Stevens v. Rite Aid Corporation

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)

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CHRISTOPHER STEVENS,
Plaintiff-Appellee-Cross-Appellant,

v.

RITE AID CORPORATION, DBA Rite Aid Pharmacy,
AKA Eckerd Corporation, DBA Rite Aid,
Defendant-Appellant-Cross-Appellee.

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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. McAvoy, District Judge) in a case

brought under the Americans with Disabilities Act and

similar state law. The judgment, entered after a jury
1
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 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; 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.

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
 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 immunization injections to customers. That

action precipitated a suit under the 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 J. McAvoy, District Judge) awarding

Christopher Stevens, the pharmacist, substantial damages

after a jury trial. Rite Aid also appeals and Stevens

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

post-trial order. That order dismissed the plaintiff’s

3
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
1
pharmacists to hold a valid immunization certificate 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 pharmacies for 34 years. He was

responsible for handling medications and counseling

customers regarding their medications. In March 2011,

1
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
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
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 when faced with a needle, resulting in

heightened blood pressure, syncope (fainting), heightened

2
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.

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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
accepted, and dismissing Stevens’ failure-to-accommodate

claim.3
4
Rite Aid appeals from the judgment and the post-

judgment order, and Stevens cross-appeals from the post-

judgment 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.
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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
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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 pharmacists at the time of Stevens’

termination. Rite Aid personnel testified, without

contradiction, that the company made a business decision to

start requiring pharmacists to perform immunizations in

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2011. The evidence established that the company carried out

this policy by revising its job description for pharmacists

to require immunization certification and licensure, as

necessary depending on the state where the pharmacy is

located, and including immunizations in the list of

“essential duties and responsibilities” for Rite Aid

pharmacists. Rite Aid’s in-house counsel testified 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

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place in 2011, there was no evidence that the policy was not

fully implemented thereafter.5

It is understandable that the jury had sympathy for

Stevens, afflicted as he was with an unusual 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.
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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 claim, the District Court correctly

concluded that Stevens “failed to prove that a 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.

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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 Vice-

President 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, 332 F.3d at 100 (reasonable

6
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.
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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 dismissal, no juror could

15
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.
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