needle-injection

Rite Aid Pharmacy was within its right to fire a pharmacist at its store in Utica who refused to give immunization shots to customers because he suffers from a fear of needles, a federal appeals court ruled Tuesday.

The decision by a panel of the U.S. Court of Appeals for the Second Circuit reverses a 2015 decision by Northern District Judge Thomas McAvoy that Rite Aid wrongfully terminated Christopher Stevens because of his condition and that the company retaliated against him.

According to the circuit's decision, in 2011, Rite Aid and other major pharmacy chains began requiring their pharmacists to perform immunizations to satisfy an unmet need in the health care market.

That year, Rite Aid amended its list of duties and responsibilities for pharmacists to add performance of immunizations. Until that point, Stevens had worked in pharmacies throughout upstate New York for 34 years.

Stevens submitted a doctor's note stating that this new duty would cause him to sweat, that his blood pressure may drop and that he might faint. Thus, the doctor said, it would be unsafe for both Stevens and patients to require him to perform immunizations.

In August 2011, Rite Aid told Stevens that the Americans with Disabilities Act does not cover a fear of needles, or trypanophobia, and that it had no duty to accommodate him. After continuing to refuse to complete immunization training, he was fired.

Stevens brought claims against Rite Aid under the Americans with Disabilities Act and the New YorkState Human Rights Law, claiming he was fired for his disability, that the company failed to provide him a reasonable accommodation and that the decision to fire him was retaliatory.

In January 2015, the jury in Stevens v. Rite Aid, 13-cv-783, found for Stevens and awarded him $485,633 in back pay, $1.23 million in lost future wages, which encompasses nearly five years from the date of the verdict and $900,000 for compensatory damages.

In September 2015, McAvoy reduced the compensatory damages award to $125,000.

He found for Rite Aid's argument that it could not have reasonably accommodated him, but denied Rite Aid's post-trial judgment as a matter of law on Stevens' termination and retaliation claims.

On appeal, the Second Circuit affirmed McAvoy's ruling on the failure-to-accommodate claim.

Writing for the panel, Judge Jon Newman said the ADA prevents employers from discriminating against a qualified employee with a disability.

Citing the circuit's 2006 decision in Sista v. CDC Ixis North America , 445 F.3d 161, 169, Newman said employees who are “qualified to perform the essential functions of his job, with or without reasonable accommodation” may bring claims under the ADA, and that Rite Aid established that performing immunizations for customers was an essential function of the job.

“It is understandable that the jury had sympathy for Stevens, afflicted as he was with an unusual phobia,” Newman said. “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.”

Judges Gerard Lynch and Christopher Droney joined on the decision in Stevens v. Rite-Aid Corp., 15-277.

Morgan, Lewis & Bockius partners Allyson Ho and Michelle Seldin Silverman and associate John Sullivan appeared for Rite Aid. Ho forwarded a request for comment to Rite Aid, which declined to comment.

Hancock Estabrook partners Janet Callahan, Daniel Berman and Robert Whitaker appeared for Stevens. Neither attorney responded to requests for comment.

Contact Andrew Denney at [email protected]. On Twitter: @messagetime