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Commentary

Was a Pharmacy Guilty of Firing Employee in Violation of ADA?

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June 03, 2019

This month we look at a case where a pharmacy tech, fired by his employer, sued the employer alleging that his termination was based on discrimination because he suffered from Attention Deficit Hyperactivity Disorder (ADHD).

Just the Facts

Mr. R started as a part-time pharmacy technician in 2010. In 2013, he began working full time as a pharmacy tech. During his employment, he was regularly late for work, and was progressively disciplined. The pharmacy policy provided that if an employee is late, he/she is penalized ½ a point towards a progressive discipline assessment.

Under the policy, an employee who accumulates 4 points within a 90-day period will receive a written warning and be on probation for 90 days. If the employee accumulates another 4 points during the 90-day probation, the employee is suspended for one day, and another 90-day probation begins. If the employee again accumulates another 4 points, a 3-day suspension occurs, along with another probationary period. If, during that third probation an employee accumulates another 4 points, he/she is immediately terminated.

Between January 2012 and March 2015, Mr. R received two written warnings, four 1-day suspensions, and four 3-day suspensions due to his tardiness in getting to work. After being late eight more times between April and June of 2015, Mr. R was terminated. However, after being fired, Mr. R informed the pharmacy that he suffered from ADHD and that was the cause of his being late. After being notified of this, the pharmacy reinstated Mr. R, and offered him extra assistance. Mr. R asked for a set schedule, with the same days/hours of work each week, and the pharmacy accommodated this.

In each of its written reports to Mr. R about his tardiness, the pharmacy mentioned its employee assistance program and suggested that if he were experiencing any personal issues that may be affecting job performance, he should consider contacting the program. A phone number and web address were included, and in at least eleven of the reports, Mr. R’s supervisor circled this information in an attempt to help him.

Despite all of this, however, Mr. R continued to be late for work. Between his reinstatement in July 2015, and August 2017, he was late another 41 times, and was given two 1-day, and three 3-day suspensions until he was finally terminated in August 2017. The cause for his termination was failure to be on time to work. Mr. R sued the pharmacy for disability discrimination, failure to accommodate a disabled employee, hostile work environment, and retaliation. The pharmacy made a motion for summary judgment, asking that the case be dismissed.

The Court Decides

Summary judgment allows a judge to dismiss a case if the party who requests it shows that there is no genuine issue of material fact and that they are entitled to judgement as a matter of law. A “genuine issue of material fact” exists if a reasonable jury could return a verdict for the other party. In other words, to succeed with a summary judgment motion, the moving party must show that no jury could find in favor of the opposition.

According to the Americans with Disabilities Act, for someone to sustain a disability discrimination claim, that person must have suffered an adverse employment action because of the disability. In this case, said the court in its decision, Mr. R was fired not because of the disability but because he was late at least 122 times.

The court similarly rejected Mr. R’s claim that the pharmacy failed to accommodate his disability. The court noted that the pharmacy reinstated him and granted his request for a set schedule after being informed about his ADHD.

Mr. R’s claims of a hostile work environment fell far short of the bar as well. The court noted that conduct that can form the basis for a hostile work environment claim must be “sufficiently severe or pervasive” as to alter the conditions of employment and to create an abusive working environment. Nothing in Mr. R’s claims showed that.

The court also rejected Mr. R’s claim of retaliation, noting, again, that the pharmacy had a documented legitimate non-discriminatory reason for firing Mr. R—his inability to come to work on time.

The court concluded that “even when believing Mr. R’s evidence and drawing all justifiable inferences in his favor, no reasonable jury could find in his favor on any of his claims.” The case was accordingly dismissed against the pharmacy.

Ann W. Latner, JD, is a freelance writer and attorney based in New York. She was formerly Director of Periodicals at the American Pharmacists Association.

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