Employment Law Daily Dollar General discriminated against diabetic employee fired for violating ‘anti-grazing’ policy
Thursday, August 9, 2018

Dollar General discriminated against diabetic employee fired for violating ‘anti-grazing’ policy

By Kathleen Kapusta, J.D.

In a case brought by the EEOC on behalf of a diabetic Dollar General sales associate, the Sixth Circuit found a jury permissibly determined that the discount retailer discriminated on the basis of disability when it fired the employee after discovering she drank orange juice from the store’s cooler during hypoglycemic episodes. The appeals court also upheld the district court’s award of $445,322 in attorneys’ fees to the employee’s attorneys (EEOC v. Dolgencorp, LLC dba Dollar General Corp., August 7, 2018, Sutton, J.).

Hired as a sales associate in 2009, the employee, a type II diabetic, occasionally suffered from low blood sugar (hypoglycemia). When an episode occurs, she must ingest 100 calories of glucose but no more. The employee was later promoted to lead sales associate, a position that put her in charge of handling the cash in the store during the day, depositing the cash at night, and closing the store.

No OJ at the register. Prior to her promotion, when she experienced hypoglycemic episodes at work, she typically went to the break room, where she kept orange juice in a cooler. After her promotion, she often worked alone in the store. To avoid the risk of seizing or passing out during a hypoglycemic episode, she asked her manager if she could keep orange juice at her register, but her manager refused, telling her it was prohibited by store policy. When she experienced two hypoglycemic episodes in late 2011 and early 2012, she took a bottle of orange juice from the store cooler, drank it, paid the $1.69 she owed for each bottle of juice, and told the store manager what had happened.

Grazing policy violation. In March 2012, the district manager and the regional loss prevention manager conducted an audit of the store to address employee theft and other merchandise “shrinkage” issues. During the audit, the employee admitted she had twice taken orange juice from the store cooler during a medical emergency and paid for it each time. Finding that these two events violated Dollar General’s “grazing policy,” which forbids employees from consuming merchandise in the store before paying for it, the managers fired her.

Lower court proceedings. After employee filed a discrimination complaint with the EEOC, it sued on her behalf under the ADA. She intervened in the suit and her reasonable accommodation and discriminatory discharge claims proceeded to trial. The jury found in her favor on both, awarding her $27,565 in back pay and $250,000 in compensatory damages. The district court awarded her lawyers $445,322 in attorney’s fees and $1,677 in expenses.

Timeliness. On appeal, the court first rejected Dollar General’s assertion that the employee waited too long to file her complaint. Although a claimant under the ADA must file a charge with the EEOC within 180 days of the “alleged unlawful employment practice,” the court noted that in a “deferral state”—one that has a “law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice”—the claimant also must exhaust her claim by filing it with the state or local agency. Further, filing a claim with the state or local agency extends the time for filing a claim with the EEOC to 300 days.

Here, said the court, the employee claimed that Dollar General fired her because of her disability. The Tennessee statute prohibits “discrimination in the hiring, firing and other terms and conditions of employment,” just as the ADA prohibits “discriminat[ion] … in regard to … the hiring, advancement, or discharge of employees … and other, terms, conditions, and privileges of employment.” Because the employee filed her disability discrimination charge with a state agency that had authority to entertain it, she received the benefit of the 300-day limitations period.

Reasonable accommodation. Dollar General next argued that the jury erred in finding it discriminated against the employee by failing to provide her with a reasonable accommodation. It had no duty to accommodate her, it contended, because she could treat her hypoglycemia in other ways, such as glucose tablets, honey, candy, or peanut butter crackers. Finding that these options did not make the jury’s verdict unreasonable, the court pointed out that the company’s personal appearance policy prohibited employees from eating or drinking, except during breaks. Thus, said the court, “just as a jury could find that the company prohibited employees from drinking orange juice at the register, so too could it find that it prohibited them from consuming glucose tablets, cough drops, candy, and honey packets at the register.”

Accommodation request rejected. Although, as Dollar General pointed out, the policy provided that disability-related exceptions might be available, the employee’s request for an exception was rejected. Further, said the court, once the employee requested this reasonable accommodation, Dollar General had a duty to explore the nature of her limitations, if and how those limitations affected her work, and what types of accommodations could be made.

Alternate glucose sources? Even if the company’s policy permitted alternative glucose sources, the employee presented evidence that candy could get crushed or melted in her pocket and its sugar content was more difficult to measure; honey packets were hard to use because she had to stick her tongue in the packet to get the honey out; and she couldn’t imagine doing her job while “cramming peanut butter cracker in [her] mouth at the same time.” And while Dollar General insisted that “glucose is glucose,” and thus its accommodate-thyself defense should have prevailed, all that mattered, said the court, is whether the jury had a legally sufficient basis to conclude that Dollar General failed to provide the employee reasonable alternatives to keeping orange juice at her register. “Ample evidence supported that conclusion.”

Discriminatory discharge. As to Dollar General’s claim it had a legitimate, nondiscriminatory reason for firing the employee, its anti-grazing policy, the court pointed out that a company may not illegitimately deny an employee a reasonable accommodation to a general policy and use that same policy as a neutral basis for firing her. Further, a neutral policy is of no moment when an employee presents direct evidence of discrimination, the court observed, noting that failing to provide a protected employee a reasonable accommodation constitutes direct evidence of discrimination. And though Dollar General also argued that the verdict could not stand because the employee never produced evidence of animus towards the disabled, an employer violates the Act whenever it discharges an employee “on the basis of disability,” not only when it harbors ill will.

Attorneys’ fees. Finally, noting that a magistrate judge prepared a report and recommendation on attorneys’ fees, which the district court adopted and which considered the market rate in the area, fee awards in similar cases, and the rate necessary to entice legal counsel to perform this kind of work, the Sixth Circuit affirmed the lower court’s award of attorneys’ fees. Although Dollar General argued that the magistrate overlooked Perdue v. Kenny A. ex rel. Winn—in which the Supreme Court warned of double-counting, stressing that “factors subsumed in the lodestar calculation cannot be used as a ground for increasing an award above the lodestar”—when it considered the success and complexity of the employee’s case, “the magistrate in this case did no such thing,” said the court, finding he considered both success and complexity in his calculation of the lodestar amount, not as an enhancement to the lodestar.

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