Feds Successfully Defend Employee Who Stole Potato Chips

By Susan Jones | July 7, 2014 | 10:27 AM EDT

(AP File Photo)

(CNSNews.com) - A major drugstore chain has agreed to pay $180,000 to a longtime employee who was fired six years ago for eating a $1.39 bag of potato chips without paying for it first.

The Equal Employment Opportunity Commission successfully argued that the woman was fired because of her disability -- Type II diabetes -- and not because she took the chips.

Walgreens argued that Hernandez, an 18-year-employee, knew about Walgreens' "anti-grazing policy" and that employees would be terminated for violating that policy.  It can never be a "reasonable accommodation" to require a company to accommodate employee theft, Walgreens argued.

The former cashier, named Josefina Hernandez, says she ate the potato chips during a hypoglycemic attack to stabilize her blood-sugar level. She was working at a San Francisco Walgreens, restocking shelves, when she opened the bag without first paying for it.

According to court documents, Hernandez claimed she tried to pay for the chips at the cosmetics counter (where she had been instructed to pay for store items) but no one was there. Hernandez put the potato chips under the counter at her cash register and returned to her restocking duties.

The assistant store manager found the chips and reported Hernandez to the store manager, who called in the loss-prevention officer.

According to the EEOC, which filed the lawsuit, the "security officer testified that he did not understand, nor did he seek clarification, when Hernandez wrote, 'My sugar low. Not have time,' in reply to his request for a written explanation of why she took the potato chips without paying.

"Terminating a qualified employee because of a disability violates the Americans with Disabilities Act (ADA)," the EEOC said last week, in announcing a settlement.

"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 security officer told the court he found no record of the Hernandez paying for the chips.)

According to the consent decree settling the EEOC lawsuit, Walgreens agreed to pay Hernandez $180,000 and to post its revised policy regarding accommodation of disabled employees on its employee intranet site. The company also will provide anti-discrimination training, make periodic reports to the EEOC, and post a notice regarding the decree for three years.  

Ms. Hernandez, meanwhile, "is free to be rehired and cannot be retaliated against," the EEOC said.

Chris Murray, a senior attorney for Walgreens, said the company is "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."

According to court documents, Walgreens incurs significant losses from employee theft, estimated at more than $350 million a year. In order to combat employee theft, Walgreens has a strict policy against employee theft in the form of “grazing” -- eating food merchandise without paying for it first -- that is applied to all employees.

In fact, while Hernandez was working at Walgreens, the manager at her store and others in the area "consistently” terminated any employee for theft regardless of the employee’s rank, employment history, or the value of the items taken, court documents said.

Moreover, court documents say  that Hernandez never asked Walgreens to be permitted to consume merchandise without paying for it first.