By Kathleen Kapusta, J.D.

Walmart failed to come forward with any expert testimony or evidence demonstrating that the employee was impaired on the day she was injured.

After finding an implied private cause of action for violations of the Arizona Medical Marijuana Act’s (AMMA) anti-discrimination provision, and finding no conflict between that provision and the Drug Testing of Employees Act (DTEA), a federal court in Arizona sua sponte granted summary judgment solely on the question of liability to a Walmart employee, and medical marijuana cardholder, who alleged discrimination under the AMMA based on her termination for testing positive for marijuana metabolites. The court, however, granted summary judgment against her state-law regarded as disability discrimination claim, finding that her alleged impairment—the effects of medical marijuana use—was objectively transitory and minor and thus barred her from meeting the law’s definition of disabled. Her claim that Walmart retaliated against her for pursuing her rights under the state’s workers’ compensation law also failed (Whitmire v. Wal-Mart Stores, Inc., February 7, 2019, Teilborg, J.).

Hired in 2008 as a cashier, the employee was promoted to customer service supervisor in late 2013. Around that same time, she obtained an Arizona medical marijuana card and began smoking medical marijuana before bed as a sleep aid and to treat chronic pain. She claimed she never brought marijuana to work and was never impaired during work hours. In January 2016, Walmart modified its Alcohol and Drug Abuse Policy to expressly prohibit employees from reporting to work under the influence of drugs or alcohol, including medical marijuana.

Injured. Four months later, the employee was injured when a bag of ice fell on her wrist. She filed an incident report and when her wrist still hurt two days later, the personnel coordinator directed her to an urgent care clinic where she received an x-ray and submitted to a drug test. At that point, she informed the personnel coordinator of her medical marijuana use and cardholder status.

Fired. When her drug screen tested positive for medical marijuana metabolites, she was suspended and then terminated due to the positive drug test. She subsequently sued, alleging she was wrongfully terminated and/or discriminated against in violation of the AMMA, the Arizona Civil Rights Act (ACRA), the Arizona Employment Protection Act (AEPA), and the Arizona workers’ compensation statutes. For its part, Walmart asserted as an affirmative defense that it had implemented a drug testing program in compliance with state law, and thus it was protected from litigation under the DTEA.

Private cause of action. Walmart first argued that the employee’s discrimination claim under the AMMA, which was enacted by ballot initiative, failed as a matter of law because the statute does not provide a private right of action. The employee, however, pointed to H.B. 2541, which the Arizona Legislature passed in response to the enactment of the AMMA, and which amended the DTEA to expand protections for employers who terminate an employee “based on the employer’s good faith belief that [the] employee had an impairment while working while on the employer’s premises or during hours of employment.” That the Arizona Legislature made these modifications to the DTEA to protect employers from litigation suggested that it believed the AMMA supplied an implied private right of action for employees against employers allegedly violating the AMMA, said the court.

And while Walmart argued that other courts considering the issue have held that similar medical marijuana laws were enacted to decriminalize medical marijuana use, not create an implied cause of action against employers, the court here found that most of the cases cited by the retailer did not involve medical marijuana statutes with anti-discrimination provisions even remotely similar to the one at issue here.

Persuaded by Noffsinger and Chance. More persuasive, said the court, were Noffsinger v. SSC Niantic Operating Co. LLC, and Chance v. Kraft Heinz Foods Co., in which the courts found that similar anti-discrimination provisions in medical marijuana acts in Connecticut and Delaware created an implied right private right of action. Finding an implied private cause of action for violations of Section 36–2813(B) of the AMMA, the court concluded that the employee could proceed with her claim for discrimination in violation of the AMMA. It dismissed, however, her claim that Walmart wrongfully terminated her in violation of the AEPA by firing her because of her positive drug screen in violation of the public policy set forth in the AMMA because it relied on the same set of facts.

DTEA and AMMA. The court next considered whether provisions of the DTEA unconstitutionally amended Section 36-2813(B)(2), which provides that “an employer may not discriminate against a person in hiring, termination or imposing any term or condition of employment or otherwise penalize a person based upon . . . [a] registered qualifying patient’s positive drug test for marijuana components or metabolites, unless the patient used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of employment.” Enacted after the AMMA, the DTEA provides that “No cause of action is or may be established for any person against an employer who has established a policy and initiated a testing program in accordance with this article for . . . [a]ctions based on the employer’s good faith belief that an employee had an impairment while working while on the employer’s premises or during hours of employment.”

While the Voter Protection Act prevents the legislature from repealing an initiative-enacted law, and provides that it may only be modified by a three-fourths vote when the change furthers the law’s purpose, the court found that here, the provisions could be harmonized. As relevant, said the court, “the AMMA and DTEA provisions can and should be read together as follows: an employer cannot be sued for firing a registered qualifying patient based on the employer’s good-faith belief that the employee was impaired by marijuana at work, where that belief is based on a drug test sufficiently establishing the presence of ‘metabolites or components of marijuana’ sufficient to cause impairment.”

Drug screen alone. Turning to the employee’s AMMA discrimination claim, the court observed that at issue was whether her positive drug screen, alone, was sufficient to support Walmart’s “good faith belief” she was impaired by marijuana at work on the day she was injured in the absence of any other evidence of impairment or any expert testimony establishing that the level of metabolites present in her drug screen demonstrated that marijuana was present in her system in a sufficient concentration to cause impairment. While Walmart argued that its “good faith belief cannot be supported or controverted by any expert witness testimony as it is a fact question solely based on the test result,” the court found it clear that proving impairment based on the results of a drug screen is a scientific matter that requires expert testimony.

Without expert testimony establishing that the drug screen showed marijuana metabolites or components in a sufficient concentration to cause impairment, Walmart, said the court, was unable to prove that her drug screen gave it a “good faith basis” to believe she was impaired at work. Accordingly, Walmart’s affirmative defense under the DTEA failed and the court denied the retailer’s summary judgment motion on the employee’s AMMA discrimination claim.

Complete disregard for the AMMA. And while Walmart argued that the employee was terminated for testing positive for marijuana in violation of its policy, which is a legitimate reason for termination, even under the AMMA, the employee argued that terminating a registered qualifying patient who tests positive for marijuana “regardless of whether the employee possesses a medical marijuana card and regardless of the level of marijuana detected” constitutes a “complete and ‘bright line’ disregard for the” AMMA’s anti-discrimination provision.

Sua sponte grant of summary judgment. Observing that Section 36-2813(B)(2) protects qualifying registered patients who merely test positive for marijuana metabolites, the court pointed out that without any evidence that the employee “used, possessed or was impaired by marijuana” at work it was clear Walmart discriminated against her by suspending and then terminating her solely based on her positive drug screen. Thus, there was no genuine dispute of material fact remaining for trial. Because Walmart did not come forth with any evidence establishing that the employee was impaired, the court sua sponte granted summary judgment in part to the employee on the question of liability on this claim.

Disability discrimination. As to the employee’s claim she was wrongfully terminated on the basis of disability in violation of the ACRA, the court first found that her alleged impairment—the effects of medical marijuana use—appeared to be objectively transitory and minor and thus barred her from meeting the ACRA’s definition of disabled.

Further, said the court, putting aside the issue of whether the reference to “impairment caused by current use of illegal drugs” in A.R.S. § 41-1461(4) includes impairment caused by medical marijuana use, case law from the Third and Seventh Circuits suggests that “if one can alter or remove the ‘impairment’ through an equally efficacious course of treatment, it should not be considered ‘disabling.’” And here, the employee did not show that smoking medical marijuana was “required in the prudent judgment of the medical profession.” Rather, the court observed, it is still classified as a Schedule 1 controlled substance under the Controlled Substances Act, meaning it “has a high potential for abuse,” and “has no currently accepted medical use in treatment in the United States.” Nor did she show that no other equally effective alternatives exist which lack medical marijuana’s side-effects. Accordingly, Walmart was entitled to summary judgment on this claim.

Workers’ comp retaliation. Her claim that Walmart retaliated against her for pursuing her rights under the state’s workers’ compensation statutes in violation of the AEPA fared no better. While the court found she engaged in a protected activity when she reported her wrist injury—by filling out the incident report, she triggered the investigation into her accident—and the 62 days between that report and her termination established a causal link, she failed to offer any evidence suggesting that Walmart did not honestly believe its legitimate, nonretaliatory reason for terminating her—its good faith belief she was impaired by marijuana based on her positive drug test. Nor did she argue that the reasons provided were pretext for retaliation.