Discrimination Claim of Pharmacist with Needle Phobia Advances


By Jeffrey Rhodes April 16, 2019

​A pharmacist with trypanophobia—a fear of needles—whom Walmart fired after the chain began requiring pharmacists to give immunization shots to customers can bring a wrongful discharge claim based on Walmart's initial offer to accommodate him, the 2nd U.S. Circuit Court of Appeals ruled.

In April 2016, Wal-Mart Stores, East LP (Walmart) announced that all current pharmacy employees would be required to be certified to administer immunizations by Oct. 16, 2016. The plaintiff, who worked as a pharmacist manager at Walmart and suffered from trypanophobia, sought an exemption under the Vermont Fair Employment Practices Act (VFEPA) from this change to his job description.

On July 19, 2016, the plaintiff received a letter from Walmart informing him that his request had been granted without qualification or condition, that he was able to perform the essential functions of his position, and that Walmart was reasonably accommodating his disability. The July letter also stated that the approval of his accommodation was subject to further review under certain conditions subsequent, including a change in his job description. According to the plaintiff, however, his job description was not altered at any time following his receipt of the July letter.

[SHRM members-only toolkit: How to Handle an Employee's Request for an ADA Accommodation]

Nonetheless, in October 2016, a Walmart representative informed the plaintiff that he would have to obtain the immunization certification to continue his job, which he declined to do. The plaintiff claimed that he was constructively discharged—unlawfully forced to resign—at that time. He then brought a lawsuit asserting wrongful discharge under the VFEPA and asserting common-law breach-of-contract claims.

The district court dismissed the plaintiff's lawsuit for failure to state a claim, concluding that he failed to allege that he could perform the essential functions of his job and that the July letter was insufficient to support his breach claims. The district court concluded, based in part on a November 2016 description of the plaintiff's former job, that administering immunizations was an essential function of the position. In doing so, the district court discounted the July letter because, according to the court, the letter stated a mere conditional exemption, subject to revision at any time.

On appeal to the 2nd Circuit, the plaintiff challenged the district court's conclusions concerning the significance of the July letter.

The appeals court noted that, when reviewing whether a job function is essential, it considers the employer's judgment, written job descriptions, the amount of time spent on the job performing the function, the work experience of past employees in the position and the work experience of current employees in similar positions.

In a prior case involving a Rite Aid pharmacist with a needle phobia, the appeals court reversed a jury verdict for the pharmacist, finding that it was unreasonable as a matter of law. In that case, Rite Aid revised its job description to require certification to administer immunizations and to include immunization in the list of essential duties and responsibilities. In that case, both the plaintiff and another pharmacist were fired for not complying with the certification.

In contrast, Walmart's July letter to the plaintiff stated that administering immunizations was not considered an essential function of the plaintiff's position. Furthermore, the plaintiff alleged that no change in his job description occurred after he received the letter. The 2nd Circuit found that the district court erred in relying on the November job description submitted by Walmart because it was not referenced in nor relied upon by the complaint and should therefore not have been considered on a motion to dismiss. The 2nd Circuit also found that the district court improperly discredited the plaintiff's allegations and discounted Walmart's own July statement to the plaintiff.

The 2nd Circuit thus reversed the district court's dismissal of the wrongful discharge claim under the VFEPA. However, the court upheld the dismissal of the plaintiff's breach of contract claims, finding that the July letter did not change the at-will nature of the plaintiff's employment.

Noel v. Wal-Mart Stores, East LP, 2d Cir., No. 18-cv-1139 (March 11, 2019).

Professional Pointer: Employers may add to the essential duties of a position for business reasons, such as to offer a new service to customers. When they do so, however, they must carefully address how the duty applies to their employees hired before the change to prevent a waiver of the duty or a claim that the duty is not truly essential to the position.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.


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