By Brandi O. Brown, J.D.
Dollar General failed to convince a federal district court in Tennessee that a jury had been wrong to award judgment and damages in favor of a diabetic employee who violated an anti-grazing policy during a hypoglycemic episode or that it was entitled to a new trial. Although the employer argued there were other ways the employee could have handled her health episode, the court explained the jury could conclude that she had no reason to believe she would not also be punished under store policies that appeared to prohibit those measures as well. A jury could also conclude on the evidence that the employer was obligated to engage in the interactive process and failed to do so. The court granted some of the injunctive relief requested by the EEOC, including required trainings, and upheld damages and fee awards (EEOC v. Dolgencorp, LLC, September 28, 2017, Varlan, T.).
Hypoglycemic episode results in discharge. This suit was brought on behalf of a diabetic Dollar General employee fired for consuming merchandise without prior payment. The employee consumed part of a bottle of orange juice when she experienced a hypoglycemic episode and was unable to leave the front area of the store to obtain her own supplies. She admitted and explained the reason for the “grazing” violation to her managers, noting that she was forbidden by store policy from keeping juice up front with her and from leaving the front of the store when there were customers. Both managers knew the employee’s violation was based on a medical emergency yet she was still fired.
She filed an EEOC charge and the EEOC filed an ADA suit on her behalf, in which she intervened, alleging failure to accommodate and discriminatory discharge. A jury found in favor of the plaintiffs on both claims and awarded $27,565 in back pay and $250,000 in compensatory damages, although it declined to award punitive damages. The court entered judgment and the parties filed post-trial motions.
Motion for JMOL. Overall, the employer’s motions were unsuccessful. It argued that it was entitled to judgment as a matter of law on the employee’s reasonable accommodation claim because she did not present proof that an accommodation was needed and it did not have an obligation to engage in the interactive process. With regard to the former, the employer pointed to evidence that was presented at trial that there were methods of treating the employee’s hypoglycemic episode other than a bottle of orange juice, including items, such as glucose tablets, candy, and crackers, that could be kept in her pockets.
However, even if those methods were effective, the court explained, a reasonable juror could have concluded that the employee would not have known that those options did not violate the employer’s policies. The employer’s “Personal Appearance” policy, for example, prohibited employees from chewing gum and eating or drinking, except during breaks and only away from the sales floor and registers. It did not contain any exception for taking medication. A reasonable jury could conclude that such a policy would also prohibit the employee from consuming the items the employer noted.
The employer also argued that it was entitled to judgment because it was not obligated to engage in the interactive process. However, based on the evidence presented, a reasonable jury could have concluded not only that such an obligation existed, but also that the employer failed to satisfy that obligation. Under Sixth Circuit precedent, once an employee requests accommodation, the employer has a duty to engage in that process, in good faith. If reasonable accommodation would have been possible, the court explained, the employer could face liability.
Dollar General did not dispute that the employee requested an accommodation and that it did not engage in the interactive process. Among other things, it argued that it did not need to because doing so would have turned it into a “de facto healthcare provider.” However, said the court, the employer misunderstood the purpose of the process and its role—the purpose was for the employee to suggest solutions and for the employer to inform her whether those solutions would violate policies or whether it would allow exceptions as a reasonable accommodation.
Discharge. The court also rejected the employer’s argument that it was entitled to judgment on the employee’s discriminatory discharge claim. It noted that it had previously determined that the two nondisabled employees who were also fired on the same day as the employee were not similarly situated because they did not violate the anti-grazing policy because of a medical emergency. A reasonable jury could have determined that they were not comparable. Evidence was also presented that other employees who had violated the policy, by allowing grazing to occur in the store, were not disciplined or discharged, which a reasonable jury could conclude was more favorable treatment of similarly situated non-protected employees. The court also rejected the employer’s assertion that it was entitled to judgment on the discharge claim because there was no separate cause of action for discharge resulting from failure to accommodate.
New trial motion. Also rejected by the court was the employer’s motion for a new trial. Among other arguments, the employer faulted several jury instructions given by the court. One was an instruction that the jury could find liability on the discharge claim if it concluded that the employer had fired the employee for disability related misconduct, which the employer argued improperly excised the requirement of animus. However, the court explained, proof of discriminatory intent “is not determinative in all cases” and a defendant need not “act with an improper state of mind in order to be liable for discriminatory discharge.”
The court rejected the employer’s argument that the compensatory damages were excessive and declined to reduce the damages.
Injunctive relief and fees. The EEOC moved the court to amend the judgment to include injunctive relief. The court granted the motion in part, agreeing that injunctive relief was necessary given the number of supervisory employees involved in the decisionmaking process and their continued employment. The court agreed that the relief should span the entire region in which the store was situated. However, the court rejected most of the relief requested by the EEOC, including a letter from the CEO and stricter injunctive relief with regard to its disciplinary and termination decisions. However, the court agreed that the employer should be required to provide training to all employees in the region for a term of three years. The court also adopted the magistrate judge’s recommendation regarding the employee’s attorneys’ fees and costs, awarding over $445,000 in fees and more than $1,675 in expenses.
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