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Newly hired VP with chronic pain who failed pre-employment drug screen fails on discrimination claims

By Brandi O. Brown, J.D.

His “chronic back pain,” for which he used marijuana as treatment, was not a qualified disability.

On an employer’s motion for summary judgment, a federal district court in California dismissed all claims of a new company VP who was hired and fired in quick succession after he failed a required pre-employment drug screen. The employee could not establish that he suffered from a “disability” under the FEHA, and the employer provided a legitimate, non-discriminatory reason for firing him. From there, the court was able to determine that many of his remaining claims could not proceed to trial. Accordingly, the employer’s motion for summary judgment was granted (Espindola v. Wismettac Asian Foods, Inc., April 28, 2021, Holcomb, J.).

Took job, subject to testing. In 2018 the employee was contacted by a recruiter as part of a search for a candidate for the Division Vice President of Imports Position with the employer, Wismettac Asian Foods, Inc. He was interviewed and offered the position. He signed the offer letter and his employment was scheduled to begin on December 3. The offer letter advised him that he would be subject to the policies set forth in the employer’s Employee Handbook, although the VP did not receive a copy of it at the time. Importantly for the purposes of this lawsuit that handbook included a provision for pre-employment drug testing, which stated that “[a]ll employees are subject to a pre-employment drug test at the time of hire.”

Shares test concerns with CEO. When the recruiter contacted the employee in mid-November to schedule the drug screening, that was the first time the test was discussed. The employee informed the recruiter that he could not submit to the test before his job started because of pre-existing plans. The test was postponed. In the meantime, the employee applied for a medical marijuana card. The day before he began work he filled out a “Personnel Information Sheet,” on which he indicated that he was not “disabled.” The next day he completed the remaining onboarding paperwork, including a drug testing consent form, and he signed the employee handbook. Thereafter, however, he expressed concern about the drug test in a conversation with the CEO, telling him that he suffered from “chronic back pain” and that he was “prescribed” marijuana for treatment. He did not provide any other details or documentation.

Fails test, fired. The next day he forwarded information about his approval for a Florida medical marijuana card to the CEO. The CEO suspended the pre-employment drug test and consulted with the company’s Senior Vice President. Ultimately, however, the Senior VP confirmed that all employees are required to complete the screening. The employee  tested positive for marijuana. The employer terminated his employment shortly thereafter because of the failed test. The employee filed suit asserting eight claims for relief, including age discrimination, disability discrimination, failure to provide accommodation, failure to engage in an interactive process, failure to prevent discrimination, retaliation, wrongful termination in violation of public policy, and intrusion into private affairs. The employer moved for summary judgment.

Not disabled. In order to determine whether the employee had been subjected to disability discrimination the court first had to determine whether his impairment qualified as a “disability” under the FEHA. According to the employee his “chronic back pain” was a qualified disability, but the employer argued that disclosure of that condition, alone, was not sufficient to establish that he suffered from an actual or perceived disability at the time. It noted that on the Personnel Information Sheet the employee filled out while onboarding he denied that he had a “disability” as well. The court concluded that, in this context, “chronic back pain” was not a qualified disability. Neither of the cases the employee contended supported his claim, the court explained, supported the idea that “chronic back pain,” without specific details about the nature of the condition, qualifies as a disability under the FEHA.

Needed additional detail or documentation. Rather, the court found the California Court of Appeal decision in Arteaga v. Brink’s, Inc. instructive on this question. In that case, the court had reasoned that “pain” symptoms are subjective and that a report of such a symptom, without either additional detail or documentation, would not suffice to establish a qualifying disability under the FEHA. Like the plaintiff in Arteaga, the court explained, the employee in this case did not provide additional details about his specific condition or how it limited him. He also did not provide any supporting documentation, such as medical records or a doctor’s note. In fact, he indicated that he did not have a disability when he filled out the information sheet.

Finally, the court noted that there was no record evidence that his condition limited his ability to work. It was undisputed that he was able to work every day in the office, on a fulltime basis, during his short tenure, and he completed several substantive projects. Based on the undisputed evidence, the court concluded, a reasonable employer would have concluded the employee’s pain was not disabling. For the same reasons, the court noted, it found that the employee could not establish that the employer perceived him as disabled.

Screening allowed. Moreover, even if the employee could have established that he suffered from a qualified disability, he could not overcome the employer’s substantial evidence that he was fired for a legitimate, nondiscriminatory reason—his failure of the drug test. Under California law employers are allowed to condition employment on completion of a preemployment drug screen. The employee did not cite any authority supporting his argument that the drug test had to be an express condition of the employment offer in order to be lawful. It was undisputed that he received notice of the preemployment screening policy before his employment started.

With regard to his remaining claims, several were affected by the court’s conclusion that the employee could not establish that he suffered from a “disability,” and none of them survived the motion.