Memphis Lieutenant Properly Terminated After Failing Second Drug Test

A Memphis lieutenant who was terminated for testing positive for marijuana a second time, has lost his appeal to be reinstated. The Tennessee Court of Appeals handed down its ruling yesterday in the case of Lt. Marlon Cooper.

Lt. Cooper first tested positive for marijuana in 2008. He was suspended for 360 hours, entered into an employee assistance program, and was given a second chance with a written notification that “Any further violations of this nature may result in your termination from the Division of Fire Services.”

On January 15, 2016, Lt. Cooper again tested positive for Marijuana. After a disciplinary hearing he was terminated on January 25, 2016. He appealed his termination to a civil service hearing officer and on to the full Civil Service Commission, claiming the department had a practice of giving those who test positive a second chance. Both the hearing officer and the Commission sustained the termination. Lt. Cooper then filed suit in Shelby County Chancery Court to overturn the Civil Service Commission.

As explained by the Court of Appeals, “the Chancery Court held in Mr. Cooper’s favor, finding that his constitutional due process rights had been violated, that the Civil Service Commission’s decision was unsupported by substantial and material evidence, and that the Commission’s decision was arbitrary and capricious.” The city appealed.

The Court of Appeals reversed the Chancery Court, ruling that the city was within its rights to fire Lt. Cooper. As explained by the court:

  • [T]he Chancery Court held that Mr. Cooper’s due process rights were violated when he was not given notice that a second substance abuse violation would preclude re-entry into the EAP program.
  • The fact that the City decided that Mr. Cooper, as a second offender, was ineligible for the EAP program does not mean that Mr. Cooper’s due process rights were violated.
  • The essential hallmarks of what due process requires are notice and an opportunity to respond.
  • The most fundamental element of due process is “the opportunity to be heard ‘at a meaningful time and in a meaningful manner.'” Mathews v. Eldridge
  • Here, there is no question that Mr. Cooper was given several warnings by the City regarding discipline under the substance abuse policy.
  • Mr. Cooper was warned incident to being afforded a second chance by the City in 2008.
  • With regard to the specific conduct at issue herein, Mr. Cooper was explicitly warned following the January 2016 drug screen that his termination could ensue depending on the outcome of the City’s investigation.
  • He was clearly given notice of the charges against him, and he was provided with a fair opportunity to respond.
  • We therefore respectfully disagree with the Chancery Court that a due process violation is implicated in this case.
  • We turn next to whether a proper foundation existed for the Civil Service Commission to sustain Mr. Cooper’s termination.
  • Here, there does not appear to be any legitimate dispute that termination is a valid disciplinary action stemming from a violation of the City’s substance abuse policy.
  • With that in mind, and given the fact that multiple charges against Mr. Cooper were readily established in this case, we are of the opinion that substantial and material evidence existed to support the Commission’s decision to uphold Mr. Cooper’s termination.
  • There being substantial and material evidence to support the Commission’s determination, we now turn to the Chancery Court’s specific conclusion that Mr. Cooper’s termination was “arbitrary and capricious.”
  • We respectfully disagree with the conclusion that terminating Mr. Cooper was an arbitrary action.
  • Mr. Cooper’s 2016 positive drug screen at work was a second offense, and we cannot say that the decision to terminate him was not based on any course of reasoning or exercise of judgment.
  • We, therefore, conclude that Mr. Cooper was afforded due process and that substantial and material evidence existed to support the Commission’s action.
  • Further, we hold that Mr. Cooper’s termination was neither arbitrary nor capricious.
  • Having reached these conclusions, it follows that the Chancery Court’s reversal of Mr. Cooper’s termination was in error, and the case is hereby remanded for the entry of an order reinstating the decision of the Commission.

Here is a copy of the decision:

While online today I came across a non-fire case that may be of interest to some as it touches on duty to act and the public duty rule with regard to city lifeguards. Apparently, a woman collapsed after exiting the pool. The lifeguards initially attended to her and got her comfortable. Later she collapsed in the women’s room. The life guards were summoned, they called 911, but apparently did not promptly initiate CPR. When the fire department arrived, the medics worked the code but victim did not survive.

The family sued for wrongful death alleging the lifeguards breached a duty to render aid. The issue was whether the lifeguards had a duty to render aid to her outside of the pool. The court concluded they did not. Interesting decision on the facts covering many of the liability concerns that can arise for firefighters as well. Here is that decision.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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