U.S. Equal Employment Opportunity Commission
South San Francisco Walgreens Fired Longtime Employee With Diabetes Over a $1.39 Bag of Chips, Federal Agency Charged
SAN FRANCISCO - Drugstore giant Walgreens has agreed to pay $180,000 to a longtime employee with diabetes and to implement revised policies and training to settle a federal disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.
The EEOC's lawsuit charged that former cashier Josefina Hernandez, who has Type II Diabetes, was fired by a South San Francisco Walgreens because of her disability after she ate a $1.39 bag of chips during a hypoglycemic attack in order to stabilize her blood sugar level. Hernandez had worked for Walgreen for almost 18 years with no disciplinary record, and Walgreens knew of her diabetes. Yet the company security officer testified that he did not understand nor did he seek clarification when Hernandez wrote, "My sugar low. Not have time," in reply to his request for an explanation of why she took the chips before paying.
Terminating a qualified employee because of a disability violates the Americans with Disabilities Act (ADA). The law also requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would impose an undue hardship for the employer. After an investigation by EEOC investigator Carlos Rocha, and after attempting to resolve the case through pre-litigation conciliation efforts, the EEOC filed the lawsuit (EEOC v. Walgreen Company, Case No. CV 11-04470) in U.S. District Court for the Northern District of California.
On Apr. 14, U.S. District Judge William Orrick noted that "Walgreen has failed to allege any misconduct that is unrelated to her disability," and denied Walgreens' motion for summary judgment. At this hearing, Walgreens' own legal counsel acknowledged Hernandez as a long-term valued employee with a very good track record, and described her termination as a "harsh result" perceived by the EEOC as unfair.
"Not only was this harsh and unfair, but it was illegal, and that's why the EEOC sued to correct this wrong," said EEOC San Francisco Regional Attorney William R. Tamayo. "People may think this case revolves around theft, but the real issue is how a company responded to a valued 18-year employee, whom it knew for 13 years to be diabetic, and who attempted to pay for the chips after she recovered from her hypoglycemic attack."
According to the consent decree settling the suit ordered by Judge Orrick, Walgreens agreed to pay Hernandez $180,000 and to post its revised policy regarding accommodation of disabled employees on its employee intranet site. The company will also provide anti-discrimination training, make periodic reports to the EEOC, and post a notice regarding the decree for three years. EEOC Supervisory Trial Attorney Jonathan Peck and Trial Attorneys Cindy O'Hara and Peter Laura litigated the case for the federal agency.
Hernandez said, "I would like to thank the EEOC for filing the case for me, the team at EEOC for their great work, and my family for their support during the case."
EEOC San Francisco District Office Director Michael Baldonado said, "This settlement is a good result, because the injunctive remedies in the decree increase the likelihood that Walgreens employees will not suffer disability discrimination in the future, its employees will be able to request accommodations under the law, and Ms. Hernandez is free to be rehired and cannot be retaliated against."
Chris Murray, senior attorney for Walgreens, stated, "We are pleased to have reached a resolution that avoids the time and expense of continued litigation for all parties involved. This resolution is consistent with our past and future commitment as an industry leader for accommodating the special needs of any employee who has an illness or disability."
According to company information, in fiscal year 2013, Deerfield, Ill.-based Walgreens had 248,000 employees, 8,582 stores and posted $72.2 billion in sales.
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov.