March 21, 2017

March 21, 2017

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March 20, 2017

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Employee Suspected of Drug Diversion Could Not Establish “Regarded as Disabled” Claim

An appellate court recently affirmed summary judgment in favor of a hospital that terminated the employment of a nurse for diverting medications, rejecting her claim that she had been perceived to be a drug addict by her employer. Demastus v. University Health System, Inc., No. E2016-00375-COA-R3-CV (Tenn. Ct. of Appeals March 2, 2017).

Laura Lee Demastus worked as a nurse for University Health System, Inc. (the “Hospital”) for three years. The Hospital became suspicious that Demastus was illegally diverting medications, after its computer records revealed that she checked medications out, but failed to record that the medications were administered to any patient or were destroyed.  The Hospital’s Compliance Officer began an investigation and uncovered several examples of missing medications, including oxycodone and benzodiazepines.  Demastus met with the Compliance Officer, and her supervisor, to discuss the allegations, but she was unable to explain or defend any of the suspicious transactions.  She stated that she did not have a drug abuse problem and also agreed to submit to a drug test.  Before the results of the drug test were provided to the Hospital, Demastus was terminated for gross misconduct.

Demastus subsequently filed a lawsuit against the Hospital under the Tennessee Disabilities Act (“TDA”), alleging that she had been discriminated against because the Hospital perceived her to have a drug addiction when she did not, and that she was wrongfully terminated due to that perception. The Hospital denied that it viewed Demastus as disabled or that it perceived her as having a current drug addiction, and instead, the Hospital cited the outcome of the investigation and Demastus’ inability to explain the missing medications as the sole reason for her termination.

The Court rejected Demastus’ claim because the definition of “disability” under applicable Tennessee law specifically excludes “current, illegal use of, or addiction to, a controlled substance.” Demastus therefore could not establish a prima facie case under the TDA whether she was terminated due to an actual drug addiction or the Hospital’s belief that she currently was addicted to drugs.

Even if Demastus had been able to establish a prima facie case of discrimination based on a perceived disability, the Court held that the Hospital’s evidence that Demastus had illegally diverted medications was a legitimate, nondiscriminatory reason for her termination, and Demastus offered no evidence of pretext.  Thus, summary judgment for the Hospital was appropriate.

The takeaway for employers in a situation such as this is to focus on the employee’s misconduct (theft, in this case), rather than on any actual or perceived disability.

Jackson Lewis P.C. © 2017

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About this Author

Heather C. Panick, Jackson Lewis, Income Tax Lawyer, compensation arrangements Attorney
Associate

Heather C. Panick is an Associate in the Omaha, Nebraska, office of Jackson Lewis P.C.

Ms. Panick has an active ERISA and federal income tax practice involving the representation of clients in tax adversary proceedings before the Internal Revenue Service, United States Tax Court and Second Circuit Court of Appeals relating to payroll, trust fund recovery penalties, employee benefit plans and executive compensation arrangements.  Her practice also includes working with clients and the Internal Revenue Service, Department of Labor and PBGC in...

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