By Marjorie Johnson, J.D.
At this early stage, the employee sufficiently alleged that being certified to provide immunizations was not an essential function of his job and the district court shouldn’t have considered a post-termination job description provided by Walmart.
A pharmacy manager who had a severe fear of needles revived his wrongful discharge lawsuit against Walmart since the district court erred in relying on a post-termination job description and acted prematurely in dismissing his claim on the pleadings. The Second Circuit ruled in an unpublished opinion that the employee plausibly alleged that being certified to administer immunizations was not an essential function of his job at the time he was constructively discharged, and his allegations were further supported by Walmart’s letter initially granting his request for an exemption from its new immunization requirement. However, his contract-based claims were properly tossed since the letter did not create a contract or constitute a promise that he would never have to administer immunizations (Noel v. Wal-Mart Stores, East LP, March 11, 2019, per curiam, unpublished).
Announcement of new policy. In April 2016, Walmart announced that all new pharmacy employees would be required to be certified to administer immunizations and all incumbents would need to obtain such certification by October 16, 2016. The employee, a pharmacist manager who suffered from trypanophobia (needle phobia), sought an exemption from the policy as a reasonable accommodation to his disability.
Accommodation granted. On July 19, he received a letter stating that he had been granted his reasonably requested accommodation “without qualification or condition” and that he “was capable of performing the essential functions of his position.” The letter also provided that the approval of his accommodation was subject to further review under certain conditions subsequent, including a change in his job description. However, he asserted that his job description was not altered at any time after he received the letter.
Change of heart. On October 18, Walmart informed the employee that he would have to obtain certification to continue his job after all. He declined to do so, allegedly resulting in his constructive discharge. He then brought this lawsuit asserting wrongful discharge under the Vermont Fair Employment Practice Act (VFEPA) as well as common law contractual claims.
District court dismisses lawsuit. The district court granted Walmart’s motion to dismiss, finding that the employee failed to plausibly allege that he could perform the essential functions of his job and that the July letter was insufficient to support his contractual claims. In concluding that administering immunizations was an essential function, the court relied in part on the April announcement and a November 2016 job description. It also discounted Walmart’s statement in the July letter that administering immunizations was not an essential job function, finding that the letter stated, “a mere conditional exemption, explicitly subject to revision at any time.”
Guidance from similar ADA case. In considering whether the pharmacist sufficiently asserted that he was able to perform the essential functions of his job at the time of his alleged wrongful discharge, the Second Circuit was guided by its decision in Stevens v. Rite Aid Corp., where it had tackled the claims of another trypanophobic pharmacist who asserted nearly identical claims under the ADA. After Rite Aid announced its new policy requiring pharmacists to administer immunization injections, the pharmacist sought and was denied an exemption as a reasonable accommodation. When he declined to get the certification, he was fired.
At trial, Rite Aid personnel testified that it had made a business decision to require all pharmacists to administer immunizations so that customers could receive immunizations any time the pharmacy was open. Rite Aid also presented evidence that it had revised its job description to require certification and to include immunization in the list of essential duties and that another pharmacist was fired for not complying with the certification program. The Second Circuit concluded on appeal that “his inability to perform an essential function of his job as a pharmacist is the only reasonable conclusion that could be drawn from the evidence.”
Not essential function as matter of law. Though the first finding in Stevens mirrored Walmart’s position in this case (that it intended the certification program to ensure customers could receive immunizations at any time), the second Stevens finding differed significantly. In Stevens, Rite Aid undisputedly changed the job description for pharmacists to include immunizations as an essential duty. Here, however, the employee specifically alleged that his job description had not yet been changed when he was constructively discharged. Walmart’s July letter granting him an accommodation on the ground that administering injections was not an essential function of the job tended to support that allegation.
At this stage, the district court erred in finding as a matter of law that administering immunizations was an essential function. It should not have relied on the November job description submitted by Walmart, which postdated the employee’s discharge. And while the April announcement added some weight to the retailer’s argument that administering immunizations was an essential function when the policy went into effect on October 16, 2016, its July letter to the employee specifically stated that administering immunizations was not an essential function of his job. Therefore, he plausibly alleged that administering immunizations was not an essential function of his job and that no condition subsequent was met that would allow Walmart to revisit its grant of an accommodation.
Contract claims fail. However, the employee failed to revive his common law claims since he provided no authority for his contention that the grant of an accommodation modified the at-will employment relationship. His only alleged “detrimental reliance” for his promissory-estoppel claim—his participation in Walmart’s reasonable accommodation process—necessarily predated the alleged promise of an accommodation. Finally, he failed to allege facts from which it could be plausibly inferred that Walmart’s rescinding of the accommodation was “cruel or shocking” to the average person’s “conception of justice,” as required to sustain his public-policy claim.
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