On Sept. 13, 2011, plaintiff Equal Employment Opportunity Commission filed an action under the Americans with Disabilities Act, alleging that Modesto retailer Buy Rite Thrift Store illegally fired an epileptic stocker on the night shift after he experienced mild seizures at work. It claimed that rather than requesting that the worker to take a fitness exam or provide medical documentation of his ability to perform the job duties required of his position, Buy Rite relied on its own judgment to determine that the worker was a danger to himself and others. After an EEOC Investigator found reasonable cause and attempted to reach a pre-litigation settlement through its conciliation process, the EEOC sued BRT Management Co. Inc. and W & J Management Co. Inc., both of which were doing business as Buy-Rite Thrift Store. It alleged that the defendants violated the Americans with Disabilities Act. Buy Rite claimed the stocker did not indicate on his employment application or state that he had disability or consequent need for an accommodation. It alleged that it never discriminated against the stocker and, in fact, accommodated him until it became unsafe, as he injured himself when he fell to the ground upon suffering an epileptic seizure. It also alleged that after a prior seizure and fall, management and coworkers asked him if he needed medical aid, but he declined. Buy Rite management claimed that they told the stocker he could rest any time he thought he might have a seizure or after he had one, and told him that he had the right to take more breaks than others due to his condition. They also claimed that the stocker was never penalized or disciplined for having his seizures and/or for taking necessary breaks. Management further claimed that only after the stocker had another attack did he tell them that he had epilepsy, but that he claimed that he had medication to control its symptoms. Buy Rite managers claimed that they were concerned about the stocker’s safety and the safety of others given his condition and the nature of his job — lifting heavy furniture. They claimed that if the stocker fell to the ground while carrying a couch with another coworker, he could get seriously injured and/or injure the other worker. Defense counsel contended that while the stocker was offered accommodations, he declined — not wanting any modification to his work and insisting that he just needed to take his medication. Counsel asserted that, unfortunately, the stocker suffered another epileptic attack, in which he actually injured himself to the point of bleeding. Counsel noted that the ADA provides that an employer is not required to retain an employee if his disability has a risk of him, let alone being injured, while performing the essential functions of his job, absent effective and reasonable accommodations. Counsel further noted that in this incident, the stocker actually had an injury, which is worse than a speculated risk, and he also refused medical attention. Defense counsel contended that the company was deeply concerned about the stocker’s health and safety, especially upon refusing help, and that the combination of the stocker’s condition and the nature of his work — lifting and moving heavy furniture — made it impossible to keep him in that position while protecting his safety and that of others. Counsel contended that since there were no other positions or vacancies for which the stocker was qualified or which were available, Buy Rite had to terminate him. Defense counsel also asserted that the stocker could have been terminated for poor performance, as his personnel record revealed that on Feb. 26, 2009, he had a total disregard for safety of himself and others. As a result, the stocker was disciplined and warned for blocking the exit and fire area with a rack, and failing to follow instructions and fire and safety rules, counsel contended. While on Feb. 28, 2009, the stocker was written up for being late three times, and he had a total of 14 tardies, and was told that he needed to improve, counsel further contended. Defense counsel asserted that despite the stocker’s condition and unsatisfactory work situations, Buy Rite continued his employment., The EEOC claimed that the stocker suffered emotional distress as a result of his termination. Thus, it sought recovery of damages for the stocker’s lost wages and emotional distress, as well as recovery of the stocker’s punitive damages.