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PITTSBURGH – A receptionist for a Pittsburgh trucking company fired for allegedly using medical marijuana on the job argues she was not aware that a warning she had received was a final one prior to her termination, and that she was discriminated against for her disability.
Christina Hesch of Leetsdale first filed suit in the Allegheny County Court of Common Pleas on June 14 versus Pitt Ohio Express, LLC, of Pittsburgh.
“The plaintiff was employed by the defendant from March 15, 2018 until Nov. 14, 2019, at which time the defendant terminated her employment. At the time of her termination, the plaintiff’s job title was Corporate Receptionist. The plaintiff’s duties as Corporate Receptionist included: answering calls, directing and sending emails and light computer work,” the suit stated.
“At all times relevant, the plaintiff performed the functions of her job competently and efficiently and was considered to be a satisfactory employee. The plaintiff was issued a medical marijuana card on July 7, 2019 for certain serious medical conditions treatable with medical marijuana. The plaintiff did not disclose the fact that she had been issued a medical marijuana card or that she used medical marijuana for treatment of her serious medical condition.”
Hesch stipulated she never went to work under the influence of medical marijuana and never brought medical marijuana to work.
“At the end of the day on Friday, Nov. 8, 2019, the plaintiff was getting ready to leave work for the weekend. She was going through her purse and decided to throw out some papers and other items into the trash can by her desk,” the suit said.
“Among the things that she threw away were packaging for her medical marijuana, namely a box labeled ‘remedi by Cresco yeltrah-Capsules-Relax-Indica’, and a receipt for the purchase from the dispensary. Significantly, the box was empty and she did not have any medical marijuana in her purse or otherwise on her person when she threw away the empty box.”
A human resources supervisor approached Hesch the following Monday and confronted over the empty medical marijuana box found in the wastebasket, which had been found by a security officer.
Hesch explained that the box was empty, she is permitted to use medical marijuana, she had never used marijuana or was ever under the influence at work and that she did not possess marijuana at work.
After writing a statement explaining the information above, Hesch also apologized. However, company officials told her that her action was unacceptable and that it violated company policy, since she was not allowed to bring drugs into the building, the suit said. Hesch responded by asking how it was a violation to throw away an empty box.
Neither of the company officials present responded to her question, only offering that they would review her statement and Hesch was suspended until further notice, while they determined how to take further action, the suit said.
“On Thursday, Nov. 14, 2019, Maguire called the plaintiff and told her that she had violated company policy and that her employment was being terminated. The plaintiff again said that she had not done any drugs at work, had never been under the influence while at work and had not brought any medical marijuana into the workplace; all she did was throw away an empty box. Maguire said that she had violated company policy without providing any additional details,” the suit stated.
Counsel for the company filed an answer with new matter on July 16, featuring a different version of events than that told by the plaintiff. In contrast, the defendants claim the plaintiff was not a satisfactory employee and was disciplined several times for inappropriate behavior, afternoon drowsiness, tardiness and attendance issues, taking personal calls on work time and discord with her co-workers. That resulted in a final warning issued on Sept. 24, 2019.
Pitt Ohio argued it believed Hesch was using marijuana on the job, but added it didn’t find proof until the discovery of the empty box in the garbage can on Nov. 8, 2019. In new matter, the defendant asserted other affirmative defenses.
“Plaintiff’s complaint fails to state a claim upon which relief can be granted. Plaintiff’s claims are barred by the doctrines of waiver, estoppel, laches and/or the statute of limitations and/or repose. Plaintiff was an at-will employee with Pitt Ohio and was lawfully terminated for violation of company policy and for poor judgment, at a time when plaintiff was on a final written warning,” the answer read.
“Pitt Ohio’s company policy is consistent with federal and Pennsylvania law, even if plaintiff is legally permitted to use marijuana for medical reasons while off duty under Pennsylvania law. Plaintiff, filly aware of Pitt Ohio’s drug policy, chose to use her medical marijuana during work hours and on Pitt Ohio property in violation of the policy. Pitt Ohio had a reasonable belief that plaintiff was under the influence of marijuana during work hours. Plaintiff was on a final written warning when Pitt Ohio terminated her employment.”
The defendant also claimed the plaintiff’s counts are barred in whole or in part because the Pennsylvania Medical Marijuana Act does not authorize a private cause of action for an individual to pursue a civil action against an employer.
UPDATE
On Sept. 4, counsel for Hesch argued she didn’t know her warning was a final one.
“It is admitted that the plaintiff had received a written warning, but the plaintiff does not recall whether it was a ‘final written warning’. The allegations in this paragraph refer to a document, which is a writing that speaks for itself. To the extent that the characterization of what was in the written warning is different than the writing, the allegations are denied,” the reply stated.
“By way of further response, the plaintiff is not in possession of the written warning so she is without information and knowledge sufficient to form a belief as to whether the defendant has accurately paraphrased it in this paragraph and, accordingly, all such allegations are denied with strict proof thereof demanded at trial.”
For a count of discrimination and retaliation under the Pennsylvania Medical Marijuana Act, the plaintiff is seeking damages in excess of $50,000 and all appropriate remedies under the MMA, including attorney’s fees and costs.
The plaintiff is represented by Michael J. Bruzzese in Pittsburgh.
The defendant is represented by James F. Glunt and Chalyn M. Kaufman of Reed Smith, also in Pittsburgh.
Allegheny County Court of Common Pleas case GD-20-006785
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com