Update: Diabetic Worker Fired for “Grazing” on Chips Receives Settlement

Jul 8 2014 - Disabilities, Termination - Gail Cecchettini Whaley

A long-term employee of a South San Francisco Walgreens recently received a $180,000 settlement to resolve a disability discrimination claim brought by the Equal Employment Opportunity Commission (EEOC). HRWatchdog previously reported on this lawsuit.

According to the lawsuit’s allegations, the employee, Josephina Hernandez, was fired when she grabbed a $1.39 bag of potato chips from a store shopping cart while returning items to various shelves and ate some of the chips to stabilize her low-blood sugar during a hypoglycemic attack. Hernandez, an 18-year employee, did not have a prior disciplinary record, and the company knew of her diabetes. She attempted to pay for the chips but no one was at the register so she put the half-eaten bag under the counter and returned to work.

The assistant manager found the bag and reported Hernandez. Yet, the company did not seek clarification from Hernandez when she provided a statement regarding the incident and wrote “my sugar low, not have time.”

She was terminated for violating Walgreens’ strict policy against employee theft in the form of “grazing” – eating food merchandise without paying for it.

Walgreens sought to have the case dismissed before trial, but, in April, a U.S. District judge noted that “Walgreens has failed to allege any misconduct that is unrelated to her disability.” The judge held that a jury should decide whether Walgreens should have accommodated Hernandez’s actions.

Instead of heading to trial, this case has now settled. According to EEOC Regional Attorney William Tamayo, “People may think this case revolves around theft, but the real issue is how a company responded to a valued 18-year employee, whom it knew for 13 years to be diabetic, and who attempted to pay for the chips after she recovered from her hypoglycemic attack.”

In addition to paying Hernandez $180,000, Walgreens agreed to:

  • Post its revised policy regarding accommodation of disabled employees on its employee intranet site;
  • Provide anti-discrimination training;
  • Make periodic reports to the EEOC; and
  • Post a notice regarding the settlement consent decree for three years.

This case highlights the need for a case-by-case analysis when dealing with a reasonable accommodation issue. Consult legal counsel whenever you have disciplinary questions that may involve an employee’s known disability.

Gail Cecchettini Whaley, CalChamber Employment Law Counsel/Content

HRCalifornia’s HR Library offers information on examples of accommodations and the interactive process in the Reasonable Accommodation of Disabilities section. Not a CalChamber member? Learn more about what HRCalifornia can do for you.

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