Connecticut Court Sidesteps Firefighter Medical Marijuana Challenge

The Superior Court of Connecticut in Waterbury handed down a decision earlier this month that raised four important questions: Can a fire department discipline a firefighter who tests positive for marijuana if the member is legally authorized to use medical marijuana? Are last chance agreements of over one year enforceable? Does a last chance agreement supersede a collective bargaining agreement that permits grievances of terminations? Does an employer who seeks an injunction to avoid arbitration automatically lose because the employer necessarily has failed to exhaust administrative remedies (namely, failed to let the matter be arbitrated)?

Unfortunately for those interested in the answers, the court disposed of the case on a relatively mundane jurisdictional issue, leaving those difficult questions to an arbitrator. The case involved Waterbury firefighter Thomas Eccleston. As explained in the decision:

• Eccleston was arrested and charged with third degree assault and breach of the peace in the second degree, which caused the plaintiff to place Eccleston on paid administrative leave pending the completion of an investigation.
• On October 8, 2015, Eccleston was advised of his Garrity rights and participated in an interview.
• On November 19, 2015, Eccleston and the president of the Union, signed a “Last Chance Agreement.”
• The last chance agreement states, in relevant part, that “Eccleston shall be subject to mandatory random testing . . . for the purpose of discovering drug or alcohol use.”
• The last chance agreement further states, in relevant part: “Eccleston is subject to immediate termination upon” if he tests positive for a controlled substance or violates any of the plaintiff’s policies or engages in any misconduct.
• The last chance agreement placed Eccleston on a probationary period, but after twenty-four months from the effective date of the contract, Eccleston “may request the City remove him from the probationary status . . .”
• On March 20, 2018, Eccleston was subjected to random drug testing and on March 27, 2018, was confirmed positive for marijuana use.
• On March 28, 2018, Eccleston was placed on unpaid administrative leave and, in an interview with Adam Rinko, admitted he used marijuana pursuant to a medical marijuana card.
• Eccleston admitted in two separate interviews that he used marijuana, pursuant to a medical marijuana card, but nevertheless violated Article XXX “Substance abuse testing” of the collective bargaining agreement (CBA) between the Union and the plaintiff by testing positive for marijuana.

When the City of Waterbury terminated Eccleston, the union filed a grievance under the collective bargaining agreement. That prompted the city to file suit naming Eccleston, the Waterbury Fire Fighters Association, Local 1339, and the State Board of Mediation and Arbitration, seeking to block the grievance from being heard. The city asked “the court to issue a declaratory judgment holding that the defendants have no right in the grievance arbitration process under the CBA.”

In the court’s own words:

• “[A]s soon as the jurisdiction of the court to decide an issue is called into question, all other action in the case must come to a halt until such a determination is made.”
• The plaintiff … moved for a temporary injunction that would preclude the defendants from arbitrating any issue related to Eccleston’s termination because the defendants have, according to the plaintiff, “waived the right” to arbitrate issues related to Eccleston’s termination.
• Nevertheless, the plaintiff contends that it is an uncontested fact that Eccleston used marijuana, which is a controlled substance under federal law and violates the plaintiff’s policy against the use of a controlled substance.
• While the plaintiff may be reluctant to arbitrate the issues of what underlying conduct Eccleston engaged in and whether such conduct satisfied one of the four conditions outlined in the last chance agreement, the court can say with positive assurance that a fair construction of the last chance agreement indicates that the plaintiff specifically agreed to arbitrate these matters.
• If the plaintiff is correct that Eccleston’s alleged use of medical marijuana amounted to the use of a controlled substance under the relevant laws or violated the plaintiff’s policies then it should have no difficulty establishing such in the proper forum.
• Additionally, the plaintiff argues that it will suffer irreparable harm if it is forced to attend arbitration to determine the underlying facts because proceeding with arbitration and litigating the underlying facts is time consuming and costly.
• The plaintiff has produced no evidence of irreparable harm.
• Without any support, the plaintiff has failed to demonstrate it will suffer irreparable harm should the present case be dismissed.
• Accordingly, the plaintiff has failed to carry its burden of proving that the court has subject matter jurisdiction.
• Based upon the above the action must be dismissed.

Here is a copy of the decision: City of Waterbury v. Eccleston_ 2018 Conn. Super. LEXIS