Stevens v. Rite Aid Corporation

Filing

OPINION, reversing the district court s post-trial denial of rite aid s motion for judgment, affirming the district court s dismissal of stevens failure-to-accommodate claim, and remanding for entry of a revised judgment in favor of rite aid., by JON, GEL, CFD, FILED.[1993280] [15-277, 15-279, 15-3491]

Case 15-277, Document 150, 03/21/2017, 1993280, Page1 of 16

15-277-cv(L)
Stevens v. Rite Aid Corporation

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2016
Argued: October 6, 2016

Decided: March 21, 2017

Docket Nos. 15-277(L), 15-279(Con), 15-3491(xap)
- - - - - - - - - - - - - - - - - - - - - CHRISTOPHER STEVENS,
Plaintiff-Appellee-Cross-Appellant,
v.
RITE AID CORPORATION, DBA Rite Aid Pharmacy,
AKA Eckerd Corporation, DBA Rite Aid,
Defendant-Appellant-Cross-Appellee.
- - - - - - - - - - - - - - - - - - - - - -

Before:

NEWMAN, LYNCH, and DRONEY, Circuit Judges.

Appeal from the January 27, 2015, judgment and appeal
and cross-appeal from the September 23, 2015, post-trial
order of the District Court for the Northern District of
New

York

(Thomas

J.

brought

under

the

similar

state

law.

McAvoy,

Americans
The

District
with

judgment,
1

Judge)

in

Disabilities
entered

after

a

case

Act

and

a

jury

Case 15-277, Document 150, 03/21/2017, 1993280, Page2 of 16

trial, awarded substantial damages to the plaintiff on his
claims of wrongful termination, retaliation, and failure to
accommodate. The post-trial order dismissed the plaintiff’s
failure-to-accommodate claim, granted a new trial unless
plaintiff

agreed

to

a

remittitur

(later

accepted),

substantially granted plaintiff’s claims for interest, and
denied defendant’s motion for judgment as a matter of law
on plaintiff’s wrongful discharge and retaliation claims.
On the appeal, we reverse the District Court’s posttrial denial of Rite Aid’s motion for judgment as a matter
of

law

on

Stevens’

federal

and

state

law

wrongful

termination and retaliation claims; on the cross-appeal, we
affirm the District Court’s dismissal of Stevens’ failureto-accommodate

claim.

We

remand

for

entry

of

a

revised

judgment in favor of Rite Aid.

Allyson N. Ho, Morgan, Lewis &
Bockius LLP, Dallas, TX (John C.
Sullivan, Morgan, Lewis &
Bockius LLP, Dallas, TX,
Michelle Seldin Silverman,
Morgan, Lewis & Bockius,
Princeton, NJ, on the brief),
for Appellant-Cross-Appellee
Rite Aid Corporation.
2

Case 15-277, Document 150, 03/21/2017, 1993280, Page3 of 16

Janet D. Callahan, Hancock
Estabrook, LLP, Syracuse, NY
(Daniel B. Berman, Robert C.
Whitaker, Robert J. Thorpe,
Hancock Estabrook, LLP,
Syracuse, NY, on the brief), for
Appellee-Cross-Appellant
Christopher Stevens.
JON O. NEWMAN, Circuit Judge:
This appeal and cross-appeal concern a pharmacist who
suffers from trypanophobia – fear of needles. The pharmacy
where he was employed discharged him because he could not
comply with a company policy that required pharmacists to
administer
action

immunization

precipitated

injections

a

suit

under

to
the

customers.

That

Americans

with

Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq. and
similar state law. Rite Aid Corporation (“Rite Aid”), the
employer,

appeals

from

the

January

27,

2015,

judgment

entered by the District Court for the Northern District of
New

York

(Thomas

Christopher
after

a

J.

Stevens,

jury

trial.

McAvoy,
the

District

pharmacist,

Rite

Aid

also

Judge)

substantial
appeals

and

awarding
damages
Stevens

cross-appeals from the District Court’s September 23, 2015,
post-trial

order.

That

order
3

dismissed

the

plaintiff’s

Case 15-277, Document 150, 03/21/2017, 1993280, Page4 of 16

failure-to-accommodate claim, granted a new trial unless
plaintiff

agreed

to

a

remittitur

(later

accepted),

substantially granted plaintiff’s claims for interest, and
denied defendant’s motion for judgment as a matter of law
on plaintiff’s wrongful discharge and retaliation claims.
Background
In 2011, Rite Aid, and other large pharmacy chains, started
requiring pharmacists to perform immunizations in order to fill
an unmet need for vaccinations in the healthcare market. In
April 2011, Rite Aid revised its job description to require
pharmacists

to

hold

a

valid

immunization

certificate

1

and

included a reference to immunizations in the list of “essential
duties and responsibilities” for pharmacists.

Before his termination in August 2011, Stevens worked
in upstate New York as a full-time pharmacist for Rite Aid
and

its

predecessor

responsible
customers

for

pharmacies

handling

regarding

their

for

34

medications
medications.

1

years.
and
In

He

was

counseling
March

2011,

According to testimony at trial, a person must be licensed
by New York to practice as a pharmacist. However, a pharmacist
need not obtain an immunization certificate to be licensed in
New York. Rather, immunization certification is a separate,
optional process for New York pharmacists.

4

Case 15-277, Document 150, 03/21/2017, 1993280, Page5 of 16

Stevens

received

an

e-mail

from

his

district

manager,

William Spink, informing him that Rite Aid was going to
require all pharmacists to give immunization injections to
customers.
Stevens obtained a note from his treating physician,
Dr. Mark Warfel, stating that Stevens is “needle phobic and
cannot administer immunization by injection.” Stevens wrote
a letter to Spink explaining that his trypanophobia causes
him to experience “lightheadedness, paleness, and a feeling
that I may faint” and that, as a result he “would never
even consider trying to become an immunizing pharmacist.”
Stevens also stated that he believed his condition was a
covered disability under the ADA, and requested that Rite
Aid provide him with a reasonable accommodation.
In May, William Farley, a Rite Aid Human Resources manager,
faxed

Stevens

a

list

of

questions

for

his

doctor

to

answer

regarding Stevens’ needle phobia, including how the phobia would
manifest itself if Stevens were to administer immunizations by
injection and whether there were any accommodations that would
enable

Stevens

to

perform

injections.

Dr.

Warfel’s

response

stated that if Stevens were to administer an injection, “[h]e
would become diaphoretic, hypotensive and probably faint. Vagal

5

Case 15-277, Document 150, 03/21/2017, 1993280, Page6 of 16

response.” 2 Dr. Warfel further advised that Stevens could not
safely administer an injection, since the likelihood that he
would faint would be “unsafe for the patient and Mr. Stevens.”
In August, Rite Aid officials told Stevens that the ADA
did not apply to trypanophobia, that Rite Aid was not required
to accommodate Stevens, and that Stevens would lose his job
unless he successfully completed immunization training. Stevens
later told Spink that he would not be able to complete the
training.

On

August

23,

a

Rite

Aid

official

gave

Stevens

a

termination letter, informing him that he was being terminated
for refusing to perform customer immunizations, which were an
essential function of his job.
At trial, Dr. Warfel testified that Stevens suffers from
trypanophobia and that, when faced with needles, his heart rate
increases and he becomes lightheaded, dizzy, and anxious. Frank
Dattilio, a Board Certified Clinical and Forensic Psychologist,
testified that Stevens’ condition causes his sympathetic nervous
system

to

react

heightened

blood

when

faced

pressure,

with
syncope

2

a

needle,

resulting

(fainting),

in

heightened

At
trial,
Dr.
Warfel
and
Stevens
explained
that
“diaphoretic” refers to sweating, “hypotensive” refers to a drop
in blood pressure that can cause lightheadedness or fainting,
and “vagal response” refers to fainting.

6

Case 15-277, Document 150, 03/21/2017, 1993280, Page7 of 16

feelings of anxiety, and loss of concentration that can linger
after exposure to needles.
Richard

Mohall,

Rite

Aid’s

Senior

Director

of

Clinical

Service, testified that Rite Aid wanted its customers to have
“the ability to come into Rite Aid any time the pharmacy was
open, any day[,] any time[,] and receive an immunization.” Traci
Burch,

Rite

Aid’s

Vice-President

of

Labor

Relations

and

Employment Counsel, testified that Rite Aid had decided that
“immunizing

was

going

to

be

a

requirement

for

all

of

our

pharmacists across the country, so anyone who couldn't perform
that

essential

job

function

wouldn't

be

able

to

be

a

pharmacist.”
Following trial, the jury awarded Stevens back-pay damages
of $485,633.00, front-pay damages of $1,227,188.00 to cover a
period of 4.75 years, and non-pecuniary damages of $900,000,
later reduced to $125,000 when Stevens agreed to a remittitur.
Judgment was entered on January 27, 2015.

On September 23, 2015, the District Court entered an
order denying Rite Aid’s post-trial motion for judgment as
a

matter

of

law

on

Stevens’

wrongful

termination

and

retaliation claims, ordering a remittitur, which Stevens

7

Case 15-277, Document 150, 03/21/2017, 1993280, Page8 of 16

accepted,

and

dismissing

Stevens’

failure-to-accommodate

claim.3
Rite

Aid

appeals

from

the

judgment

4

and

the

post-

judgment order, and Stevens cross-appeals from the postjudgment order.
Discussion
We review de novo a district court’s grant or denial of
judgment as a matter of law under Rule 50. See Kinneary v.
City

of

New

York,

601

F.3d

151,

155

(2d

Cir.

2010)

(denial); Norville v. Staten Island University Hospital,
196 F.3d 89, 94 (2d Cir. 1999) (grant). In doing so, we
apply the same well established standard as the district
court: “Judgment as a matter of law may not properly be

3

Stevens’ motion also concerned calculation of interest, a
matter rendered moot by our disposition of this appeal.
4

Rite Aid’s initial notice of appeal in No. 15-277 states
that it is appealing from the District Court’s December 30,
2014, order denying its motion to dismiss Stevens’ complaint.
That appeal is improper because it purports to appeal from an
unappealable pretrial order and unnecessary because Rite Aid’s
notice of appeal in No. 15-279 states that it is appealing from
the District Court’s September 23, 2015, judgment, and that
appeal brings up for review all prior orders of the District
Court that produced the judgment, see Songbyrd, Inc. v. Estate
of Grossman, 206 F.3d 172, 178 (2d Cir. 2000). Rite Aid’s
amended notice of appeal in 15-277 states that it is appealing
from the District Court’s September 23, 2015, post-judgment
order.

8

Case 15-277, Document 150, 03/21/2017, 1993280, Page9 of 16

granted under Rule 50 unless the evidence, viewed in the
light most favorable to the opposing party, is insufficient
to

permit

a

reasonable

juror

to

find

in

h[is]

favor.”

Galdieri-Ambrosini v. National Realty & Development Corp.,
136 F.3d 276, 289 (2d Cir. 1998).
The ADA prohibits discrimination in employment against “a
qualified individual on the basis of disability.” 42 U.S.C. §
12112(a). A “qualified individual” is defined as one who, “with
or without reasonable accommodation, can perform the essential
functions of the employment position that such individual holds
or desires.” 42 U.S.C. § 12111(8). In other words, employers may
not discriminate against people with disabilities that do not
prevent job performance, but when a disability renders a person
unable

to

perform

the

essential

functions

of

the

job,

that

disability renders him or her unqualified. Accordingly, one of
the elements of a claim under the ADA is that an employee was
“qualified to perform the essential functions of his job, with
or without reasonable accommodation.” Sista v. CDC Ixis N. Am.,
Inc., 445 F.3d 161, 169 (2d Cir. 2006) (citation and internal
quotation marks omitted).
Essential function. In evaluating whether a particular job
function is “essential,” this Court considers “the employer’s
judgment, written job descriptions, the amount of time spent on

9

Case 15-277, Document 150, 03/21/2017, 1993280, Page10 of 16

the job performing the function, the mention of the function in
a collective bargaining agreement, the work experience of past
employees in the position, and the work experience of current
employees in similar positions.” McMillan v. City of New York,
711 F.3d 120, 126 (2d Cir. 2013) (citing Stone v. City of Mount
Vernon, 118 F.3d 92, 97 (2d Cir. 1997)); see also 29 C.F.R. §
1630.2(n)(3).

Courts

“must

give

considerable

deference

to

an

employer’s judgment regarding what functions are essential for
service in a particular position,”

Shannon v. New York City

Transit Authority, 332 F.3d 95, 100 (2d Cir. 2003) (citation and
internal quotation marks omitted), but “no one listed factor
will be dispositive.” Stone, 118 F.3d at 97. Courts must conduct
“a fact-specific inquiry into both the employer’s description of
a

job

and

how

the

job

is

actually

performed

in

practice.”

McMillan, 711 F.3d at 126.

In this case, the evidence, required to be viewed in
the light most favorable to Stevens, compels a finding that
immunization injections were an essential job requirement
for

Rite

Aid

termination.

pharmacists

Rite

Aid

at

the

personnel

time

of

Stevens’

testified,

without

contradiction, that the company made a business decision to
start

requiring

pharmacists

to
10

perform

immunizations

in

Case 15-277, Document 150, 03/21/2017, 1993280, Page11 of 16

2011. The evidence established that the company carried out
this policy by revising its job description for pharmacists
to

require

immunization

necessary

depending

located,

and

“essential

on

certification
the

including

duties
Rite

where

immunizations

and
Aid’s

pharmacists.

state

and

licensure,

the
in

pharmacy

the

list

responsibilities”

for

in-house

testified

counsel

as
is
of

Rite

Aid
that

Rite Aid terminated another pharmacist with needle phobia
because,

like

Stevens,

he

failed

to

undergo

Rite

Aid’s

immunization training program, further demonstrating that
the

company

deemed

administering

immunizations

to

be

an

essential function of its pharmacists.
None of Stevens’ arguments undermines the conclusion that
immunization injections were an essential function of his job.
He points out that Rite Aid’s revised job description did not
specifically state that pharmacists were required to administer
immunizations

by

injection,

but

there

was

no

evidence

that

immunizations were administered by alternative means. Although
Rite

Aid

pharmacists

spent

relatively

little

time

performing

customer immunizations when the new policy was first put in

11

Case 15-277, Document 150, 03/21/2017, 1993280, Page12 of 16

place in 2011, there was no evidence that the policy was not
fully implemented thereafter.5
It

is

Stevens,

understandable

afflicted

as

that

he

was

the

jury

with

an

had

sympathy

unusual

for

phobia.

Nevertheless, 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.
Reasonable accommodation. We next consider whether there
was a reasonable accommodation that would have enabled Stevens
to

perform

the

essential

job

function

of

administering

immunization injections. It is important to bear in mind that
the

issue

is

whether

a

reasonable

accommodation

would

have

enabled him to perform that essential function, not whether, as
some of Stevens’ arguments appear to suggest, he could perform

5

Stevens argues that William Spink, a Rite Aid regional
manager, did not testify that immunizations were an essential
function of the pharmacist’s job. Spink, however, was describing
the duties of a pharmacist in 2010, “about a year before the
immunization program” began. His testimony cannot be construed
as applying to the duties of a pharmacist when Stevens was
terminated in 2011.
Furthermore, Mohall, Rite Aid’s Senior Director of Clinical
Service, testified that the low immunization numbers in 2011 –
when Stevens was terminated – were a product of the policy’s
first year and the fact that the company was “just starting to
make
the
public
aware
that
[it]
w[as]
available
[for
immunizations].” He also testified that the immunization numbers
“have grown tremendously and substantially” since 2011, in the
realm of 100 to 200 percent each year.

12

Case 15-277, Document 150, 03/21/2017, 1993280, Page13 of 16

his other duties as a pharmacist. “A reasonable accommodation
can never involve the elimination of an essential function of a
job.” Shannon, 332 F.3d at 100.
A reasonable accommodation may include “job restructuring,
part-time or modified work schedules, reassignment to a vacant
position, acquisition or modification of equipment or devices,
appropriate adjustment or modification of examinations, training
materials or policies, the provision of qualified readers or
interpreters, and other similar accommodations for individuals
with disabilities.” 42 U.S.C. § 12111(9).
Granting Rite Aid’s post-trial motion to dismiss Stevens’
failure-to-accommodate
concluded

that

Stevens

claim,

the

“failed

to

District
prove

Court

that

a

correctly
reasonable

accommodation existed at the time he was terminated, or that he
would have accepted an identified accommodation if offered.” At
trial, Stevens claimed there were four accommodations that Rite
Aid could have offered him. None validly supported his claim.
First, Stevens suggested that Rite Aid could have offered
him desensitization therapy, but he points to no authority in
support of the theory that employers are obligated to offer
employees medical treatment as a reasonable accommodation under
the

ADA.

Indeed,

that

theory

has

been

rejected

by

district

courts in this Circuit. See, e.g., Emerllahu v. Pactiv, LLC, No.

13

Case 15-277, Document 150, 03/21/2017, 1993280, Page14 of 16

11-CV-6197(MAT), 2013 WL 5876998, at *4 n.2 (W.D.N.Y. Oct. 30,
2013); Desmond v. Yale-New Haven Hospital, Inc., 738 F. Supp. 2d
331, 351 (D. Conn. 2010). Furthermore, Stevens failed to show
that he would have undergone desensitization therapy had it been
made available to him.
Stevens also suggested that he could have been transferred
to a pharmacy technician position. 6 However, Rite Aid’s VicePresident of Labor Relations and Employment testified without
contradiction that Rite Aid offered Stevens another position,
such as a pharmacy technician position, that would not require
administering

immunizations,

and

Stevens

offered

no

evidence

that he requested, considered, or was open to a position as a
pharmacy technician.
Stevens’ suggestions that Rite Aid could have either hired
a nurse to give immunization injections for him or assigned him
to

a

dual-pharmacist

location

do

not

propose

true

accommodations. Those steps would be exemptions that would have
involved

other

employees

performing

Stevens’

essential

immunization duties. Rite Aid was not required to grant Stevens
these

exemptions.

See

Shannon,

6

332

F.3d

at

100

(reasonable

According to testimony at trial, a pharmacy technician is a
type of assistant to a licensed pharmacist. Pharmacy technicians
earn substantially less money than licensed pharmacists and
cannot administer immunizations.

14

Case 15-277, Document 150, 03/21/2017, 1993280, Page15 of 16

accommodation

does

not

require

elimination

of

an

essential

function). Moreover, as the District Court noted, Stevens failed
to

show

that

a

vacant

position

at

a

dual-pharmacist

store

existed at the time of his termination.
Where the employee’s disability is known to the employer,
“[t]he ADA envisions an ‘interactive process’ by which employers
and

employees

work

together

to

assess

whether

an

employee’s

disability can be reasonably accommodated.” Jackan v. N.Y. State
Dep’t

of

Labor,

205

F.3d

562,

566

(2d

Cir.

2000)

(citation

omitted). “Nevertheless, an employee may not recover based on
his employer’s failure to engage in an interactive process if he
cannot show that a reasonable accommodation existed at the time
of his dismissal.” McElwee v. County of Orange, 700 F.3d 635,
642 (2d Cir. 2012) (citation omitted). Because Stevens failed to
present any evidence suggesting the existence of a reasonable
accommodation at the time of his termination, he cannot recover
based on Rite Aid’s failure to engage in an interactive process,
even if such a failure occurred.
Conclusion
Because performing immunization injections was an essential
job

requirement

and

Stevens

presented

no

evidence

of

a

reasonable accommodation that would have allowed him to perform
immunizations

at

the

time

of

his

15

dismissal,

no

juror

could

Case 15-277, Document 150, 03/21/2017, 1993280, Page16 of 16

reasonably conclude that Stevens was “qualified to perform the
essential

functions

of

his

job,

with

or

without

reasonable

accommodation.”
On the appeal, we reverse the District Court’s post-trial
denial of Rite Aid’s motion for judgment as a matter of law on
Stevens’

federal

and

state

law

wrongful

termination

and

retaliation claims; 7 on the cross-appeal, we affirm the District
Court’s dismissal of Stevens’ failure-to-accommodate claim. We
remand for entry of a revised judgment in favor of Rite Aid.

7

Stevens’ retaliation claim necessarily fails because
Stevens’ inability to perform an essential function of his job
was a legitimate, non-retaliatory reason for his discharge.
Our reversal of the District Court’s denial of Rite Aid’s
post-trial motion for judgment as a matter of law renders moot
Rite Aid’s appeal from the judgment.

16