Drugstore chain Rite Aid Corp., on the eve of trial, has agreed to pay $250,000 to settle charges brought by the U.S. Equal Employment Opportunity Commission that it wrongfully discriminated against a Maryland employee who has epilepsy.
The settlement was one of four announced by the EEOC on November 7. A JW Marriott franchisee in Las Vegas also settled sexual harassment charges for $155,000, a hotel in California near Yosemite National Park paid $195,000 to resolve allegations of sexual harassment and retaliation, and a home for troubled youth in Michigan agreed to a 10-year consent decree to settle charges that it discriminated against pregnant employees.
The EEOC sued Rite Aid in Baltimore federal court in 2008, alleging that the company violated the Americans with Disabilities Act when it fired Christopher Fultz from his position as a pharmacy order picker at the company Mid-Atlantic Customer Service Center in Perryman, Md.
Fultz initially filed a charge with the EEOC that he had been denied promotions because he has epilepsy. The EEOC issued an administrative finding in his favor, but the company then allegedly retaliated against Fultz, forcing him to undergo a fitness-for-duty examination. According to the EEOC, Rite Aid then fired him based on the findings of the doctor who performed the exam and who had no experience treating people with epilepsy.
Rite Aid in court papers claimed epilepsy is not a “disability” under the ADA, nor did Rite Aid “regard” Fultz as disabled. “Even if ‘disabled,’ Mr. Fultz’s epilepsy posed a direct threat of harm to himself and to others at [the service center], and therefore, he has no claim for discrimination,” wrote James Rothschild of Baltimore’s Anderson, Coe & King in a motion for summary judgment filed March 29, 2010.
Rite Aid said Fultz had a seizure while driving a forklift and narrowly missed hitting another employee before crashing into some pallets. During another seizure, he grabbed a co-worker’s hair and wouldn’t let go even as she was screaming, and in another episode, he pinched a co-workers breast. He had a seizure near the top of the stairs and fell to the ground, and during other seizures he “wandered around in an incoherent state.” Twice he had grand mal seizures at work and was taken to the hospital via ambulance.
Rite Aid argued it did attempt to accommodate Fultz, allowing him to continue working even though he could not perform essential elements of his job – driving a forklift and walking up to the second floor in the building where he worked.
In November 2010, Judge Catherine Blake denied Rite Aid’s request to dismiss the case on summary judgment, ruling it was not clear whether Rite Aid regarded Fultz as disabled when it placed him on administrative leave.
As for the claim that he was a danger to himself or others, she noted that plaintiffs presented evidence that he never hurt himself beyond minor cuts, and that co-workers did not regard him as dangerous.
“Accordingly, the defendant’s motion for summary judgment on the grounds that Mr. Fultz does not qualify as disabled under the ADA will be denied,” she wrote.
She also found there was “a genuine dispute of material fact concerning whether Rite Aid refused to accommodate Mr. Fultz’s epilepsy” and whether the company retaliated against him for complaining to the EEOC. She did however dismiss the claim that Rite-Aid was a hostile work environment.
With trial set for early November, the EEOC and Rite Aid struck a deal. In addition to the $250,000 for Fultz (who as an intervenor was represented by Bruce Fredrickson of Webster Fredrickson Correia and Puth in Washington), Rite Aid agreed to a three-year consent decree that requires it to revise its ADA policies and provide ADA training for managers at the facility.
“The policy revisions and training requirements in this settlement will ensure that now all applicants and employees with disabilities will have the same chance to earn a living as those without disabilities,” said EEOC regional attorney Debra Lawrence in a news release.
Contact Jenna Greene at email@example.com.