On June 1, 2006, a sixteen-year old working at McDonald’s asked his supervisor three times if he could take his prescription anti-seizure medication. Each time, the request was rejected and, in the course of denying the last request, the supervisor called the plaintiff a “f…ing retard.” Fearing he would suffer a seizure, the young plaintiff left work crying and did not return. As a consequence of his treatment by his supervisor at McDonald’s, the plaintiff testified he became “withdrawn” and “a recluse.” He explained “[h]e felt he couldn’t do anything [and] was afraid he would suffer the same experience at another job.” Apparently his mother also testified: the plaintiff “wouldn’t go outside, slept all day and had to be home schooled.” She further testified the plaintiff “became depressed and introverted” and “was no longer active [and] lost interest in everything.” Plaintiff believed a school friend who worked at McDonald’s told other school friends about the incident and they began calling plaintiff a ‘f…ing retard” and teased him by saying, “I hear you can’t even keep a job at McDonald’s because you’re a f…ing retard.”

Initially the plaintiff sued in federal court, seeking to recover under the American’s with Disabilities Act because of the supervisor’s refusal to allow him to take his prescription anti-seizure medication. In denying the plaintiff recovery on the ADA claims, the federal court also determined that the manager’s conduct was “not severe.” The federal court did not adjudicate the state law claims, including the one for intentional infliction of emotional distress. Instead, the federal court dismissed those claims without prejudice and the plaintiff soon refiled the state law claims in state court.

Initially, McDonald’s saw great success by arguing the federal judge’s finding that the supervisor’s conduct was “not severe” precluded the plaintiff’s intentional infliction of emotional distress claim: the trial court granted summary judgment in McDonald’s favor and the Oklahoma Court of Civil Appeals affirmed.

Plaintiff persevered and pursued his claim to the Oklahoma Supreme Court. That Court reversed the lower court’s decisions, holding the plaintiff was entitled to a jury trial:

Viewing the evidentiary materials in a light most favorable to [the] plaintiff . . ., we hold that the “highly unpleasant mental reactions” that plaintiff . . . and his mother described are reasonable and justified under the circumstances. We also hold they go beyond mere hurt feelings, insult, indignity, and annoyance and could be reasonably regarded to constitute emotional distress so severe that no reasonable person could be expected to endure it. In such cases, “[i]t is for the jury to determine whether, on the evidence, severe emotional distress in fact existed.”

Durham v. McDonald’s Restaurants of Oklahoma, Inc., 2011 OK 45, ¶ 16 (citations omitted).

As “words may [legally] hurt” an employee, supervisors are cautioned to be careful in all communications with subordinates and to avoid profanity and pejorative words.

On July 27, 2009, Elsa Sallard, a dwarf, was hired by Starbucks to be a barista – a customer service position that requires the employee to prepare orders and serve customers. Three days into her employment with Starbucks – still during a training period – Ms. Sallard requested she be provided with “a stool or small stepladder” in order to be able “to perform the essential functions of preparing orders and serving customers at the counter.” In a lawsuit filed on May 11, 2011, it is alleged that Starbucks refused to provide the requested stool or stepladder, refused to discuss Ms. Sallard’s request for an accommodation and, claiming she could potentially be a danger to customers and employees, fired Ms. Sallard.

Nearly two years after she was fired from her three-day job with Starbucks, the Equal Employment Opportunity Commission (“EEOC”) filed suit against Starbucks in the United States District Court for the Western District of Texas on behalf of Ms. Sallard, claiming Starbucks violated the ADA by not discussing Ms. Sallard’s request for an accommodation. The EEOC requests injunctive relief against Starbucks as well as an award of monetary damages for Ms. Sallard’s mental and emotional pain and suffering, loss of enjoyment of life, inconvenience, lost wages and lost benefits. The EEOC also seeks punitive damages for Ms. Sallard.

A press release issued by the EEOC on Monday, May 16, 2011, stated: “Employers cannot blithely ignore a request for a reasonable accommodation by a qualified individual with a disability,” said Joel Clark, trial attorney for the EEOC. “Starbucks flatly refused to discuss Ms. Sallard’s reasonable request. Instead, they assumed the worst and fired her. The ADA was enacted to prevent that kind of misguided, fear-driven reaction.”

Starbucks will have twenty-one days to respond to the EEOC’s allegations. A copy of the complaint can be viewed here.

In June of 1993, Oklahoma enacted the “Standards for Workplace Drug and Alcohol Testing Act” (“the Act”), OKLA. STAT. tit. 40, § 551, et seq. According to the plain language of the Act, no Oklahoma employer may conduct drug or alcohol testing on any employee unless the employer has first adopted a written, detailed policy setting forth the specifics of its drug or alcohol testing program. (Note: If drug or alcohol testing is required by and conducted pursuant to Federal law, the employer need not also comply with the Act with respect to the employees covered by the federal requirements.) In the eighteen years since the Act was adopted, it appears that only three cases have been decided under the Act: McClure v. ConocoPhillips Co., 2006 OK 42, 142 P.3d 390; Estes v. ConocoPhillips Co., 2008 OK 21, 184 P.3d 518; and, most recently, Mike v. Professional Clinical Laboratory, Inc., No. 09-CV-363 JHP FHM, 2011 WL 673994 (N.D.Okla. Feb. 16, 2011). While the lessons from McClure and Estes have been discussed for years, the lessons to be learned by employers from Mike are important to any Oklahoma employer who conducts drug and alcohol testing under the Act.

Facts: In Mike, the plaintiff (employee) Kelli Mike, a Licensed Practical Nurse (“LPN”), was employed by Leisure Village Health Care Center (“Leisure Village”), a long-term care, skilled nursing facility located in Tulsa, Oklahoma. In June of 2007, Leisure Village staff noticed some Lortab was missing. Leisure Village required all Certified Medical Assistants and LPNs, including Mike, to submit to a drug test.

Leisure Village submitted Mike’s specimen (and the other employee’s specimens) to ProLab, a laboratory with whom Leisure Village contracted for the provision of clinical laboratory services to Leisure Village patients. Although ProLab was federally licensed to provide clinical laboratory testing services, ProLab was not licensed to conduct forensic drug tests and, in addition, Leisure Village had no agreement with ProLab to conduct drug and alcohol testing on employees.

Mike’s specimen tested positive for illicit drugs (not Lortab, but marijuana and possibly cocaine). ProLab returned the information to Leisure Village and, in turn, Leisure Village reported Mike to the Oklahoma Board of Nursing (“Nursing Board”). Leisure Village did not, however, inform Mike of the results of the testing nor confront her with the results and permit her an opportunity to have the specimen re-tested. Rather, Mike learned of the results when she was contacted by the Nursing Board.

Eventually, Mike sued Leisure Village and, after some period of litigation, settled with Leisure Village for $100,000. Leisure Village sued ProLab to attempt to recover the money it paid Mike. In addition, Mike sued ProLab for alleged breaches of the Act and for gross negligence.

In Mike’s case against ProLab, the Court granted summary judgment to ProLab, finding ProLab was not liable to Leisure Village under the Act. In Leisure Village’s case against ProLab, the Court granted judgment to ProLab finding liability for Mike’s damages remained with Leisure Village.

Lessons Learned: So, after three lawsuits involving the employee, the employer and the testing lab, what lessons can be learned from Mike:

1. Drug and Alcohol Testing may be conducted in Oklahoma only in compliance with the Act.

2. The Act requires the employer to adopt a written drug and alcohol testing policy.

3. The policy should include many specifics, including but not limited to: specification of circumstances under which testing may be demanded; designation of a collection site, procedures for the security of the collection site, preparation of chain of custody forms, restricted access to the collection site, and steps to ensure the integrity and identity of the employee’s specimen.

4. The employer must pay all costs of the testing and must pay the employee for time spent traveling to an off-site testing facility.

5. The employer must offer an employee assistance program (“EAP”) before testing.

6. The employer must maintain all drug and alcohol testing records in a confidential manner as the Act prohibits use of drug and alcohol testing records in “any civil or administrative proceeding.”

There are many other requirements and nuances to Oklahoma’s Standards for Workplace Drug and Alcohol Testing Act. We would be happy to work with any employer to help ensure the employer’s drug and alcohol testing policy is in compliance with the Act.