9th Circuit Rejects Claim that Drug Test was Retaliation

April 16, 2008 (PLANSPONSOR.com) - The 9th U.S. Circuit Court of Appeals has agreed with a lower court that found an employee who tested positive for drug use failed to prove race and disability discrimination by her employer.

A Jackson Lewis report on the ruling said that the court first determined that Rosetta Surrell’s failure to obtain a federal right-to-sue letter from the Equal Employment Opportunity Commission after obtaining one from the state barred her federal claims under Title VII of the Civil Rights Act. The court then determined that Surrell failed to prove that the employer’s reasons for not promoting her or providing her with certain training were pretextual.

The court also rejected Surrell’s claim that her employer drug tested her in retaliation for her complaint to an employees’ union about the denial of training. The employer offered legitimate reasons for the drug testing, according to the opinion.

After taking medical leave for one year following a car accident that resulted in back injuries, Rosetta Surrell felt she was unfairly denied a promotion that was given to a younger, white female and also unfairly denied the opportunity to cross-train for another position. Surrell filed a complaint with her union which was denied by the employer, and the complaint was dropped.

After noticing that Surrell was impaired and slurring her speech at work, the company ordered her to take a drug test in which she tested positive for prescription drugs and marijuana use. She was given the option to quit work or enter a drug rehab and chose the rehabilitation.

In a subsequent year, after returned to work following the death of her son, Surrell again seemed impaired, and a drug test came back positive for prescription drugs. Surrell was put on a 10-month paid suspension and afterwards was put on unpaid leave.

The opinion in Surrell v. California Water Serv. Co. is here .