2d Circuit Rules Against Needle-Fearing Pharmacist on Disability Discrimination Claims

In Stevens v. Rite Aid Corp., No. 15-277(L), 2017 WL 1055566 (2d Cir. Mar. 21, 2017), the Second Circuit reversed a lower court decision in favor of the plaintiff on his wrongful termination and retaliation claims, and affirmed its dismissal of plaintiff’s failure-to-accommodate claim, under the Americans with Disabilities Act (ADA) and state law.

Plaintiff, a pharmacist, suffers from trypanophobia (fear of needles). At some point, Rite Aid began requiring its pharmacists to hold a valid immuization certificate and included a reference to immunizations in the list of “essential duties and responsibilities” for pharmacists. Rite Aid eventually terminated plaintiff for refusing to perform customer immunizations.

A jury found in plaintiff’s favor; in a Sept. 23, 2015 order the district court, inter alia, denied defendant’s motion for a judgment as a matter of law on plaintiff’s wrongful termination and retaliation claims. The Second Circuit reversed.

The decision turned on the legal term “essential function” in the context of the ADA.

The court summarized the law:

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.” [].

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 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.” [] Courts “must give considerable deference to an employer’s judgment regarding what functions are essential for service in a particular position,[] but “no one listed factor will be dispositive.” [] 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.” (Emphasis added.)

Applying the law, the court held that “the evidence … 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 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.

As to plaintiff’s failure-to-accommodate claim, the Second Circuit held that 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.”

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