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About The Author
Danielle M. Kays is an attorney in the Labor & Employment Department of Seyfarth Shaw LLP. Ms. Kays advises and represents employers in a broad range of employment law matters arising under federal and state laws. She is experienced in litigating federal and state court cases involving the defense of employment discrimination claims, wrongful discharge, and retaliation matters. She also is experienced in complex commercial litigation in a wide variety of practice areas, including financial services, consumer finance, franchise-dealer, real estate, intellectual property, and class actions.
Ms. Kays has extensive trial experience and has obtained more than 25 successful verdicts for her clients. She has years of experience handling motions to dismiss, motions for summary judgment, preliminary injunctions, pre-trial hearings, and settlement negotiations in federal and state courts. In addition to her extensive litigation practice, Ms. Kays has represented clients at many arbitrations and mediations.
Ms. Kays has been named an Illinois Super Lawyers® Rising Star each year since 2010. She teaches trial advocacy for the Notre Dame Law School and has coached trial team for Chicago-Kent Law School. During law school, Ms. Kays was an editor of The Elder Law Journal, a trial team and moot court competitor, and a recipient of the Rickert Award for Excellence in Legal Publications.
An Arizona federal district court judge entered judgment against Walmart Inc. for terminating the employment of a woman who had been prescribed medical marijuana because it had not established through expert evidence that the employee was impaired by marijuana at work despite high levels of marijuana in the results of her drug test. Therefore, the court held plaintiff’s termination was contrary to the Arizona Medical Marijuana Act, A.R.S. § 36-2813(B) (“AMMA”).
In Whitmire v. Walmart Inc., the plaintiff Carol Whitmire had worked at Walmart since 2008, initially as a Cashier and thereafter as a Customer Service Supervisor. During her employment Walmart had a drug testing policy which expressly stated that employees were prohibited from “[r]eporting to work under the influence of drugs or alcohol, including medical marijuana.” Walmart’s policy also required employees to submit to a drug or alcohol test if they suffered a workplace injury that required medical treatment. Plaintiff was aware of Walmart’s drug testing policy and acknowledged her understanding of the policy.
On May 21, 2016, plaintiff reported to Walmart that a bag of ice fell on her wrist while at work, and two days later, she notified Walmart that she experienced continued swelling and pain in her wrist. On May 24, 2018, around approximately 2 a.m., plaintiff smoked medical marijuana for an alleged non-work related condition prior to going to sleep. Later that same day at 2 p.m., plaintiff began her scheduled shift at Walmart and reported to human resources that her wrist still hurt. Plaintiff left her shift because Walmart directed plaintiff to urgent care pursuant to its policy. Plaintiff received an x-ray of her arm, submitted a urine sample for a post-accident drug test, and then returned to work. After returning to work, plaintiff advised Walmart for the first time that she possessed a medical marijuana card and provided a copy.
Plaintiff’s drug screen tested positive for marijuana metabolites, and Walmart concluded that upon reasonable belief, the high levels of marijuana metabolites recorded in her positive test indicated that she was impaired by marijuana during her shift earlier that same day. Walmart suspended and eventually terminated plaintiff citing the positive drug test as the reason.
Plaintiff filed a lawsuit in the United States District Court for the District of Arizona asserting that she was terminated and discriminated against in violation of the AMMA and other state laws. Walmart denied that it wrongfully terminated or discriminated against plaintiff and asserted an affirmative defense that it had “established a policy and implemented a drug testing program” in compliance with the Arizona Drug Testing of Employees Act, A.R.S. § 23-493.06 (“DTEA”).
Walmart moved for summary judgment, arguing, among other arguments, that the AMMA did not provide plaintiff with a private cause of action against Walmart. Additionally, Walmart argued that it was entitled to judgment as a matter of law because it terminated plaintiff based on the results of a drug test taken during her shift, which showed that plaintiff had marijuana metabolites at the highest level the test could record, and which gave Walmart a good faith basis to belief plaintiff was impaired by marijuana during her work shift. The State of Arizona filed an appearance and an amicus curiae brief.
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