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No FMLA Unlawful Interference or Retaliation Claim Existed When Employee Failed Multiple Drug Tests (Including Using a Masking Agent)


Carle v. Red Threat Spaces, LLC - United States District Court, District of Connecticut


Facts:  Robert Carle ("Carle") worked as an installation foreman for Red Thread Spaces, LLC ("Red").  Given his position, he was prohibited from using marijuana by Red's Anti-Drug and Alcohol Misuse Policy and was subject to random urinalysis drug testing.  Under Red's policy, an employee that tested positive for drug use or alcohol misuse would be immediately suspended without pay and evaluated by a Substance Abuse Professional.  The Substance Abuse Professional would then recommend a course of substance abuse treatment fort the employee.  If the employee completed that treatment, they would be eligible for ultimately returning to their position at Red.  However, if an employee refuses to take a required drug test, they will subject to possible termination.

Carle, who used marijuana on an almost daily basis, was subjected to a random drug test on November 6, 2013, which he failed.  Red immediately issued him a written advisory saying he was suspended without pay and could not return to work until he yielded a negative drug test.  (Red apparently gave Carle paperwork that "FMLA has been approved" although Carle had not asked for FMLA leave.)  Thereafter, the substance abuse professional who saw Carle said no substance abuse treatment or education was needed and Carle was eligible to return to work (after submitting a negative drug test.)  After Carle failed a December 12 drug test, he was informed he would be required to take another drug test on December 18.  Carle took a product that was designed to assist him in passing the third drug test.  After the laboratory informed Red's Vice President of Human Resources that it could not test the specimen on the grounds that Carle had done something to mask the results, Carle was instructed  to submit to another drug test.  Carle did not show up for the drug test and was subsequently terminated.

Carle filed suit and alleged that Red violated the Family Medical Leave Act ("FMLA") because his termination constituted unlawful interference and retaliation with his right to take FMLA leave.  Red subsequently moved for summary judgment.

Holding:  The Second Circuit has held that for a plaintiff to prevail on an FMLA interference claim, he must establish 1) he is an eligible employee under the FMLA; 2) defendant is a covered employer; 3) he was entitled to take FMLA leave; 4) he gave notice to defendant of his intention to take leave; and 5) he was denied benefits he was entitled to under the FMLA.  (In this case, prongs 3, 4, and 5 were in dispute.)

The District Court held that Carle's substance abuse problem did not qualify as a "serious health condition" under the FMLA.  (To meet that standard, Carle had to show more than just the presence of marijuana in his system.  Carle was required to establish that he received treatment for substance abuse, which he failed to establish.)  As a result, Carle was not unable to work under the meaning of the FMLA because his inability to work was not caused by substance abuse problems, but by his forced suspension under Red's drug policy for failing to provide a negative drug test.

As for Carle's argument that he met the requirement of undergoing a "regimen of continuing treatment", the Court was not convinced.  Carle was evaluated once by a substance abuse counselor and took several urinalysis tests.  Beyond that, there was little evidence of a regimen of continuing treatment such that the Court held it was a stretch to consider this course of conduct as "treatment".

It subsequently followed that if no interference claim existed (as Carle was not entitled to FMLA leave), no retaliation claim existed either.

Judgment:  The District Court granted summary judgment in favor of the employer on the grounds that the employee, who had been terminated for failing provide a negative drug test (after failing on several attempts and using a masking agent in one instance), could not establish he was entitled to FMLA leave and therefore had no valid FMLA unlawful interference or retaliation claim.

The Takeaway:  Interesting case, huh?  I do not necessarily fault the employee for thinking he had a possible FMLA claim against his employer.  (As the Court noted, Carle had been given a document stating FMLA leave had been approved...although curiously Carle had apparently never requested it.)  With that being said, as the Court set forth in its opinion, Carle was not entitled to FMLA leave based upon the facts in the record.  As a result of Carle not being able to establish all five factors to prevail on his FMLA interference claim, the Court got it right with the ultimate conclusion that no FMLA interference claim existed.  Consequently, since no FMLA interference claim existed (and Carle could not establish he was entitled to FMLA leave), his retaliation claim similarly failed to survive Red's motion for summary judgment.

Majority Opinion Judge:  Judge Meyer

Date:  September 11, 2017

Opinion:  http://hr.cch.com/eld/CarleRedThread091117.pdf

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