Former LCC employee fired for pot use sues for wrongful termination

Former LCC employee fired for pot use sues for wrongful termination

From the Las Vegas Optic

Luna Community College is facing a wrongful termination lawsuit filed by a former employee who alleges Luna violated his state constitutional rights by firing him for using medical cannabis.

At the center of the lawsuit is an employee’s right to use medical cannabis, and whether an employer can terminate someone for using cannabis while not at work.

In the complaint filed by Rock Ulibarri in District Court on May 28, Ulibarri admits to using medical cannabis for a “serious sleep deprivation disorder,” that causes him “debilitating fatigue and (the) inability to function in his daily activities.”

Ulibarri was asked in August 2020 to provide a urine sample as part of a random drug screening, an action allowed under Luna’s policies and procedures. In the suit, Ulibarri states that prior to the drug screening, he used a “small amount of THC,” the active ingredient of cannabis, “in soluble form” in order to help him sleep. He also said he notified officials at the school that THC was likely to show up in the screening.

The suit alleges that wording used in Luna’s policies and procedures indicates that employees are forbidden from being intoxicated while on the job, but not necessarily outside of work. It also notes that New Mexico prohibits civil penalties for use of medical cannabis. The suit points to New Mexico’s Lynn and Erin Compassionate Use Act — enacted in 2007 as part of legalizing medical cannabis. Portions of the act state civil penalties are not allowed, in certain circumstances, when an employee uses medical cannabis.

Also key to the argument is New Mexico’s statute 26-2B-9, added in 2019, which states: “It is unlawful to take an adverse employment action against an applicant or an employee based on conduct allowed under the Lynn and Erin Compassionate Use Act.”

The suit states that these laws allow an employer to prevent an employee from using cannabis while on the job, but do not allow employers to take adverse actions against employees who are not on the job at the time.

The suit also states that the name of the laboratory responsible for processing the drug screening was not provided to Ulibarri, and that the report provided by the laboratory did not identify the amount of psychoactive THC present within his system at the time the sample was taken. It further alleges that lab results do not show that Ulibarri was under the influence of THC while on the job, and therefore he was not in violation of Luna’s policies.

Luna and Ulibarri entered into a written employment contract in August of 2015 that made Ulibarri the adult education director, according to the complaint.

The suit was filed against Luna, through its Board of Trustees. Named as defendants in the suit are: Phyllis S. Martinez, Dianna Medrano, Louise Portillos, Mark Dominguez, Kenneth Medina, Maximiliano Tenorio Jr. and Gilbert Sena, and includes Human Resource Director Carolyn Chavez and former interim President Kenneth Patterson.

The lawsuit states that following the positive drug screen, Ulibarri submitted a plan as an alternative to termination, but says interim President Patterson refused to review the plan or discuss alternatives, and that instead, Patterson fired Ulibarri.

As a result, Ulibarri says Luna breached the terms of the employment agreement, causing him to suffer loss of income and benefits, and that he has suffered damage to his reputation that could cause him to lose future employment opportunities.

The suit seeks compensatory damages — a monetary award to be determined at trial — as well as punitive damages and attorneys’ fees. A trial date had not been set as of this writing.