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Equal Employment Opportunity Commision v. Walgreen Co.

United States District Court, N.D. California

April 11, 2014

WALGREEN CO., Defendant

Re: Dkt. No. 66.

For Equal Employment Opportunity Commision, Plaintiff: Cindy O'Hara, David F. Offen-Brown, Jonathan T. Peck, Peter F. Laura, William Robert Tamayo, U.S. Equal Employment Opportunity Commission, San Francisco, CA.

For Walgreen Co., Defendant: Chelcey Emiko Lieber, Shauna Nicole Correia, Weintraub Tobin Chediak Coleman Grodin, Law Corporation, Sacramento, CA; Scott M. Plamondon, Weintraub Genshlea Chediak, Sacramento, CA.

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WILLIAM H. ORRICK, United States District Judge.

In the midst of a hypoglycemic attack, Walgreens's employee Josephina Hernandez grabbed a $1.37 bag of potato chips from the store shelf to stabilize her condition. Walgreens fired her for violating its anti-grazing policy. I must decide if there are material questions of fact for the jury on whether Walgreens is entitled to enforce its uniformly-applied policy against an employee whose alleged misconduct was caused by her disability. There are numerous material issues in dispute and I DENY Walgreens's motion for summary judgment.


Hernandez worked for Walgreens for 18 years.[1] In 1995, about five years after Hernandez started working for Walgreens, Hernandez was diagnosed with Type II diabetes. Walgreens knew that Hernandez had diabetes. In the 13 years that Hernandez worked for Walgreens after being diagnosed with diabetes, Walgreens allowed Hernandez 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 Hernandez asked to take an additional break to eat food because of low blood sugar. In that same time period, Hernandez never asked Walgreens to be permitted to consumer merchandise without paying for it first.

On September 17, 2008, Hernandez was returning items in a shopping cart to shelves. She noticed she was shaking and sweating from low blood sugar.[2] 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

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or request assistance from a manager before she opened and ate the chips.

After 10 minutes, when she started feeling better, Hernandez 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. Hernandez put the potato chips under the counter at her cash register and returned to restocking items. The Assistant Store Manager Holly Potter found the chips and asked whose they were. Hernandez said the chips were hers.[3] Potter reported Hernandez to the Store Manager, Robert Balestieri, for taking the chips.[4] For the next two weeks Hernandez was on vacation. When she returned, she met with Walgreens Loss Control Supervisor Marcellus Clark. When asked to write a statement regarding the incident, she wrote: " My sugar low, not have time." [5] Either Clark or Balestieri told Hernandez she was suspended, and then on October 8, 2008, Balestieri told Hernandez she was terminated. Balestieri testified he was " absolutely certain" about terminating Hernandez because she took the chips in violation of Walgreens's policy, and that he believed there was no " gray area" or " discretion" under Walgreens's policy.

Walgreens incurs significant losses from employee theft, estimated at exceeding $350 million per year. In order to combat employee theft, Walgreens has a strict policy against employee theft in the form of " grazing" -- eating food merchandise without paying for it first -- that is applied to all employees. Hernandez knew that Walgreens had an anti-grazing policy and that employees would be terminated for violating that policy. Hernandez was terminated for violating the anti-grazing policy. While Hernandez was working at Walgreens, Balestieri and other managers in his district " consistently" terminated any employee for theft regardless of the employee's rank, employment history, or the value of the items taken.

Hernandez filed an EEOC complaint. The EEOC investigated and brought suit against Walgreens, arguing that Hernandez was terminated in violation of the Americans with Disabilities Act (ADA) and Title VII. Walgreens moves for summary judgment, arguing that Walgreens's termination of Hernandez for theft was not in violation of the law. The EEOC counters

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that Walgreens failed to accommodate Hernandez's known disability which caused the complained-of conduct. I heard oral argument on April 9, 2014.



Summary judgment is proper " if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party, however, has no burden to disprove matters on which the non-moving party will have the burden of proof at trial. The moving party need only demonstrate to the court " that there is an absence of evidence to support the nonmoving party's case." Id. at 325.

Once the moving party has met its burden, the burden shifts to the non-moving party to " designate specific facts showing a genuine issue for trial." Id. at 324 (quotation marks omitted). To carry this burden, the non-moving party must " do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). " The mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Rather, the nonmoving party must " go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324 (internal quotations omitted). " Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment." T .W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).

In deciding a summary judgment motion, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. at 255. " Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment." Id. However, conclusory or speculative testimony in affidavits is insufficient to raise genuine issues of fact and defeat summary judgment. Thornhill Publ'g Co. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979).


The ADA provides that " no covered entity shall discriminate against a qualified individual with a disability because of the disability . . . ." 42 U.S.C. § 12112(a). Title I of the ADA requires " reasonable accommodation" of employees' disabilities by their employers. Under the ADA, the term " discriminate" is defined as including " not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity." 42 U.S.C. § 12112(b)(5)(A). To prevail on a claim of unlawful discharge under the ADA, the plaintiff must establish that she is a qualified individual with a disability and that the employer terminated

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her because of his disability. Humphrey v. Mem'l Hosps. Ass'n, 239 F.3d 1128, 1133 (9th Cir. 2001) (citing Cooper v. Neiman Marcus ...

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