Argued: October 6, 2016
from the January 27, 2015, judgment and appeal and
cross-appeal from the September 23, 2015, post-trial order of
the District Court for the Northern District of New York
(Thomas J. McAvoy, District Judge) in a case brought under
the Americans with Disabilities Act and similar state law.
The judgment, entered after a jury trial, awarded substantial
damages to the plaintiff on his claims of wrongful
termination, retaliation, and failure to accommodate. The
post-trial order dismissed the plaintiff's
failure-to-accommodate claim, granted a new trial unless
plaintiff agreed to a remittitur (later accepted),
substantially granted plaintiff's claims for interest,
and denied defendant's motion for judgment as a matter of
law on plaintiff's wrongful discharge and retaliation
appeal, we reverse the District Court's post-trial denial
of Rite Aid's motion for judgment as a matter of law on
Stevens' federal and state law wrongful termination and
retaliation claims; on the cross-appeal, we affirm the
District Court's dismissal of Stevens'
failure-to-accommodate claim. We remand for entry of a
revised judgment in favor of Rite Aid.
Allyson N. Ho, Morgan, Lewis & Bockius LLP, Dallas, TX
(John C. Sullivan, Morgan, Lewis & Bockius LLP, Dallas,
TX, Michelle Seldin Silverman, Morgan, Lewis & Bockius,
Princeton, NJ, on the brief), for Appellant-Cross-Appellee
Rite Aid Corporation.
D. Callahan, Hancock Estabrook, LLP, Syracuse, NY (Daniel B.
Berman, Robert C. Whitaker, Robert J. Thorpe, Hancock
Estabrook, LLP, Syracuse, NY, on the brief), for
Appellee-Cross-Appellant Christopher Stevens.
Before: NEWMAN, LYNCH, and DRONEY, Circuit Judges.
NEWMAN, Circuit Judge.
appeal and cross-appeal concern a pharmacist who suffers from
trypanophobia - fear of needles. The pharmacy where he was
employed discharged him because he could not comply with a
company policy that required pharmacists to administer
immunization injections to customers. That action
precipitated a suit under the Americans with Disabilities Act
("ADA"), 42 U.S.C. §§ 12101 et
seq. and similar state law. Rite Aid Corporation
("Rite Aid"), the employer, appeals from the
January 27, 2015, judgment entered by the District Court for
the Northern District of New York (Thomas J. McAvoy, District
Judge) awarding Christopher Stevens, the pharmacist,
substantial damages after a jury trial. Rite Aid also appeals
and Stevens cross-appeals from the District Court's
September 23, 2015, post-trial order. That order dismissed
the plaintiff's failure-to-accommodate claim, granted a
new trial unless plaintiff agreed to a remittitur (later
accepted), substantially granted plaintiff's claims for
interest, and denied defendant's motion for judgment as a
matter of law on plaintiff's wrongful discharge and
2011, Rite Aid, and other large pharmacy chains, started
requiring pharmacists to perform immunizations in order to
fill an unmet need for vaccinations in the healthcare market.
In April 2011, Rite Aid revised its job description to
require pharmacists to hold a valid immunization certificate
included a reference to immunizations in the list of
"essential duties and responsibilities" for
his termination in August 2011, Stevens worked in upstate New
York as a full-time pharmacist for Rite Aid and its
predecessor pharmacies for 34 years. He was responsible for
handling medications and counseling customers regarding their
medications. In March 2011, Stevens received an e-mail from
his district manager, William Spink, informing him that Rite
Aid was going to require all pharmacists to give immunization
injections to customers.
obtained a note from his treating physician, Dr. Mark Warfel,
stating that Stevens is "needle phobic and cannot
administer immunization by injection." Stevens wrote a
letter to Spink explaining that his trypanophobia causes him
to experience "lightheadedness, paleness, and a feeling
that I may faint" and that, as a result he "would
never even consider trying to become an immunizing
pharmacist." Stevens also stated that he believed his
condition was a covered disability under the ADA, and
requested that Rite Aid provide him with a reasonable
William Farley, a Rite Aid Human Resources manager, faxed
Stevens a list of questions for his doctor to answer
regarding Stevens' needle phobia, including how the
phobia would manifest itself if Stevens were to administer
immunizations by injection and whether there were any
accommodations that would enable Stevens to perform
injections. Dr. Warfel's response stated that if Stevens
were to administer an injection, "[h]e would become
diaphoretic, hypotensive and probably faint. Vagal
response."  Dr. Warfel further advised that Stevens
could not safely administer an injection, since the
likelihood that he would faint would be "unsafe for the
patient and Mr. Stevens."
August, Rite Aid officials told Stevens that the ADA did not
apply to trypanophobia, that Rite Aid was not required to
accommodate Stevens, and that Stevens would lose his job
unless he successfully completed immunization training.
Stevens later told Spink that he would not be able to
complete the training. On August 23, a Rite Aid official gave
Stevens a termination letter, informing him that he was ...