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EEOC v. Dolgencorp, LLC, No. 17-6278 (6th Cir. Aug. 7, 2018)

The Sixth Circuit affirms a jury award in an ADA case of $27,565 in back pay and $250,000 in compensatory damages, awarded to a dollar-store clerk who was fired for grabbing orange juice from the store fridge twice during diabetic episodes. The panel notes, among other things, that the failure to provide a reasonable accommodation can itself be direct evidence of discrimination.

EEOC v. Dolgencorp, LLC, No. 17-6278 (6th Cir. Aug. 7, 2018): The complainant, Ms. Atkins, "is a type II diabetic who occasionally suffers from low blood sugar. She must respond to these episodes by quickly consuming glucose to avoid the risk of seizing or passing out. When she asked her manager if she could keep orange juice at her register in case of an emergency, the manager refused." When she forced in an emergency to resort to juice from the check-out counter - which she immediately paid for - she was fired for violating the store's "anti-grazing" policy. The EEOC brought suit on her behalf for termination because of disability, and they (plus private counsel) prevailed at trial. (In addition to the jury award, the judge awarded $445,322 in attorney's fees and $1,677 in expenses.)

The Sixth Circuit panel affirms in all respects.

The store's first argument was that the complainant filed her EEOC charge too late, because Tennessee was not a deferral state with respect to claims of reasonable accommodation of disabilities, and so Atkins had only 180 instead of 300 days to get on file. The panel deals with that objection summarily by noting that Atkins complaint was not some unique, federal-only "reasonable accommodation" claim, but a straight disabilities discrimination claim, which the Tennessee civil-rights agency had unquestioned power to investigate. "The relevant question is whether the state agency has the power to entertain the claimant's disability discrimination claim, not whether state law recognizes the same theories of discrimination as federal law."

Second, the store argued that it had no duty to accommodate Atkins because her nurse "testified that Atkins could treat hypoglycemia in other ways" besides juice, including glucose tablets or candies. But the record in this case, the jury could have found, showed that even those measures would have barred under the company's rules. "The store manager categorically denied Atkins' [orange juice] request, failed to explore any alternatives, and never relayed the matter to a superior. That was Dollar General's problem, not Atkins'-or at least a reasonable jury could so conclude." Atkins also testified that the supposed alternatives were not as quick and effective as juice, which was easily administered and measured.

Third, the store argued that "it had a legitimate, nondiscriminatory reason for firing Atkins, namely the company anti-grazing policy," which the EEOC did not rebut. Yet the panel notes that this argument misapprehends the EEOC's legal theory, that "failing to provide a protected employee a reasonable accommodation constitutes direct evidence of discrimination," and thus the EEOC and Atkins were not required to rebut other, possible legitimate reasons for the discharge.

Fourth, the store pointed to a supposed lack of evidence of animus against Atkins or her disability. The panel holds that this is immaterial.

"An employer violates the Act whenever it discharges an employee 'on the basis of disability' (a necessary requirement for liability), not only when it harbors ill will (a sufficient way of establishing liability). 42 U.S.C. § 12112(a). Imagine a company that fired a visually impaired employee to save itself the minimal expense of buying special software for her. Without more, that would constitute termination 'on the basis of disability,' even if all of the evidence showed that cost-savings, not animus towards the blind, motivated the company."

Finally, the panel affirms the fee award, holding that the Magistrate appropriately determined private counsels' lodestar (considering the success and complexity of the case) and did not improperly "double-count" by granting an enhancement.

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