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Employee’s crying foul on race discrimination after positive drug test result doesn’t save job

July 26th, 2016  |  Ron Miller

A Native American woman, who was discharged from her employment after testing positive for marijuana use following a random drug test, could not maintain a claim for discrimination based on race, ruled a federal district court in Arizona. In Yazzie v. County of Mohave, the court determined that even if the employee could establish a prima facie case of discrimination, the employer set forth a legitimate, nondiscriminatory reason for terminating her. The employee was employed in a safety sensitive position operating heavy equipment. If she was impaired by drugs or alcohol while on duty, the likelihood of harm to herself and the general public would be substantially increased. Because the employee admitted to illegally consuming marijuana and tested positive for marijuana while on duty, the employer’s decision to terminate her fell entirely within its policies.

Drug testing policy. The employee worked for the county’s public works department for over 17 years. As a heavy equipment operator, she was required to maintain a commercial driver’s license (CDL). Additionally, employees who operated commercial vehicles, including heavy equipment, were regarded as being in safety sensitive positions. The employer maintained rules governing discipline for employees who tested positive for drugs or alcohol while on duty. Employees were subject to random drug tests. The employee knew that the work rules prohibited the consumption of marijuana, signed acknowledgements that she received a copy of county policies, and attended training sessions addressing the prohibited consumption of illegal drugs.

Nevertheless, after being selected for a random drug test, the employee tested positive for marijuana use. Initially, she asserted that the result was a false positive because she had consumed a prescription drug. Ultimately, she acknowledged that the positive result stemmed from her recent marijuana use. She was placed on administrative leave and ultimately terminated. Thereafter, she filed this lawsuit. In response, the employer filed a motion for summary judgment.

Discrimination claim. The employee alleged that the employer discriminated against her based on race and/or ancestry in violation of Title VII, Section 1981, and Section 1983. Specifically, she claimed that other non-Native American employees received more frequent promotions and pay raises. She also asserted that “the County did not terminate other similarly situated non-Native American employees who violated the County’s Drug and Alcohol Policies.”

Here, the court concluded that the employee failed to present any direct or circumstantial evidence indicating that the employer was more likely than not motivated by discriminatory intent. Applying the burden-shifting McDonnell Douglas framework, the employer did not dispute that the employee was a member of a protected class, was qualified for the employment position, and experienced an adverse employment action. However, it did argue that she failed to show non-Native American employees were treated more favorably than her. Alternatively, the employer contended that the employee did not demonstrate that its legitimate, nondiscriminatory reason for terminating her—testing positive for marijuana while on duty—was pretextual.

Failure-to-promote claim. As an initial matter, the court found that the employee’s claims that she was discriminated against for promotions between 1995 and 2002 were time barred as she did not file this lawsuit until 2014. With respect to the remaining claims, the court found nothing in the record to support her failure-to-promote claim. Similarly, nothing in the record established that non-Native Americans were promoted faster or more frequently than the employee.

As to her termination claim, no admissible evidence supported her assertion that similarly situated, non-Native American employees tested positive for drugs or alcohol while on duty but were not terminated. The undisputed facts demonstrated that all 10 employees who failed drug or alcohol tests since January 2010 were terminated or resigned in lieu of termination. Because the employee failed to set forth a prima facie case of discrimination, summary judgment was granted in the employer’s favor on her Title VII and Section 1981 claims.