Circuit rejects six-figure disability discrimination verdict

This disability discrimination plaintiff won his trial in the Northern District of New York after his employer fired him because he had a needle phobia that made it impossible for him to give customers a flu shot on demand. The Court of Appeals has vacated the verdict, and the employer wins.

The case is Stevens v. Rite Aid Corp., decided on March 21. Plaintiff was a longtime pharmacist for Rite Aid for over 30 years. In 2011, Rite Aid decided to provide flu shots for its customers. Plaintiff was unable to immunize customers because he has a needle phobia, confirmed by his doctor. He was fired because of this. At trial, a sympathetic jury awarded plaintiff $485,000 in back pay, $1.2 million in front pay and $900,000 for pain and suffering. His lawyers got close to $400,000 in attorneys' fees. It is all gone. Here is what the Court of Appeals (Newman, Lynch and Droney) did:

1. Giving these vaccination shots was an essential part of plaintiff's job duties. That means he is not qualified to work as a pharmacist at Rite Aid unless he can perform that duty with or without a reasonable accommodation. While plaintiff argued this task was not an essential job requirement, the Court of Appeals disagrees and says no reasonable jury could find otherwise, since Rite Aid personnel testified without contradiction "that the company made a business decision to start requiring pharmacists to perform immunizations in 2011." The job description was revised to reflect this, and the company in fact had fired another pharmacist who had failed to undergo the immunization training program.

2. Plaintiff could still win the case with proof that the company could have reasonably accommodated his disability. The Court of Appeals emphasizes that "the issue is whether a reasonable accommodation would have enabled him to perform that essential function, not whether, as some of Stevens' arguments appear to suggest, he could perform his other duties as a pharmacist." The Court adds that "A reasonable accommodation can never involve the elimination of an essential function of a job." The Court finds there was no reasonable accommodation, rejecting plaintiff's claim that the company could have offered him desensitization therapy. District courts in this Circuit have ruled -- and the Second Circuit now holds -- that the employer is not required to provide this treatment as a reasonable accommodation. The Court also rejects plaintiff's argument that he could have been transferred to a pharmacy technician position; the record shows that Rite Aid offered plaintiff another position (including that one) that would not require flu shots "and Stevens offered no evidence that he requested, considered, or was open to a position as a pharmacy technician." The Court further rejects plaintiff's claim that the company could have hired a nurse to give the flu shots or sent him to a dual-pharmacist location where another pharmacist could have immunized people. The Court reasons that "those steps would be exemptions that would have involved other employees performing Stevens' essential immunization duties. Rite Aid was not required to grant Stevens these exemptions."Plaintiff also failed to prove that a vacant position at a dual=pharmacist store existed at the time of his termination."

This case has a strange twist. It was Rite Aid that appealed the verdict. Plaintiff cross-appealed. That is because the district court had actually thrown out the reasonable accommodation verdict in a post-trial motion before the case even reached the Second Circuit. Plaintiff appealed from that ruling. But the trial court let stand the wrongful discharge verdict in plaintiff's favor, which is the claim that led to the large damages award. Rite Aid appealed from that particular ruling. The Second Circuit in a footnote says that the failure to prove his reasonable accommodation claim means there cannot be a wrongful discharge claim. In other words, since plaintiff could not perform an essential job function, the company had the right to fire him.

The trial court, then, sustained the wrongful discharge verdict incorrectly. It did this by splitting the baby. It said that while plaintiff could not prove his reasonable accommodation claim, he was still fired because of his disability because plaintiff proved at trial that another pharmacist with needle-phobia was fired after he refused to attend immunization training. The trial court held, "while this pharmacist did not claim to have trypanophobia or make a claim under the ADA, the jury could reasonably have concluded that Rite Aid's decision to termination both pharmacists was because of their respective needle phobias." The trial court further held that plaintiff had a legitimate retaliation claim under the ADA because "evidence was sufficient for the jury to reasonably conclude that there was a causal connection between Plaintiff's protected activity of requesting an accommodation and his discharge." The Second Circuit does not address the wrongful discharge/retaliation reasoning at all. It assumes that if plaintiff cannot perform an essential job duty, there can be no wrongful discharge/retaliation claim.