Labor & Employment Law Daily Pharmacist who couldn’t physically comply with immunization policy gets discovery on Walmart’s disability, religious accommodations
Thursday, November 15, 2018

Pharmacist who couldn’t physically comply with immunization policy gets discovery on Walmart’s disability, religious accommodations

By Kathleen Kapusta, J.D.

In a pair of orders issued the same day, a federal court in Washington granted in part motions to compel discovery filed by a former Walmart pharmacist who alleged she was fired because she could not perform a job function—injecting patients with immunizations—due to her physical disabilities of Multiple Sclerosis and Cerebral Palsy. She also claimed that prior to her termination, her requested accommodation was ignored or refused. After finding that Walmart’s prior untimely production of requested financial documents was problematic, the court ordered it to produce any additional financial documents not yet produced. Further, it must produce immunization information broken down by type if it hasn’t done so already. And while it was also ordered to produce discovery for both medical/disability and religious accommodations to its mandatory injection policy, the court limited discovery regarding the religious accommodations (Jacobs v. Wal-Mart Stores, Inc., November 9, 2018, Bryan, R.).

Hired by Walmart in 2007, the pharmacist worked at two stores that were close to her home. In 2013, she alleged in a motion for partial summary judgment, that Walmart started a pilot program where pharmacists could “opt-in” to provide immunizations. The following year, it announced an upcoming change to the policy—pharmacists must become certified to give immunizations. Although she lacked the fine motor skills to professionally provide immunizations with a needle and syringe, she acquired the necessary CPR and immunization certification.

Accommodation. From late 2014 through her separation in April 2017, Walmart did not require the store where she worked to provide immunizations on days she was working alone. Rather, she claimed, pharmacy techs were instructed to tell patients they did not have an immunizing pharmacist on duty that day. According to the employee, in November 2016, Walmart represented the policy change as inflexible. Although she was temporarily accommodated, she was placed on administrative leave in April 2017. In March 2018, she requested she be able to use an injector pen, which does not require the same motor skills as a traditional needle and syringe injection, but her request was denied. She was ultimately terminated, she alleged, when her leave expired and she was unable to find another position.

Financial documents. In her second motion to compel discovery, the employee sought information she claimed was previously ordered by the court in September 2018. In that order, the court required that Walmart produce financials for its pharmacy division as a whole and for all stores where the employee worked. Walmart’s response, she contended, was untimely and consisted of a dump of over 5,000 financial documents. As a threshold matter, the court found that the company’s untimely production of financial documents was problematic as it had ordered production of the financial discovery within 10 days of the September order and it produced 5,500 pages of discovery on October 18.

Further, said the court, it was difficult to determine the sufficiency of the production. Although Walmart claimed it did not track gross profit and loss data for its local and national pharmacies, the employee argued that a Rule 30(b)(6) deposition revealed it did in fact possess monthly profit and loss statements. Accordingly, the court ordered Walmart to immediately produce any additional financial documents revealed by the deposition that had not yet been produced.

Key documents. As to the production of a 2016 version of “Discussion Points,” which was intranet content accessed via hyperlink and which the employee claimed Walmart did not produce, the court found the company sufficiently established it produced all discovery in its possession. Its claim, however, that it undertook extensive efforts to produce a web-based toolkit was lacking, said the court, noting that while its previous order required production within 10 days, Walmart’s first effort to produce the toolkit in a reviewable format was on October 18, after the employee filed this motion to compel. Further, it produced only a part of the toolkit, offering to give the employee’s counsel the chance to review the intranet hyperlinks. Noting that this offer coincided with a substantial production of other discovery, the court found that these actions in the aggregate violated the spirit and the letter of its September 2018 order. Accordingly, said the court, if Walmart has not already produced the remainder of the toolkit in a reviewable format, its production was immediately due.

As to the employee’s request to know the immunization types, because it related to her accommodation request to use an injector pen, which is approved for some but not all immunization types, the court found that if not yet produced, immunization information broken down should be provided within 10 days.

Accommodation requests. In her third motion to compel discovery, the employee requested that Walmart identify and describe each accommodation request relating to its pharmacist immunization requirement. She also argued that this should be construed to include requests for accommodation on religious grounds. While she claimed Walmart’s response to her discovery requests were inadequate, it argued that religious accommodation requests were irrelevant and had never been at issue in previous discovery exchanges. It also sought to limit the scope of its production to stores within the employee’s division and to accommodation requests granted after the injection policy became effective in April 2017.

Religious accommodations. After finding the employee sought relevant information, the court rejected Walmart’s argument that discovery on its religious accommodation was irrelevant because she requested a complete exemption on disability grounds whereas in the religious accommodation context, pharmacist-employees seek exemption from only certain types of immunizations. This argument, the court pointed out, ignored the employee’s core theory that Walmart denied the accommodation of a needle-less injection device, which apparently works for some, but not all immunization types.

As to Walmart’s assertion that producing discovery on its religious accommodation to the policy was unduly burdensome as such accommodations are not tracked like disability accommodation requests and it is difficult to discern where the information is located because it can’t be found within a particular department, the court explained that as a general matter, Walmart’s corporate organizational structure should not shield its production of otherwise discoverable information. The court, however, limited production of its religious accommodations discovery to the employee’s division and to accommodation letters issued by Walmart, finding that it need not produce claim file notes.

The court, however, found indefensible Walmart’s request to limit production of discovery to only those who were granted an accommodation after the April 2017 policy became mandatory. Because it announced its mandatory immunization policy in April 2016, the timing of accommodation requests would not appear to be an undue burden, said the court.

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