The Most Expensive Bag of Chips Ever…and how it relates to discrimination.


Josefina Hernandez, a 57 year old employee of Walgreens, who’d been with the company for more than 18 years suffers from diabetes.  In late 2008, while at work, she began to feel a drop in her blood sugar.  In order to stave off the attack of hypoglycemia that was coming on, she took a bag of chips and ate it.

A security guard for the company saw her and confronted her about eating the chips before she’d paid for them.  Walgreen’s has a policy of not allowing employees to eat food or drink anything until after they’ve paid for it.   This, in spite of the fact that the company knew of Ms. Hernandez’ condition as a Type II diabetic.

Ms. Hernandez, unable to talk and still trying to recover from her drop in blood sugar scribbled a note to the security guard that said “My sugar low. Not have time.”  He didn’t bother to ask for clarification.

The security guard, not understanding the note, reported her violation to management.  She was fired shortly thereafter.  18 years of service, in exchange for a $1.39 bag of chips.

Regular readers of this blog are probably already spotting the issues.

As mentioned, Ms. Hernandez had been an employee of Walgreens for over 18 years, with no record of disciplinary action.  It is clear that the Americans with Disabilities Act (Amendments Act) prohibits an employer from terminating an employee who is otherwise qualified for his or her job because of a disability.  In fact, not only does the ADA require an employer to refrain from terminating an employee with disability, it places a burden on the employer to provide reasonable accommodations to any employee or job applicant, unless doing so would impose an undue hardship for the employer.

Ms. Hernandez explained her situation to agents at the Equal Employment Opportunity Commission in San Francisco who took her case to a settlement.  Carlos Rocha of the EEOC investigated Ms. Hernandez’ claims and attempted to negotiate a settlement through conciliation.  When those efforts met with failure and a company that insisted that her termination had nothing to do with her disability, he presented the case to EEOC Counsel who took it to court (EEOC v. Walgreen Company) in the U.S. District Court for the Northern District of California, including claims for discrimination for firing an otherwise qualified employee because of a disability and for failure to accommodate.

“Not only was this harsh and unfair, but it was illegal, and that’s why the EEOC sued to correct this wrong,” said EEOC San Francisco Regional Attorney William R. Tamayo.  “People may think this case revolves around theft, but the real issue is how a company responded to a valued 18-year employee, whom it knew for 13 years to be diabetic, and who attempted to pay for the chips after she recovered from her hypoglycemic attack.”

The District Court, in the form of Judge William Orrick, agreed with EEOC counsel after hearing arguments on Walgreen’s Motion for Summary Judgment.  While the company maintained that it had not based its decision to fire on her disability, the court stated that ‘Walgreen failed to allege any misconduct that is not related to her disability.”

After losing at the Summary Judgment stage, the company began to engage more faithfully in settlement negotiations with Ms. Hernandez and the EEOC.

The Judge issued a consent decree settling the case wherein Walgreens agreed to pay Ms. Hernandez $180,000 and revise its policies on accommodation of employees with disabilities.  The revisions are to be posted on the company’s intranet site, available to all employees.  In addition, the company must make periodic reports to the EEOC and provide anti-discrimination training to management.  It must also post copies of the consent decree for three years.

EEOC San Francisco District Office Director Michael Baldonado said, “This settlement is a good result, because the injunctive remedies in the decree increase the likelihood that Walgreens employees will not suffer disability discrimination in the future, its employees will be able to request accommodations under the law, and Ms. Hernandez is free to be rehired and cannot be retaliated against.”

While there has been no report of Ms. Hernandez taking her old job back, she did say “I would like to thank the EEOC for filing the case for me, the team at EEOC for their great work, and my family for their support during the case.”

Chris Murray, spokesman and senior attorney for Walgreens, stated, “We are pleased to have reached a resolution that avoids the time and expense of continued litigation for all parties involved.  This resolution is consistent with our past and future commitment as an industry leader for accommodating the special needs of any employee who has an illness or disability.”

If you feel that you may have been discriminated against because of a disability, or if you feel that your employer has failed to make reasonable accommodations for your disability, contact Stephen Danzq & Associates at (877) 789-9707 or use the Contact Form on our website to schedule a free consultation today.  Stephen and one of his senior associates will meet with you to discuss the facts of your case and outline any possible causes of action.  Stephen has more than three decades of experience in defending the rights of California workers and employees around the world against the unlawful acts of their employers.

We look forward to defending your rights.