Walgreens sued for firing diabetic employee who ate chips to stave off low

Spotted this in my Facebook news feed:


Josefina Hernandez of San Francisco had a clean record in nearly 18 years of service to the drugstore giant. Her supervisors knew she had diabetes, a disease that calls for careful monitoring and regulation of blood sugar levels.

“I almost always carry a piece of candy in my pocket for situations when I feel my blood sugar getting low, but I didn’t have anything on me this time,” Hernandez said in a statement on the EEOC website. “I knew I needed to do something quickly, so I reached for a bag of chips and paid for them as soon as I could. I worked for Walgreens with no problems almost two decades, so I am very upset to lose my job over this.”

The lawsuit claims Walgreens violated the Americans With Disabilities Act, which requires employers to make reasonable accommodations to employees with disabilities.

“Ms. Hernandez took action to raise her blood sugar in what could have turned into an emergency situation,” EEOC regional attorney William R. Tamayo said in a statement. “Accommodating disability does not have to be expensive, but it may require an employer to be flexible and open-minded. One wonders whether a long-term, experienced employee is worth less than a bag of chips to Walgreens.”

I find it incredible that a pharmacy should be so small-minded. And yet... at the same time, I'm sadly not surprised.

Tags: Walgreens, diabetes, lawsuit

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Just as the prosecutor could find a Doc to discredit her choice of chips for a low the Defense can just as easily find one that says "It is not protocol to eat chips but they WILL raise blood glucose and I counsel my patients to eat whatever they can find if and when needed to prevent a life threatining low especially since it is well documented some PWD are not thinking rationally when low."

I do not know a whole lot about law but the not thinking rationally when low part seems to me to be just as credible as someone saying they weren't responbsible for killing people because they are not in their right state of mind due to extreme pressure (e.g. insanity).Does this type of argument/Defense jive with what you know about court proceedings?
The defendant is Walgreens though, they have to be proven guilty of something. The quesition isn't the propriety of her having eaten the chips, it's if they are within their rights as an employer to have required her, as they require all of their other employees, to get a different employee to ring up their purchse. I am totally familiar with the animalistic urge to eat that comes with many hypoglycemic episodes. I am not 100% sure that any of the arguments here, which I agree with in many cases, prove that Walgreens has the obligation to keep an employee on who violated their procedural rule against ringing up her own purchase or not having bothered to ring it up. Perhaps to look at it differently, and taking it as "not a big deal" but if Walgreens had a different policy, that say allowed you to eat whatever you wanted but you have to pay 10 times the cost if you ring it up yourself, do you think she'd have paid $13 for the bag of chips or would fiscal prudence have overcome her animalistic urges to eat potato chips (again, potato chips are totally my go to "food crack" so i am very sympathetic to the desire to eat them...) and called the manager or a coworker to ring up her purchase?

Walgreens is the defendant here. The insanity defense doesn't go for plaintiffs, I don't think , or we could all go out, run down into the 40s and head for the ice cream aisle, Five Guys or Whole Foods or anywhere else and demand free snacks or just sit on the floor and eat them. Walgreens policy seems a bit pedantic but, in their marketing strategy, they sell lots of little goodies that you can pick up when you go get your drugs. It would make sense that they'd have to be pretty strict with their inventory control. They can defend themselves by trying to make the plaintiff's story look less than credible. I totally believe the plaintiff but I don't believe that Walgreens owes her anything other than whatever wages she earned up until she was let go. Maybe compensation for the vacation time, if it were a paid vacation, as the origninal story mentions that she was set to go on vacation for two weeks.
Sorry for the confusion of plaintiff vs defendant.

Could not the argument be made that since she could have potentially "not been in a rational and reasonable mental state" that the particular policy of Walgreen's would be null and void as when you sign the document (training) for their policy you were under the influence of a sound and reasonable mind? Is this not similar to "insanity"- not in a rational and reasonable state of mind?

I guess my question is if the plaintiff makes the argument above, how much is this will the court find to be the employees fault if it is well documented that people with low blood glucose "wake up" in the grocery store with a bunch of food around them and don't remember the event (obviously you can't know the answer for sure but from what you DO know take a guess at the answer)? Is there precendent to use such an angle for the plaintiff? How much "proof" would the court need to buy such and angle?

I am not a person who steals but if/when a sever hypo happens at work I certainly would hate to find myself without a job, basically in the situation this lady is in today without any sort way to clear my name, as it were.
SHe doesn't have to prove her mental state. She doesn't even have to prove that she was low, although it would certainly help her case if she could (although I'm guessing that she took the chips more on the sensation of being low rather than on testing and finding herself low). All she has to do is show that Walgreens either dismissed her for reasons directly related to her diabetes (that is, her dismissal was an act of discrimination and was done BECAUSE she's diabetic, and for no other reason) OR she has to show that they violated the "reasonable accommodation" clause of the ADA by not providing her with any alternative for managing her blood sugar but the one she took (which was to eat chips, paid for or not paid for, on the job). If they were not allowing her to take a break to test and eat when she felt low, her case is a slam dunk for the accommodation part of the law unless they can show that she had a pattern of doing this sort of thing, AND unless they can show that she was asked NOT to do this sort of thing. If she had been, for example, eating chips on the job for 18 years and no one ever said anything to her, that would probably be viewed in her favor -- she would have had good reason to believe that they were accommodating her diabetes by letting her behave in that manner.

It's hard to know until all the facts are presented. Which I guess is why we have trials, isn't it?
I think the issues involves the Americans with Disabilities Act. This law makes it illegal for employers to discriminate by "not making reasonable accomodations to the known physical or mental limitations of disabled employees". I have heard reasonable accomodations being short breaks for testing, injecting, snacking. Providing a sharps container or provding an area where the employee can keep supplies and use them.

The question I think the courts will have to decide is if it is a reasonable accomodation that Josefina ate the potato chips and then later paid for them. If this is a reasonable accomodation, then her employer broke the law when they reprimanded her.
If she asked them for 5-10-15 minutes to get her wits about her/ treat her medical condition, or even to leave and go home (although diabetically speaking, that would *not* necessarily be a good idea...) and they told her "no, you are on duty and have to stay there", then I think she'd have a very good case under the ADA.

I'm not sure about this one because the dialogue is, in fact, one sided? Then again, Walgreen's story may not be very sympathetic either? I'm thinkiing the manager who "caught" her and then turned her in to the loss control manager who went after her is probably going to end up being a guy who is sitting in back looking for thieves on the video monitors. To me, that automatically puts a big sign on him that says "freaking wierdo" which I would presume at least some of the jurors would think too?
I find it hard to believe that she could be in the store 18 years without everyone there, including the guys in the back with the video monitors, knowing that she had diabetes and occasionally had to take blood sugar breaks. Even if you don't noise it about, it's all but impossible in such a small venue to not have *somebody* find out you're testing your blood sugar in the bathroom, and once one person knows, they all do. It's also wicked weird for someone working in a pharmacy where a huge contingent of their customers are PWD to knee-jerk fire a long-time employee, even for "stealing", when told "I have diabetes, my blood sugar is low, that's why I did what I did." I would expect a verbal or written reprimand before I would expect a flat out pink-slip.

But then, my expectations may be unrealistic. I'm sort of assuming that the people at this store have a better understanding of the needs of PWD than you'd find at, say, Burger King, simply because serving healthcare needs is Walgreens' purported business. Fact is, it's a chain, and it may very well be that the only people with a remote clue would be the pharmacists, not the folks on the floor. But if that's truly the case... maybe it's time for a little shake up.
I'm fairly newly diagnosed and so far have always had glucose tabs with me when I have gone really low so, so I haven't really been in a situation as Kelly described where I had to ask a stranger for help. I remember one story about my dad who had Type 1 also. He stopped at a grocery store on the way home from work. He started to have an "insulin reaction" and was trying to buy a can of Coke from a machine. He was having trouble figuring out how much it cost (due to the low blood sugar) so he asked a woman to help him get a Coke. She got the store manager, whom he also asked to help him figure out how much a Coke cost. The store manager had someone call an ambulance while my dad kept trying to hand people money to buy him a Coke. An ambulance and firetruck both came to the store, sirens, lights, and all. When the rescue workers came inside my dad told them he needed a Coke. They handed his money to a store manager who finally got him a Coke, then waited with him until his blood sugar returned to normal. This happened more than 35 years before I was diagnosed and my dad kind of laughed it off, but as a young child it made enough of an impression on me that since my own diagnosis a few years ago I almost panic if I realize I have left the house without my glucose tabs and immediately turn back. It makes we wonder if asking for help would always be as effective as I might hope.
That reminds me of a story from years ago when I knew nothing about diabetes. I was working at a Subway sub shop and a regular customer came in with his friend, but the friend went into the rest room. The guy couldn't place his order and was all spaced out. Since he was a regular I didn't think it was drugs. Luckily his friend came out of the rest room and told us he was diabetic. We got him to sit down but he insisted on having DIET coke. We had called 911 but he eventually decided to listen to us and drink the coke.
I wonder if Ms. Hernandez would have been fired if she had reached for a package of glucose tabs instead of chips.
That's really the question, isn't it? Did they fire her because they regarded her as a thief, or did they fire her because they didn't care to accommodate her diabetes any more?
What part of San Francisco is this Walgreens? I will not apply for a job there!




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