According to a lawsuit filed last week by the EEOC, Josefina Hernandez, a cashier at Walgreens’ South San Francisco store, was on duty when she opened a $1.39 bag of chips because she was suffering from an attack of hypoglycemia (low blood sugar). Hernandez had worked for Walgreens for almost 18 years with no disciplinary record, and Walgreens knew of her diabetes. Nevertheless, Walgreens fired her after being informed that Hernandez had eaten the chips because her blood sugar was low, even though she paid for the chips when she came off cashier duty.
“I almost always carry a piece of candy in my pocket for situations when I feel my blood sugar getting low, but I didn’t have anything on me this time,” said Hernandez. “I knew I needed to do something quickly, so I reached for a bag of chips and paid for them as soon as I could. I worked for Walgreens with no problems almost two decades, so I am very upset to lose my job over this.”
The ADA prohibits disability discrimination and requires employers to make reasonable accommodations to employees with disabilities. The EEOC filed a lawsuit (EEOC v. Walgreen Co., Case No. CV11-4470-JSC) against Walgreens in U.S. District Court for the Northern District of California last week, after first attempting to reach a voluntary settlement. The suit seeks monetary damages, including back pay, compensation for emotional distress and punitive damages, as well as measures to prevent future discrimination by the employer.
Jon Hyman of the Ohio Employer's Law Blog does as good a job as can be done defending Walgreens' actions. He even goes so far as to call Ms. Hernandez a thief. I think that's a little over the top for a defense strategy in this case given that (1) its clearly false; and (2) it would likely make a punitive damage verdict almost a certainty. But then, I guess the company really doesn't have much else to argue, does it?
At trial, Walgreens will presumably say that Ms. Hernandez had any number of alternative actions available to her, including:
- Leaving her station to get some food from her purse or locker (for which she would undoubtedly be fired); or
- Risk going into diabetic shock.
From the company's point of view, choice 2 is obviously the preferable solution. We will just have to wait and see if a jury agrees.
Background on the Company: Walgreens is based outside Chicago in Deerfield, Ill., and has more than 8,000 stores in the United States and its territories. According to its June 21, 2011 financial report, Walgreens’ net earnings for the nine months ending May 31, 2011 totaled $1,922,000,000 (Not including the $1.39 Ms. Hernandez paid the company for the chips right before it fired her.)
Read More: Houston Chronicle Article
UPDATE: Inc. Magazine has picked up the story.