June 2014

By: Walter J. Liszka, Esq.

Since I was a child back in the early 1950s, I was taught many things by my parents, including “treat others as you want to be treated” and “do not steal or take other people’s property.” Obviously, the Federal Court System and, specifically, U.S. District Court Judge William H. Orrick, have either never been taught these rules or they have conveniently been forgotten!

Judge Orrick, on Friday, April 11, 2014, refused to throw out an Equal Employment Opportunity Commission (EEOC) lawsuit against the Walgreen Company saying that the Walgreen Company had violated the Americans with Disabilities Act (ADA) when it fired a diabetic employee for eating an unpurchased bag of potato chips to stabilize her blood sugar. Judge Orrick’s rejection of Walgreen’s Motion for Summary Judgment allows the EEOC to continue to pursue its suit over the firing of Josephina Hernandez, who claims she opened and ate a $1.39 bag of chips to starve off a hypoglycemic attack. This taking of an unpaid-for $1.39 bag of chips is in clear violation of the anti-grazing policy of the Walgreen Company which estimates that it loses approximately $350 million in employee theft on a yearly basis. It should be noted that Hernandez claims that “there was no cashier available to take her payment for the chips.” In the opinion of the writer, based on his personal observations and employment by the Walgreen Company for seventeen (17) years, if anyone believes that story, they would believe anything and everything the EEOC and Federal Government say!!

Does this now mean that employers cannot enforce theft policies against employees? Does this now mean that a pharmacist for the Walgreen Company or any other organization can “help himself or herself” to some prescription medication without a prescription? Does this now mean that taking “medical marijuana” is not subject to termination for reporting to work under the influence of a drug? Does this now mean that an employee who alleges that they are suffering from some disability can “help themselves to some cash” from the petty cash drawer to pay “in the future” for needed medication?

I am sure that my parents would “roll over in their graves” if they discovered that I was not following their teachings. Clearly, Judge Orrick and the EEOC would not be subject to concern or consternation because they obviously can excuse stealing. Time will tell how much “breaking of the rules” the EEOC or other government agencies will allow. Not surprising under our current administration!

Questions? Contact Founder and Senior Shareholder Richard H. Wessels of Wessels Sherman’s St. Charles office at (630) 377-1554 or by email at rwessels@wesselssherman.com.