but she did not have anything on her that day. She knew she needed to do something quickly, so she reached for a bag of chips. After she was under control she went to the cash register to pay for the chips. No one was there so she left the empty bag of chips under the counter planning to come back and pay for them later. Her manager found the empty chip bag and accused her of violating the Walgreens “anti-grazing” policy. 

When her supervisor confronted Hernandez about the “grazing” incident, she admitted to opening and eating the chips. Hernandez was asked to provide a written statement which read, "My sugar low, not have time."  Walgreens fired Hernandez for a violation of their strict "anti-grazing" policy which forbids employees from eating store merchandise before paying for it. Hernandez supervisor claimed he fired her because there was no "gray area" or "discretion" under Walgreen's policy. Hernandez then filed a charge with the Equal Employment Opportunity Commission, who then filed a lawsuit on her behalf.

Recently, a Federal District Judge in San Francisco rejected Walgreen's motion for summary judgment allowing the EEOC to pursue its Americans with Disabilities Act (ADA) suit on behalf of Hernandez. Judge Orrick held that whether or not Walgreen should have accommodated Hernandez based on her known medical condition was "a question of fact for the jury." The case is EEOC v. Walgreen Co..

Common Sense Counsel: This lawsuit is about Walgreen's efforts to prevent employee theft of store merchandise, which Walgreens estimates results in $350 million in losses each year, versus accommodating a disabled worker.

Following these five steps will help put your ADA defense on firm ground:

1)    Have a written and signed job description compliant with the ADA. How can you accommodate when you do not have a clear understanding with the employee of their essential job duties, functions and work environment?

2)    Engage in a good-faith interactive discussion with the employee regarding the requested accommodations;

3)    Put it in writing. When challenged by the EEOC, employers must provide some evidence that they engaged in an interactive process and considered the employee’s request. A memo or email confirmation concerning those efforts is best;

4)    Be timely in your response. Otherwise, not hearing from you the employee will likely seek out the help of a governmental agency;  and

5)    Listen well and respond only when you have all of the information and a well-considered ADA compliant plan or response. Responding too quickly may put you on shaky ground like Walgreens – and in federal court.

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901.