Whitmire v. Wal-Mart Stores Inc.

359 F.Supp.3d 761

Carol M. WHITMIRE, Plaintiff,

v.WAL-MART STORES INCORPORATED, Defendant.

No. CV-17-08108-PCT-JAT

United States District Court, D. Arizona.

Signed February 7, 2019

Joshua William Carden, Joshua Carden Law Firm PC, Scottsdale, AZ, for Plaintiff.

Steven Gregory Biddle, Stanley Ray Foreman, Jr., Littler Mendelson PC, Phoenix, AZ, for Defendant.

Oramel Horace Skinner, Office of the Attorney General, Phoenix, AZ, for Amicus State of Arizona.

ORDER

James A. Teilborg, Senior United States District Judge

Pending before the Court is Defendant Wal-Mart Stores, Inc.'s ("Defendant") Motion for Summary Judgment (Doc. 32) and Plaintiff Carol M. Whitmire's ("Plaintiff") Rule 56(d) Application (Doc. 35 at 11–13). For the reasons set forth below, Plaintiff's Rule 56(d) Application is denied, and Defendant's Motion for Summary Judgment is granted in part and denied in part.

I. BACKGROUND

On or about February 20, 2008, Defendant hired Plaintiff Carol M. Whitmire ("Plaintiff") as a Cashier in its Show Low, Arizona store. (Docs. 36 ¶ 1; 33-1 at 11–12, Whitmire Depo. at 35: 22-36:3, 38:1-13). During her new-hire orientation, Plaintiff received training on Defendant's Alcohol and Drug Abuse Policy, as well as its Discrimination and Harassment Prevention Policy. (Docs. 33 ¶ 2; 36 ¶ 2). Plaintiff also acknowledged and signed Walmart's Alcohol and Drug Abuse Policy, indicating her understanding that if "testing indicates the presence of illegal drugs ... in [her] body in any detectable amount, [she] w[ould] be terminated." (Docs. 33 ¶ 5; 33-3 at 9; 36 ¶ 5). Plaintiff further acknowledged the drug testing policies and procedures described in this Alcohol and Drug Abuse Policy, "and the use by Wal-Mart of results thereof in further determining [her] continued employment." (Doc. 33-3 at 9).

In December 2013, after working as a Cashier for approximately four years, Plaintiff was promoted to the position of Customer Service Supervisor. (Docs. 33 ¶ 8; 36 ¶ 8). On December 19, 2013, Plaintiff acknowledged that she had the ability to perform the essential functions of this Customer Service Supervisor position either with or without a reasonable accommodation. (Docs. 33 ¶ 9; 33-3 at 25–27; 36 ¶ 9). These essential functions include "maintaining a safe shopping environment," "ensuring a safe work environment," "[o]perat[ing] equipment, such as cash registers and related tools, to process Customer purchases," handling money, and "[s]upervis[ing] Associates." (Docs. 33 ¶ 10; 33-3 at 25; 36 ¶ 10).

In or about the end of 2013 or beginning of 2014, Plaintiff obtained an Arizona medical marijuana card, which she maintained during her employ at Walmart. (Docs. 33 ¶¶ 12–13; 36 ¶¶ 12–13). Plaintiff claims she smokes medical marijuana just before bed as a sleep aid and to help treat the chronic pain she suffers due to arthritis and a prior shoulder surgery. (Doc. 36 ¶¶ 34–36, 39–40). Plaintiff also asserts that she has never brought marijuana to work or used or been impaired by it during her hours of employment. (Doc. 36 ¶ 38).

In January 2016, Defendant modified its Alcohol and Drug Abuse Policy to expressly state that employees are prohibited from "[r]eporting to work under the influence of drugs or alcohol, including medical marijuana." (Docs. 33-3 at 12; 36 ¶ 2). Defendant's amended Alcohol and Drug Abuse Policy also requires employees to submit to a drug or alcohol test if they suffer a workplace injury "that requires medical treatment from an outside health care provider." (Doc. 33-3 at 14).

In March 2016, Plaintiff transferred to Defendant's Taylor, Arizona store. (Docs. 36 ¶ 1; 33-1 at 11–12, Whitmire Depo. at 35: 22-36:3, 38:1-13). While working on May 21, 2016 in the Taylor store, a bag of ice fell on Plaintiff's wrist as she was leveling the bags in the ice machine. (Docs. 33 ¶ 16; 36 ¶ 16). Plaintiff reported this incident to Management and filed an Associate Incident Report with Defendant that same day. (Docs. 33 ¶ 16; 36 ¶ 16; 36-1 at 12, 32). However, Plaintiff finished her shift and did not seek any medical attention on May 21, 2016 because she did not feel the incident was serious enough. (Docs. 33 ¶ 17; 36 ¶ 17; 36-1 ¶ 15). Defendant's Associate Accident Review Form indicates that Defendant did not find Plaintiff responsible for the incident. (Doc. 36-1 at 32 ("Not conclusive that the associate did not follow safe work practices[.] ... This could have just as easily happened to a customer.") ).

On May 23, 2016, Plaintiff notified Human Resources of continued swelling and pain in her wrist. (Docs. 33 ¶ 18; 36 ¶ 18). Just before 2:00 a.m. on May 24, 2016, Plaintiff smoked medical marijuana prior to going to sleep. (Docs. 33 ¶ 19; 36 ¶ 19; 36-1 ¶ 18). Later that same day (May 24, 2016), Plaintiff clocked in to her scheduled shift at 2:00 p.m., and told Personnel Coordinator Debra Vaughn that her wrist still hurt. (Docs. 33 ¶¶ 20–21; 36 ¶¶ 20–21). Pursuant to Walmart policy, Ms. Vaughn directed Plaintiff to an urgent care clinic for a wrist examination and post-accident urine drug test. (Docs. 33 ¶ 21; 36 ¶ 21). Except for this visit to the urgent care clinic on May 24, 2016, Plaintiff never missed any time at work as a result of her wrist injury. (Docs. 33 ¶ 31; 36 ¶ 31).

At the urgent care clinic, Plaintiff's arm was x-rayed, and she submitted a urine sample for the drug test. (Docs. 33 ¶ 22; 36 ¶ 22). Following this drug screen, Plaintiff claims that she returned to work and informed Ms. Vaughn that the clinic had not taken a copy of her medical marijuana card, even after Plaintiff informed the clinic of her medical marijuana usage and cardholder status. (Doc. 36 ¶¶ 43–44). At this time, Plaintiff asserts that Ms. Vaughn took a copy of the medical marijuana card. (Doc. 36 ¶ 44). This was the first time that Plaintiff informed anyone at Walmart that she had a medical marijuana card. (Docs. 33 ¶ 14; 36 ¶¶ 14, 45). Plaintiff also never informed anyone at Walmart that she had a disability. (Docs. 33 ¶ 15; 36 ¶ 15).

Plaintiff's May 24, 2016 drug screen tested positive for marijuana metabolites at a quantitative value of greater than 1000 ng/ml. (Doc. 33-3 at 33).¹ In a signed declaration, Ms. Vaughn stated that, "upon reasonable belief, Plaintiff's May 24, 2016 positive test result for marijuana indicated that she was impaired by marijuana during her shift that same day." (Doc. 33-3 at 23, Vaughn Decl. ¶ 14).² On May 31, 2016 (prior to the test result being reported to Defendant), Plaintiff had a follow-up interview with a Medical Review Officer to discuss her positive drug screen, at which Plaintiff told the Medical Review Officer that she had an Arizona-issued medical marijuana card. (Docs. 36 ¶ 46; 36-1 at 26). The Medical Review Officer verified Plaintiff's medical marijuana card that same day. (Doc. 36-1 at 26).

In June, Plaintiff received a letter dated June 7, 2016 from the Industrial Commission of Arizona alerting Plaintiff that her employer's insurance carrier had been notified of her workers' compensation claim. (Doc. 36-1 at 10). That same month, Plaintiff received two Notices of Claim Status from the Industrial Commission of Arizona regarding her workers' compensation claim, both of which were dated June 22, 2016. (Id. at 14, 16). One of these letters indicated that Plaintiff's claim was accepted, but that no compensation would be paid. (Id. at 14). The other letter stated that Plaintiff's injury had not resulted in permanent disability, and indicated that temporary compensation and active medical treatment terminated on May 24, 2016 because "claimant was discharged." (Id. at 16).

Following the injury-causing incident on May 21, 2016, Plaintiff continued working full-time until she was suspended due to her positive drug test on July 4, 2016. (Doc. 36 ¶¶ 25, 49). On July 22, 2016 Defendant terminated Plaintiff, only citing her positive drug test as the reason for her termination. (Docs. 33 ¶ 26; 33-3 at 35; 36 ¶ 26). Plaintiff admits that she has no evidence that Defendant terminated her because of her status as a medical marijuana cardholder. (Docs. 33 ¶ 33; 36 ¶ 33). Aside from her termination, Plaintiff does not feel that Defendant discriminated against her in any way. (Docs. 33 ¶ 28; 36 ¶ 28).

On March 22, 2017, Plaintiff dual-filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") and the Arizona Attorney General's Office, Civil Rights Division. (Docs. 36 ¶ 73; 36-1 at 22). After receiving her Notice of Right to Sue from the Arizona Attorney General's Office on June 6, 2017, (Docs. 36 ¶ 74; 36-1 at 24), Plaintiff filed her Complaint on June 9, 2017, (Doc. 1). Plaintiff's Complaint alleges that she was wrongfully terminated and/or discriminated against in violation of the Arizona Medical Marijuana Act ("AMMA"), A.R.S. § 36-2813(B), the Arizona Civil Rights Act ("ACRA"), A.R.S. § 41-1463(B), the Arizona Employment Protection Act ("AEPA"), A.R.S. § 23-1501(A)(3)(b), and the Arizona workers' compensation statutes, A.R.S. §§ 23-901, et seq . (Doc. 1 at 1, 4–6).³ Defendant filed an Answer on August 11, 2017 denying that it wrongfully terminated, discriminated against, or engaged in any conduct toward Plaintiff creating liability. (Doc. 6 at 1). In its Answer, Defendant also alleged as an affirmative defense that it "has established a policy and implemented a drug testing program in compliance with Arizona law, so its actions toward Plaintiff are protected from litigation under A.R.S. § 23-493.06," Arizona's Drug Testing of Employees Act ("DTEA"). (Id. at 9).

On February 5, 2018, Defendant responded to Plaintiff's First Set of Interrogatories, stating that "Defendant does not contend Plaintiff was employed in a safety-sensitive position as defined under Arizona law." (Docs. 15; 36-1 at 74–75). However, Defendant thereafter filed a Motion for Summary Judgment which argued, in part, that Plaintiff was in a safety sensitive position, (Doc. 20), and supplemented its interrogatory answer to say the same,...