Is “grabbing” a $1.37 bag of potato chips from the employer’s shelf in the midst of a hypoglycemic attack grounds for termimation?  Does it violate the ADA?

An interesting lawsuit from California in this matter that was filed by the EEOC in 2011 has just been settled, according to the EEOC.  As the Court summarized the facts in denying summary judgment to the employer as follows:

“In the midst of a hypoglycemic attack, [the] employee [who suffered from Type II diabetes] grabbed a $1.37 bag of potato chips from the store shelf to stabilize her condition. [She] was fired her for violating [the employer’s] anti-grazing policy.” 8809481_s

The Court’s framing of the issues: “Are [there] material questions of fact for the jury on whether [the employer] is entitled to enforce its uniformly-applied policy against an employee whose alleged misconduct was caused by her disability.”   Put another way, “ whether it was a business necessity to treat [plaintiff] the same as other employees who had been fired under the anti-grazing policy when [she] claims taking the chips was necessitated by her medical condition.”

The background:  The employer knew that plaintiff suffered from diabetes, and as the Court noted “allowed [her] to possess candy in case of low blood sugar, keep her insulin in the break room refrigerator, and take additional breaks to test her blood sugar or eat because of her diabetes.  In that 13 year time period, there was only one time when [she] asked to take an additional break to eat food because of low blood sugar.  In that same time period, [she] never asked [the employer] to be permitted to consumer merchandise without paying for it first.”

The event at issue, according to the Court:  While working returning items to the store shelves, the employee “noticed she was shaking and sweating from low blood sugar.  She did not have any candy with her and was in the magazine isle, so she opened a $1.39 bag of potato chips that was in the cart and ate some of them.  She did not notify or request assistance from a manager before she opened and ate the chips.   After 10 minutes, when she started feeling better, [she] claims she went to pay for the chips at the cosmetic counter (where she had been instructed to pay for store items) but no one was there.   [She] put the potato chips under the counter at her cash register and returned to restocking items.”

The company’s policy:  The company suffers enormous yearly losses from employee theft, and so has a longstanding and consistently applied policy referred to as “anti-grazing.”  That is, an employee cannot eat any food from the shelves – no matter the value — without first paying for it, or suffer termination – no ifs ands or buts.

The holding:   “Under the Ninth Circuit case law, misconduct resulting from a disability has to be considered as part of [plaintiff’s] disability and creates a question of fact as to whether [her] disability was causally related to her termination.  In other words, whether or not [her] disability was, in fact, a cause of her misconduct is a question of fact for the jury.   Similarly, whether [the employer] should have been required to “accommodate” her stealing as a “reasonable” accommodation is for the jury to determine.”

The settlement:  The employer must pay plaintiff $180,000 and implement substantial changes to its antidiscrimination policy and training procedures.

The takeaway:   Disability law is complex and a potential minefield for employers.  Legal counsel is a must.   The results would likely have been different in different judicial circuits.