License to Sell Pot No Aid to Outback Worker Fired in Drug Probe

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By Kevin McGowan

An Outback Steakhouse employee and medical marijuana caregiver fired for allegedly selling the drug at work has no age-bias claim under Michigan law, a federal district court ruled ( Henry v. Outback Steakhouse of Fla., LLC , 2017 BL 125917, E.D. Mich., No. 15-10755, 4/18/17 ).

Medical marijuana is legal in Michigan, and Bobbie Henry, who worked as an Outback bartender and server for 17 years, is a licensed medical marijuana caregiver authorized to sell the drug to patients.

But Outback permissibly enforced a company policy barring the illegal use, sale or possession of controlled substances at work, the U.S. District Court for the Eastern District of Michigan said April 18.

The state medical marijuana act doesn’t override federal law that defines marijuana as a controlled substance and doesn’t “impose restrictions on private employers,” Judge Laurie J. Michelson wrote.

Eighteen states permit individuals to use marijuana for medical reasons, and eight states plus the District of Columbia have legalized its recreational use, according to a Congressional Research Service report. But federal law still classifies marijuana as a controlled substance subject to criminal penalties. That leaves employers in a quandary about how to treat employees licensed to use and sell marijuana in states that allow limited use.

Henry, who was 48 when terminated in 2014, can’t show Outback’s asserted reason for discharge was a pretext for age bias, the court said.

The restaurant also fired five employees younger than Henry for suspected drug activity at work, the court said.

Henry is “very strongly” considering an appeal to the U.S. Court of Appeals for the Sixth Circuit, said Loyst Fletcher Jr., a Flint, Mich., lawyer who represented her.

Attorneys representing Outback referred questions to the company. An Outback representative wasn’t immediately available for comment.

Named in Employer’s Probe

Managers at Outback’s location in Flint in November 2014 began investigating a number of employees, not including Henry, for suspected drug transactions in the restaurant and adjoining parking lot.

Based on their observations and discussion, the managers decided to fire four employees, but it first gave them the opportunity to explain their actions. At least one of those employees told management that Henry was selling drugs at work. The company conducted additional employee interviews, and two more employees alleged Henry was selling marijuana on restaurant premises, an Outback manager testified.

The managers decided Henry also should be fired. When they confronted her, Henry said she never sold drugs on Outback property. But she also told managers she has a medical marijuana card that authorizes her to use or sell limited amounts under Michigan law. After she was fired, Henry testified in a deposition she had given marijuana at work to Davonte Smith, a co-worker, because he was a patient to whom she was authorized to sell.

No Evidence of Age Bias

Henry can’t show that Outback’s asserted reason for firing her was a cover for age discrimination under Michigan’s Elliott-Larsen Civil Rights Act, the court said.

There’s no evidence that Outback’s managers didn’t honestly believe Henry was dealing drugs at work based on other employees’ accounts, the court said. The business judgment rule means the court won’t second-guess an employer’s disciplinary decisions even if the court might have reached a different conclusion, Michelson wrote.

Tom Pabst in Flint also represented Henry. Thompson Sizemore Gonzalez & Hearing PA and Kienbaum Opperwall Hardy & Pelton PLC represented Outback Steakhouse of Florida LLC and OSI Restaurant Partners LLC.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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