UPS Fires 32-Year Black Employee After Failed Drug Test Despite His Medical-Marijuana Card

James Terry gave United Parcel Service 32 years of his life.

The company canned him in April the first time he failed a drug test.

Terry tested positive for marijuana and amphetamines. But, as he explained to his bosses, he has a valid Arizona medical-marijuana card and a doctor's prescription for Adderall. They wouldn't budge.

"He's a model employee, and all of a sudden this happens." — Lawyer for 32-year UPS worker who was fired last year after failing a drug test.

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UPS says what it did was within policy and the law.

Now Terry, a 53-year-old African-American man from Buckeye, is taking on the parcel giant in federal court.

He's suing for alleged violations of the Americans With Disabilities Act, based on the underlying reasons for his use of medications, and for "unlawful discrimination in violation of the [Arizona Medical Marijuana Act]."

Terry was the director of sales for UPS' Desert Mountain District, a five-state regional hub based in Phoenix. He's also suing for sex, race, and age discrimination: UPS replaced him with a young white woman. He's seeking back and front pay, punitive damages, and attorneys' fees. Local attorney Chris Beams is representing him in the complaint.

"Sad — that was my take when I first heard about this," Beams said. "He's a model employee, and all of a sudden this happens."

This week, the Atlanta-based company released a brief statement to Phoenix New Times about the case: "UPS policy is created and administered in a way that takes into account the interests of its employees, its customers, its shareholders and the general public. The company applied its policies in a lawful and appropriate way to this case."

Apparently, the company accuses Terry of being impaired on the job, a claim he strongly denies. The sixth and final count of his complaint is for alleged defamation.

"UPS management and/or human resources employees communicated false and defamatory statements ... that James Terry violated UPS' drug and alcohol policy and that James Terry was impaired at work," says the complaint, which was filed in Arizona U.S. District Court on December 28. "The defamatory statements injured James Terry's professional reputation."

The complaint comes about five months after UPS agreed to pay $2 million to former employees nationwide who charged the company with failing to find reasonable accommodations for disabled workers and maintaining an "inflexible leave policy."

Still unemployed, Terry isn't ready to give a statement given the pending litigation, Beams said. Despite the complaint, he's currently talking to UPS about the status of his retirement pay.

With about 33 years on the job, Terry would have been eligible for early retirement and pension pay in two years. But employees who separate with UPS before age 55 only get 40 percent of the typical early retirement benefits, the lawyer said.

Terry worked his way up the ranks at UPS over the years, moving his family around the country more than once, Beams said. He has "no history of poor performance or misconduct of any kind during his career with UPS," according to his complaint. On a Twitter site used by Desert Mountain employees, @DesertMTUPSers, Terry was congratulated in a December 2, 2016, tweet for his "new assignment as Director of Sales."

He achieved this goal despite obstacles with his health. As the complaint says, Terry "suffers from nearly constant and extreme hip pain for which he has had numerous surgeries and engages in weekly physical therapy." He treats his hip with medical marijuana and uses Adderall to treat his attention deficit disorder. He's also diabetic.

On Monday, April 10, Terry was in his office meeting with one of his sales managers when a human resources worker came in, "looking baffled" and asking to speak with Terry. He asked her to come back in 15 minutes. She returned in 10 with another HR employee and a nurse. They told him he was required to take a drug test "immediately." The only explanation they gave was that "'observable behavior' had been reported."

Terry submitted to the drug screening, then was told to go home until further notice. A medical review officer called him on April 19 to tell him that the test had been positive for marijuana metabolites and amphetamines. Terry told the man he was legally allowed to use both substances. He was later told to meet UPS representatives at a Phoenix hotel the next day.

Meredith Cox, UPS business development director and Terry's supervisor, told Terry he was being fired for violating the company's drug and alcohol policy. Terry repeated that he had a medical-marijuana card and valid prescription for Adderall. An HR manager then asked Terry whether he'd used marijuana in the past 30 days.

Beams said that Terry admits he used a cream with medicinal marijuana on his hip five days before the drug test.

"They'll say he was clearly impaired and slurring his speech," Beams said, adding that Terry disputes any assertion that he was impaired at work.

Terry filed a discrimination charge in October with the U.S. Equal Employment Opportunity Commission, alleging race and gender bias. He received a right-to-sue letter from the federal agency the next month. But it's unclear whether the EEOC can help Terry push the idea that his use of medical marijuana is protected under the ADA.

The EEOC has no official position on the issue of medical marijuana, said Mary Jo O'Neill, EEOC regional attorney in Phoenix.

click to enlarge Mary Jo O'Neill, EEOC regional attorney - ARIZONA INDUSTRY LIAISON GROUP
Mary Jo O'Neill, EEOC regional attorney
"Marijuana is still a Schedule I drug," she said.

O'Neill pointed out that the U.S. Ninth Circuit Court of Appeals has left a narrow window open for raising the use of medical marijuana during an ADA case.

In a 2012 California case, James v. the city of Costa Mesa, the Ninth Circuit ruled that the ADA does not protect an "illegal use of drugs,” and even medicinal marijuana isn't legal under federal law.

However, as the same court stated in a Michigan case the following year, "We do not hold, as the dissent states, that 'medical marijuana users are not protected by the ADA in any circumstance.' We hold instead that the ADA does not protect medical marijuana users who claim to face discrimination on the basis of their marijuana use."

In that case, the EEOC and plaintiff Jamie Holden won a $42,500 settlement against an assisted-living company that fired Holden after she tested positive for marijuana in a drug test. Holden was able to prove that the company actually discriminated against her for having epilepsy, the underlying condition for which she used marijuana legally under Michigan law.

The Arizona Medical Marijuana Act of 2010 specifically prohibits discrimination against registered medicinal cannabis users by employers. But after voters approved it, the Arizona Legislature tweaked other areas of the law to thwart those protections. Now, with an expanded definition of impairment and long list of "safety sensitive" jobs that employers can legally keep cannabis users from, the level of protection that patients have from unwarranted termination is now unclear.

No significant court case has yet resolved the issue in Arizona. In a well-publicized Colorado case from 2015, that state's Supreme Court ruled that Dish Network was within its rights to fire an employee for off-hours cannabis use.

Terry has an uphill battle to fight, at least on the issue of his right to use medical marijuana. But with the modern legal debate about cannabis use and employment still unresolved, the case of a former UPS worker may deliver much-needed answers.
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Ray Stern has worked as a newspaper reporter in Arizona for more than two decades. He's won numerous awards for his reporting, including the Arizona Press Club's Don Bolles Award for Investigative Journalism.