Phaedra Haywood, The Santa Fe New Mexican –
A Santa Fe woman says she is preparing to sue the New Mexico State Personnel Office because she was fired from her job there after testing positive for marijuana use — even though she is enrolled in the state Health Department’s medical cannabis program.
The woman’s attorney said he’ll file a complaint claiming discrimination based on medical condition and seek compensatory damages for his client, who was fired in January from her job as a compensation and benefits analyst at the State Personnel Office, where she had worked since 2007.
The woman, who is 29, says she also wants the state to revise its rules to protect the rights of medical marijuana patients.
“We have these rights for a reason, and it’s up to us to grab onto them and hold our state accountable,” said the woman, who spoke to The New Mexican on the condition that her name not be used.
The woman said she was diagnosed with post-traumatic stress disorder at the age of 16 after suffering from childhood trauma and domestic abuse. Doctors have prescribed her antidepressants and anti-anxiety medications on and off since then, she said.
She said she was doing well when she began working for the state, but stress at work and home prompted a return of her symptoms. She had a conflict with her supervisor, she said, and was then diagnosed with postpartum depression after the birth of her second child.
The woman sought treatment, she said, but she was concerned about side effects from psychiatric medications she had tried to use in the past.
Her doctor suggested she try medical marijuana, she said, so she obtained her state medical marijuana card in May 2011. The woman said she discussed her enrollment in the program with her direct supervisor and with State Personnel Office Director Gene Moser because she wanted to make sure that her participation in the program would not put her job at risk.
“They told me my job was not protected,” the woman said. She said her bosses indicated that although medical cannabis use is sanctioned in New Mexico by legislation passed in 2007, the rules of the State Personnel Office have not been updated, and she should seek other treatments.
The woman said she was advised at one point to seek a “faith-based” alternative. But, she said, after a disastrous attempt to quit using marijuana (which left her crying at work), she followed her doctor’s advice to continue the medical cannabis program. The woman said she never used marijuana at work or before work.
Still, she said, Moser instructed her supervisor to “check my eyes and check me for impairment every day. Every time my eyes were red, I was reported. And during those days, I was crying a lot. I would just sit in my car and cry. I was getting a lot of pressure at work. … It was making it very hard for me to do my job.”
In November 2011, the woman said, her supervisor said her eyes were glassy, that she seemed unusually relaxed and that she was sitting suspiciously close to her monitor. She was asked to take a drug test, and after she tested positive for cannabis use, she was put on administrative leave. A few months later, she was fired, she said, for having failed the drug test.
She has since filed for unemployment and is receiving benefits, although she will have to repay the money if the state’s challenge of her right to receive unemployment benefits is successful.
The woman’s attorney, Justin Pennington, said he plans to file a discrimination complaint against the State Personnel Office in the next week or so.
“When the case first came in, I looked at it and said, ‘This is lawyer’s playground,’ ” Pennington said Wednesday. “The rules are unwritten; there are conflicts between state and federal law. Regulatory law supports her, statute supports her, federal law doesn’t. But those folks up in Washington [D.C.] have known for a long time that the state of New Mexico and others are managing a medical marijuana program, and they haven’t done anything to shut them down. They are shutting down the junkie on the corner, but not the program, and it tells me that they are not considering it contrary to public health.”
Pennington added, “[Her employer’s] rationale is that they need to terminate her because her use of medical marijuana is impairing her. But her doctors are telling her that she’s not impaired by that use, that it is making her a functional worker, that it enables her ability to work. There is a real logical disconnect.”
Katie Thwaits, general counsel for the State Personnel Office, said state law prohibits the agency from commenting on the case because it is a personnel matter.