Local Nurse Sues Hospital After New Times Story on Medical Pot Ban

Phoenix New Times wrote about how a hospital threatened to fire Timothy Costello for using medical marijuana. Now, he's suing.
Phoenix New Times wrote about how a hospital threatened to fire Timothy Costello for using medical marijuana. Now, he's suing. Ali Swenson
Valley ER nurse Timothy Costello is suing one of the biggest hospital systems in Maricopa County for its ban on employee medical marijuana use, just over a week after Phoenix New Times first wrote about his situation.

The lawsuit against Costello's employer, Valleywise Health, demands no monetary damages from the hospital. Instead, it seeks a judgment in court that the company's policy is unconstitutional, discriminatory, and in violation of state medical marijuana law.

The complaint filed Wednesday in Maricopa County Superior Court describes how the 42-year-old Costello got a medical marijuana card in December after deciding to stop taking prescription pills for his chronic back pain and trouble sleeping.

The Surprise resident and Air Force veteran told his boss at Maryvale's Valleywise Medical Center he was getting a medical card, hoping transparency would be the best policy. Instead, the company told him he'd be fired if he ever tested positive for marijuana metabolites, even if he only consumed cannabis outside of work.

Costello asked for more information, but Valleywise, which employs some 4,000 people across Maricopa County, didn't respond. He went to the state nursing board for advice, but it didn't give him a clear answer.

Afraid to use his new medical card but no longer wanting to take opiates or other prescription drugs, Costello has been relying on experimental methods to treat his ailments — severe back conditions spurring from a 2016 injury and difficulty sleeping from his time in the military.

After New Times' story last week, Costello contacted Joshua Carden, a cannabis attorney who was quoted in the piece, to seek help. Together, they filed the suit on Wednesday.

Carden said he's optimistic about his client's chances because of how Costello has approached the situation.

"Here's this guy who has worked hard, who has known the meaning of pain, he's known the meaning of service," Carden said. "He has gone about this in the most transparent and above-board and integrity-filled manner possible, and is someone that I think really represents what I would call the non-stereotyped user of medical marijuana. Although he hasn't even gotten to use it yet because of his integrity."

Carden said he is hoping for two judgments in the case.

First, he'll seek a ruling that discriminating against an employee for using medical marijuana is illegal under Arizona's 2010 Medical Marijuana Act, which clearly states an anti-discrimination policy.

Second, he'll ask the judge to strike down a law the State Legislature passed in 2011 allowing employers to fire someone without fear of retribution if the employee is in a "safety-sensitive" role and the employer has a "good faith belief" the staffer has been impaired during work hours.

Carden argues that law, HB 2541, is unconstitutional under the state's 1998 Voter Protection Act because it doesn't further the purpose of the original, voter-passed medical marijuana law.

The suit doesn't seek monetary damages, Carden explained, because Costello has not yet used medical cannabis and is still working for Valleywise Health.

"Tim's not going to lose his job over this," Carden said. "He's asking the court to make a ruling in advance so that he doesn't have to suffer any damages, and I think that's a very intelligent way to approach this."

The case follows several other high-profile medical marijuana employment cases in Arizona in recent years.

In 2018, the Arizona Supreme Court struck down a law that criminalized medical marijuana on college campuses, saying it went against the intentions of the state's medical marijuana law.

And in 2019, after an Arizona Walmart fired an employee for marijuana use, Carden helped the patient win a civil rights case against Walmart, arguing the company had no reason to believe the employee was impaired or in possession of marijuana at work.

Carden says Costello's case is unique because it offers a direct opportunity to question the constitutionality of the "safety-sensitive" provision that many employers rely on to maintain policies against medical marijuana.

It's also unique because the facts of the case are not disputed. That means a trial is likely to happen quickly, Carden said. He estimated there could be a ruling by mid-spring.

Because of its statewide significance, the case is likely to be appealed no matter the result — and could then be fast-tracked to the highest court in the state, according to Carden. There, it could set precedent and strike down a law that many employers across Arizona have written into their policies.

"There's no other case that I've ever worked on that I would say had a shot at going straight to the Arizona Supreme Court," Carden said. "This one has a possibility of that."

Costello said while this started as a personal employment issue, it's evolved from that now.

"This is definitely not about me anymore," he said. "This is about Arizona law and allowing people treatment that need it."

Michael Murphy, a spokesman for Valleywise Health, said he couldn't comment on pending litigation.

Read the full complaint below:
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Ali Swenson was an editorial fellow for Phoenix New Times starting in 2019.