Labor & Employment Law Daily Wrongful termination, retaliation claims of TVA lab tech who took synthetic THC for anxiety advance
Friday, December 4, 2020

Wrongful termination, retaliation claims of TVA lab tech who took synthetic THC for anxiety advance

By Kathleen Kapusta, J.D.

The court also addressed cross-motions for summary judgment regarding the employee’s claim that TVA unlawfully required medical exams and unlawfully required him to disclose all his medications.

A chemistry lab technician for the Tennessee Valley Authority who suffered from anxiety and depression, and who was fired after he violated a last chance agreement (LCA) that required him to disclose all medications he was taking, was not entitled to summary judgment on his Rehab Act claims alleging the TVA unlawfully required him to submit to several fitness-for-duty exams, fired him due to his disability, and retaliated against him. And while a federal court in Tennessee also denied TVA’s motion for summary judgment as to two of the exams, it granted summary judgment against the employee’s claim that the LCA violated the ADA. The employer’s motion was denied, however, as to his wrongful termination and retaliation claims (Hixon v. Tennessee Valley Authority Board of Directors, December 1, 2020, Collier, C.).

Medical leaves. Hired in 2001, the employee, who worked in a safety sensitive position, took a medical leave in 2005 due to a psychiatric hospitalization. Before returning to work, he was required to pass a fitness-for-duty (FFD) exam and sign a contract requiring him to disclose any medications that could interfere with his ability to safely perform his job. He took a second leave in 2012 for psychiatric and alcohol-abuse treatment and again was required to pass an FFD exam upon returning to work.

Marinol. In November 2013, he began taking Marinol, a synthetic version of THC that can have psychoactive effects, for his anxiety. When he was selected for a random drug test the following month, he disclosed this prescription for the first time. Because he tested positive for THC, which was determined to be a safety concern, his drug sample was sent to a second lab, which determined that his positive result could not have been from Marinol alone.

January FFDs. On January 6, the employee, due to his use of Marinol, was required to submit to another FFD exam. Because the doctor determined that the employee’s depression was not well controlled, he underwent another exam on January 14, which was administered by a psychologist, who concluded that he should not be allowed to work until he was more psychologically stable. TVA then suspended him and in response, he filed a complaint with TVA’s Equal Opportunity Compliance Office (EOCO).

March exams. After the employee was cleared by the Employee Assistance Program in early March to return to work, he was reexamined by both the doctor and psychologist; both determined he was fit to return to work. He was required, however, to sign an LCA requiring that he disclose all his medications in writing every month and barring him from taking Marinol. When he failed to disclose his medications the following month, he was fired.

Unlawful examinations. Moving for partial summary judgment on his disability discrimination claims, the employee first argued that TVA could not refer him for a medical exam after his positive drug test and even if it could, the January 6 exam was over-intrusive. Noting that the issue before it was whether his lawfully prescribed Marinol was sufficient, on its own, to require an exam, the court cited evidence he was performing his job safely and that doctors stated he could work safely while using Marinol. However, there was also evidence that Marinol can cause serious and debilitating side effects, can have psychotic effects, and can worsen depression. Nor, the court pointed out, has the FDA approved Marinol to treat anxiety.

Taking all inferences in favor of TVA, the court found the employee could not prove there was no genuine fact dispute as to whether Marinol affected his ability to perform his work. On the other hand, taking all inferences in his favor, there was no evidence he was acting any differently at work or in an unsafe manner and thus a jury could find requiring an exam was unreasonable. Thus, neither party was entitled to summary judgment as to whether there was sufficient evidence he could fulfill the essential attributes of his job to support the first exam.

Direct threat. Nor was either party entitled to summary judgment on whether the employee’s use of Marinol constituted a direct threat in the workplace. There was no required individualized assessment of the employee, the court observed, noting that no one at TVA asked if he had suffered any of the side effects of Marinol before ordering an exam and no one analyzed any evidence from his supervisors or files before concluding he was a safety risk. But there was also evidence the employee posed a direct threat, said the court, noting Marinol has debilitating side effects and a positive drug test may serve as a sufficiently individualized exam. Further, the employee worked in a dangerous job and Marinol use could pose a significant risk to the health and safety of others.

Scope of exam. As to the employee’s claim the exam violated the ADA because it was too expansive—the doctor asked him about his finances, his girlfriend, and other physical injuries among other topics—that the doctor believed the exam could be wide-ranging and not related to the employee’s job established a fact issue as to whether the exam was sufficiently narrow. But it may also have been reasonable to inquire into a wide range of topics due to Marinol’s potentially dangerous side effects. Thus, neither party was entitled to summary judgment on this issue.

January 14 exam. Turning to the January 14 psychological exam, the court again noted a lack of evidence from the employee’s supervisor or coworkers showing he could not perform his job safely. Nor did the doctor’s observations that the employee was somewhat disheveled, didn’t make eye contact, and spoke softly provide sufficient evidence to support the reasonableness of the exam. However, the court observed, Marinol use could, on its own, sufficiently support the exam. Further, the doctor’s observation that the employee’s depression was not well controlled was additional evidence the exam may have been warranted. Thus, both parties’ summary judgment motions were denied.

March examinations. Next, the employee argued that the March exams violated the ADA because they were the result of the first illegal exam. Here, however, there was sufficient evidence to support a reentry to work exam as TVA’s reasonable belief the employee could not work safely was supported by the opinions of the examining doctor and psychologist. Accordingly, TVA was entitled to summary judgment as to this claim.

LCA. And while the employee also argued that the LCA was invalid as a matter of law because he was required to disclose all medications upon his return to work, LCAs can serve as a reasonable and beneficial accommodation for a disabled employee, said the court, declining to take a position that would render LCAs useless. Pointing out that the employee knowingly and voluntarily signed the agreement and as a result was allowed to return to work, the court found he could not now claim it violated the ADA.

Wrongful termination. As to the employee’s wrongful termination claim, while TVA argued that he was not otherwise qualified for his job because he did not comply with the LCA, abiding by the specific aspects of the agreement was not an essential function of his work. Further, no other workers were required to disclose all of their medications to TVA, said the court, noting that if “all the other workers could perform their jobs without disclosing their medications, the requirement to do so is certainly not essential.” Similarly, his failure to comply with HR’s fitness program policy did not show he could not perform the essential attributes of his job, which involved performing experiments and examinations, not complying with HR policy.

Because TVA proffered a legitimate, nondiscriminatory reason for terminating him—he violated the LCA and the second drug test showed he lied about using marijuana—the court turned to pretext. And here, there was evidence TVA provided shifting rationales for the employee’s termination. Specifically, while the head of the fitness program and the employee’s supervisor both initially stated that the employee was terminated because he violated the LCA, sixth months later, the supervisor claimed the employee’s positive drug test for marijuana and his dishonesty were additional reasons. Thus, TVA was not entitled to summary judgment on this claim. Nor was the employee’s evidence enough to warrant summary judgment in his favor.

Retaliation. Finally, as to the employee’s retaliation claim, the court found his termination three months after his supervisor discovered his EOCO complaint, and only two months after he had returned to work, was enough to establish causation. Based on the same evidence of pretext, the court denied TVA’s motion for summary judgment against this claim as well.

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