Needle-phobic pharmacist prevails on appeal in disability disability case

If you want a reasonable accommodation under the disability laws, you have to show the accommodation will not eliminate an essential job function, so that you can still perform your job duties despite the accommodation. These cases can be won and lost on whether the accommodation actually impacts an "essential" job duty.

The case is Noel v. Wal-Mart Stores, LP, a summary order issued on March 11. Noel was a pharmacist who suffers from trypanophobia (or needle phobia). That was a problem. In April 2016, Wal-Mart announced that all new pharmacy employees would be required to be certified to administer immunizations right away and all other employees would be required to be so certified by October 16, 2016. Since immunizations involve needles, you get the picture. Noel could not do this. He asked management to exempt him from this requirement. In June 2016, Wal-Mart told him in writing that administering immunizations was not an essential job function. Good news for Noel.

But then in October 2016, a Walmart representative told Noel that he would have to obtain certification to continue his job, which Noel declined to do. Noel claims that he was constructively discharged at this time. The district court granted Wal-Mart's Rule 12(b)(6) motion on the basis that administering immunizations was an essential job function, so that no accommodation could allow him to perform his duties.

The Court of Appeals (Hall, Lynch and Gardephe [D.J.]) reverses. Noel has a case. The district court overlooked his Wal-Mart told Noel in July 2016 that using the needles was not an essential job duty. Here's the law on essential job duties:

When considering whether a job function is “essential,” “this Court considers ‘the employer’s judgment, written job descriptions, the amount of time spent on the job performing the function, the mention of the function in a collective bargaining agreement, the work experience of past employees in the position, and the work experience of current employees in similar positions.’”

This is a fact-specific inquiry. That means that a recent Second Circuit case on similar facts, Stevens v. Rite-Aid Corp., 851 F.3d 224 (2d Cir. 2017), where the jury verdict in plaintiff's favor was vacated because the needle-phobic pharmacist could not show that eliminating the immunization job duty was not an essential job duty, does not control this case. In Stevens, there was no dispute the needles were an essential duty. Not in Noel's case.

In Stevens, it was undisputed that Rite Aid changed the job description for pharmacists to include immunizations as an essential duty of the position. Here, however, Noel specifically alleges that his job description had not yet changed as of the time of his constructive discharge, and Walmart’s July letter—which grants him  an accommodation on the ground that administering injections was not an essential function of the job—tends to support that allegation. The question then becomes whether the district court was correct when it held that, even taking the factual allegations of the complaint as true, administering injections was an essential function of Noel’s job.

It all comes back to the July 2016 letter that said administering the needles was not an essential job function. The Second Circuit concludes,

The only way to arrive at the conclusion reached by the district court—that it was established as a matter of law that administering immunizations was an essential function of Noel’s job—is to both discredit Noel’s well-pleaded allegation and discount Walmart’s own July statement. This a court
may not do on a motion to dismiss. At least at this stage of the litigation, the district court erred by concluding, as a matter of law, that administering immunizations was an essential function of Noel’s job.