Lewis Brisbois Employment Law Team Secures Unanimous Defense Verdict in $15 Million Discrimination, Retaliation Matter

Los Angeles, Calif. (February 27, 2023) – Los Angeles and Orange County Partner John Barber, Los Angeles Partner Wesley Krueger, and Orange County Partner Natasha Covarrubias recently secured a unanimous defense verdict in a high exposure employment matter in favor of Lewis Brisbois’ client, a food products company. In this case, the plaintiff alleged that his employer failed to accommodate him and discriminated against him due to his chronic back pain. He sought over $15 million in economic and non-economic damages, as well as punitive damages.

Underlying Facts

In May 2018, Lewis Brisbois’ client worked with a third-party recruiting firm to recruit the plaintiff - a well-respected seafood executive located in Florida - for a new executive position. Since 2010, the company has required that all prospective new employees take and pass a drug test. However, the recruiter mistakenly failed to inform the plaintiff of this requirement until November 2018, approximately three weeks before the plaintiff’s start date, and after the plaintiff had already left his previous job. The plaintiff, who was regularly smoking marijuana at that time to address chronic back pain, told the recruiter that he could not take the drug test in November due to a variety of reasons, such as travel and home renovations. The recruiter agreed to postpone the test until the plaintiff arrived in California.

The plaintiff did not inform the company or the recruiter of his back pain or marijuana use. Instead, he applied for a Florida marijuana card and attempted to stop using. It was not until his first day of work in December 2018 that he informed his boss, the company’s CEO, that he used “medical marijuana” for his back pain and was going to fail the drug test. Then, the next day, the plaintiff informed the company that he had obtained a Florida medical marijuana card. The company temporarily suspended the drug test to determine whether it could still test the plaintiff after he started, and also whether the marijuana card required any exemption. One week after he began working for the company, the plaintiff took the drug test. Three days later, the company received the drug test results indicating that the plaintiff had tested positive for marijuana. The company terminated him the next day, consistent with its policy.

Litigation and Trial

Following his termination, the plaintiff filed suit against Lewis Brisbois’ client, alleging claims of disability discrimination, failure to accommodate, and retaliation. In support of these claims, the plaintiff emphasized that surprising him with a drug test after he accepted the position with the company and resigned from his former employment was unfair.

As the litigation unfolded, Mr. Krueger prepared and argued a motion for summary judgment, which the court granted in its entirety in May 2021. The plaintiff then appealed the ruling to the U.S. Court of Appeals for the Ninth Circuit. In June 2022, the Ninth Circuit reversed the lower court’s grant of summary judgment and Lewis Brisbois prepared its client for trial.

Mr. Barber, Mr. Krueger, and Ms. Covarrubias handled the trial, which resulted in a unanimous defense verdict. Following the trial, one of the jurors specifically commented on how well the members of Lewis Brisbois’ team worked together.

Mr. Barber serves as chair of Lewis Brisbois’ Labor & Employment Practice and is a member of the firm’s Management Committee. His practice is dedicated exclusively to representing and counseling employers in employment-related matters, including litigation, appeals, risk management, policy preparation, and training.

Mr. Kreuger is a member of Lewis Brisbois’ Labor & Employment Practice. He represents employers in all aspects of employment law, including single-plaintiff discrimination, harassment, wrongful termination, whistleblower retaliation, wage and hour, and governmental agency charges and investigations.

Ms. Covarrubias is a member of the Labor & Employment and General Liability Practices. Her employment practice focuses on the defense of employers in discrimination, harassment, retaliation, and wrongful termination claims.

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