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.


                                            6
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.
                                        8
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
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


                                           10
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




                                           11
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.
                                             12
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.

                                       13
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.
                                      14
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.
                                     16
