Labor & Employment – Wrongful Discharge – Use of Lawful Hemp-Derived Products

Employer’s drug testing policy was related to a bona fide occupational requirement and reasonably related to its employment activities.

We affirmed.

Tonya Anderson was fired from her job with Diamondback Investment Group, LLC, for failing two drug tests. She sued Diamondback for disability discrimination in violation of the Americans with Disabilities Act (ADA). She also claimed her firing violated a North Carolina law prohibiting discrimination by an employer against an employee for her use of purportedly lawful hemp-derived products containing THC to treat her anxiety and muscle spasms during nonworking hours. Anderson appealed the district court’s grant of summary judgment to Diamondback on all her claims.

Anderson suffers from anxiety. While she was employed at Diamondback, Anderson took “a combination of Delta[-]8, Delta[-]10, THC[-]O, and H[H]C 1mg in a prefilled 1g vaporizer cartridge,” using “the vaporizer as needed, consuming roughly 100mg per day.” She also used “Full Spectrum CBD3 Oil.” She purchased these products through several retail stores.

After she was terminated, Anderson sued in the district court raising three claims: a wrongful discharge claim under the ADA; a failure to accommodate claim under the ADA; and a claim for discrimination for the lawful use of lawful products during nonworking hours under N.C. Gen. Stat. Section 95-28.2. On appeal, Anderson challenged the district court’s determination that she failed to proffer sufficient evidence to establish a genuine dispute of material fact as to her wrongful discharge, failure to accommodate, and state-law discrimination claims.

Diamondback offered a legitimate, nondiscriminatory reason for Anderson’s termination. During her 90-day introductory period, Anderson twice tested positive for marijuana, an illegal drug, in violation of Diamondback’s drug and alcohol testing policy. Diamondback’s Employee Manual warned that “[a]n offer [of employment] [from] [Diamondback] is conditioned on the prospective employee’s testing negative for drugs and alcohol.” Anderson contended that positive tests cannot be offered as a legitimate, nondiscriminatory reason for her termination because the policy is itself discriminatory. We disagreed.

Diamondback was free to implement a drug testing policy that results in the termination of an individual taking what the unchallenged drug test results showed to be an illegal drug—marijuana—to treat a disability, if that policy doesn’t have, as a goal, the intentional exclusion of any individual taking a lawfully prescribed drug to treat a disability. We cannot require that Diamondback institute a drug testing policy that accounts for positive results caused by self-prescribed substances of unknown origin that register on a drug test as an illegal controlled substance. Therefore, we found that Anderson’s alleged “participation in unlawful conduct . . . as the cause for h[er] [termination]” “suffices to discharge [Diamondback’s] burden of proof at this stage and to meet [Anderson’s] prima facie case of discrimination.” McDonnell Douglas, 411 U.S. at 803. And because Anderson has “point[ed] to no evidence to show that [Diamondback]’s reason for firing her was a mere pretext,” Anderson, 661 F. Supp. 3d at 424, and has in fact conceded that it was not, we affirmed the district court’s determination that Diamondback is entitled to summary judgment on Anderson’s wrongful discharge claim.

We then turned to Anderson’s ADA failure-to-accommodate claim. Even assuming Anderson had established the other elements of a failure-to-accommodate claim, her claim still failed because she has not pointed to any evidence suggesting that she requested an accommodation.

Finally, Anderson’s state-law claim asserted that because her use of hemp-derived products was legal, her termination was unlawful under the North Carolina “lawful use of lawful products” statute. Anderson’s Section 95-28.2(b) claim failed for two reasons. First, she failed to show that the hemp-derived products she used were, in fact, legal. And second, Diamondback established, under Section 95-28.2(c)(1)’s exception, that its drug testing policy was related to a bona fide occupational requirement and reasonably related to its employment activities.

Affirmed.

Anderson v. Diamondback Investment Group LLC (Lawyers’ Weekly No. 001-085-24, 49 pp.) (Albert Diaz, J.) Appealed from the U.S. District Court for the Middle District of North Carolina at Greensboro (Loretta C. Biggs, J.) Argued: Wilson Frank Fong, Hensel Law, PLLC, Greensboro, North Carolina, for appellant; Natasha Marie Durkee, Geoffrey Alexander Marcus, Martineau King PLLC, Charlotte, North Carolina, for appellee; On Brief: Elizabeth A. Martineau, Martineau King PLLC, Charlotte, North Carolina, for appellee. U.S. Court of Appeals for the Fourth Circuit