Archive for November, 2011

November 8, 2011

Neb. Court of Appeals upholds just cause for terminating mental hospital worker who smoked pot before shift

The Nebraska Court of Appeals upheld a finding that the state of Nebraska had just cause  for firing  a mental health worker who worked in a locked ward with sex offenders who admitted to smoking marijuana before his shift.

Facts:

A member of the Nebraska State Patrol smelled freshly smoked marijuana on the plaintiff and reported this to plaintiff’s supervisor at the Lincoln Regional Center. Defendant’s testified and plaintiff confirmed that he admitted to smoking marijuana about 2 1/2 hours before his shift. Plaintiff refused to take a drug test because he stated it was unnecessary because he admitted to smoking marijuana. Plaintiff was suspended and then terminated for breaking rules related to him smoking marijuana and refusing a drug test. Plaintiff had never been disciplined in 28 years of service at LRC, but had received less than favorable performance reviews because of attendance issues. Two co-workers testified to plaintiff’s good performance and his professionalism. However plaintiff admitted that he needed to model positive behavior for patients and that smelling of marijuana was not a positive behavior — especially for patients who suffered from addiction problems.  Plaintiff also admitted that drug use impaired awareness and that awareness was important in his locked ward because of the potential danger presented by the patients. The case wound its way through the administrative appeals process up to the District Court where the District Court found the State of Nebraska had good cause to terminate plaintiff. Plaintiff argued that the discipline was too harsh and appealed.

Law

Nebraska law defines just cause  as what “a reasonable employer, acting in good faith, would regard as good and sufficient reason for terminating the services of an employee as distinguished from an arbitrary whim or caprices. Ahmann v. Nebraska Dept. of Corr.  Servs., 278 Neb. 29, 767 N.W. 2d 104 (2009) The plaintiff based his argument off of a term in the collective bargaining agreement stating the employer would use progressive discipline in terminating plaintiff. However this use of progressive discipline was premised on the severity of the infraction along with the history of discipline and history in the file.  The court found that smelling off and being under the influence of marijuana in a locked psych ward was severe enough to skip progressive discipline. The court cited the case of Nebraska Dept. of Correctional Servs. v. Hansen, 238 Neb 233, 470 N.W. 170 (1991) for the proposition that the severity of discipline is imposed on the risk caused by the infraction rather than the harm caused by infraction. In Hansen a prison guard was immediately terminated because he fell asleep on duty while alone at a penitentiary. The court found Petersen’s case more like the Hansen case that it did the Ahmann case that Petersen relied upon. In Ahmann a clerical worker at a prison was re-instated after being fired for failing a drug test. The court distinguished Ahmann from Petersen because Ahmann was not in direct contact with the prisoners and was not found to be under the influence of drugs at work as was Petersen.

Just cause for termination is common to most union contracts and gives unionized employees more protection than the at-will employees. For example the plaintiff in Ahmann would have had no grounds to challenge his termination under at-will employment.  However under a just cause standard Ahmann was re-instated. However a just cause standard is not a license for unionized employees to disregard common sense in the workplace.