PHOENIX (Legal Newsline) - A UPS sales manager who told coworkers he saw scorpions and repeatedly asked the same question can’t claim protection under an Arizona law that prohibits companies from firing employees if they test positive for marijuana, an appeals court ruled.
The package-delivery service supplied enough additional evidence, including statements from three coworkers, to show he was fired because of his behavior, the court concluded.
On the morning after he returned from vacation, James Terry met with the sales managers who reported to him. According to testimony from several of those coworkers, Terry said something about a “a scorpion climbing up a wall.” He also allegedly had slurred speech, repeated questions and had heavy eyelids and red eyes.
Terry later testified he actually said “I think I saw a scorpion run across the table” to test if anyone was paying attention. But three coworkers filed fitness-for-duty forms and UPS told Terry to provide a urine sample, which tested positive for THC and amphetamine. Terry later informed UPS he had an Arizona medical marijuana card and a prescription for Adderall but was fired anyway. The employees who fired him testified they didn’t know he had a medical marijuana card.
Terry first sued in federal court, then dismissed the case and filed in Arizona state court, claiming unlawful discrimination under the Arizona Medical Marijuana Act and defamation. In 2019 the court found he had no private cause of action under AMMA but refused to dismiss the case, saying there were disputed facts about the defamation claim and whether UPS violated AMMA. Terry amended his complaint to add a claim UPS violated the Arizona Employment Protection Act but the court dismissed his case in 2020, citing the state Drug Testing of Employees Act.
Arizona’s Division One Court of Appeals, in a March 31 decision, upheld the dismissal.
Terry argued UPS violated the AMMA by firing him over the presence of legal marijuana metabolites in his urine. But UPS fired him because of his observed behavior at work and for violating the company’s drug and alcohol policy, the appeals court said. Arizona is an at-will employment state, meaning UPS could fire him even if the behavior was disputed.
The AMMA protects employees against being fired simply for possessing a medical marijuana card or testing positive for marijuana, the court continued, but not if the employee uses or is impaired by the drug at work. And to avail himself of the protection of AMMA, Terry had to cite it when he was ordered to submit to a test, the court said. Otherwise employees could submit to a drug test, knowing they would test positive, and then claim immunity from firing under AMMA, the court concluded.
The appeals court also rejected Terry’s defamation claim.
“Terry did not claim his positive drug test was false,” the appeals court said. “Instead, he admitted to testing positive, an admission the superior court found barred his defamation claim.”
Terry was represented by Fredenberg Beams and Kelly & Lyons, while UPS was represented by Quarles & Brady.