Drug user files discrimination suit, seeks $5.5 M from Army Depot

TEXARKANA -- Oklahoma resident Eric Payne says THC found in his system was by prescription, and therefore he was wrongfully terminated as an illegal drug user by the Red River Army Depot.

Acting as his own attorney, Payne is suing Red River for handicap discrimination, harassment, slander and wrongful termination. He wants "illegal drug use" removed from his personnel file and $5.5 million in damages. The suit was filed Oct. 25 in the Texarkana Division of the Eastern District of Texas.

Employed as a firefighter and EMT by Red River Army Depot (RRAD) since July 2001, Payne was diagnosed with anxiety disorder in March 2006, causing him to seek a two-week leave of absence. Prior to the approval to his leave, Payne was told he would be working at a different fire station. Payne believes this transfer was a result of his anxiety disorder diagnosis and thus, is claiming handicap discrimination.

When Payne returned to work, the Depot's Acute Care Doctor evaluated him for more than two hours. Court documents say Payne appearded nervous, unsteady and emotionally overcome. He told the doctor he was taking Wellbutrin, Xanax and Marinol for treatment of his anxiety disorder.The doctor noted that Payne "seems to be reacting to a perceived threat of losing his job due to some alleged false allegation."

Marinol is a prescription drug that contains a synthetic form of THC, one of the chemical components in marijuana and is FDA approved for treating nausea, vomiting, and appetite loss of cancer and AIDS patients. Some of Marinol's most common side effects include dizziness and paranoia.

About four months later, Payne was notified by a letter from RRAD's Col. Douglas Evans that he had tested positive for drug use. Evans informed Payne that he was being placed on administrative leave and was barred from the Depot.

The Depot then sent a formal notice of termination, which Payne signed on Nov. 30, 2006. The Director of Public Works stated the specific reason for termination was the drug test result that showed the chemical THC. According to the letter, Payne's termination was justified because he had been advised by drug testing officials to submit medical documents, a physician's letter or a recent prescription regarding his Marinol usage.

The lab says it did receive a note regarding the drug use, but officials were unable to contact Payne's physician to validate the note's authenticity. The lab indicated it was told by the physician's nurse that there were no notes in Payne's chart regarding the use of Marinol.

The Depot claims that while Payne knew officials were having difficulties verifying the Marinol, he failed to provide any confirmation that the THC was the result of a prescription drug, not illegal drug usage.

"Instead, [Payne] called the lab and told the representatives not to call [his] residence anymore," the defendants claim.
Payne was formally terminated on Dec. 7, 2006.

Payne further alleges harassment and slander. He says an FBI report used during an investigation by the Office of Personnel Management contained "completely inaccurate" information. According to the report, Payne had failed a substance abuse test given by a previous employer, was arrested and charged for possession of marijuana but not convicted, arrested for speeding and convicted for assault and battery.

Payne claims the report was improperly released to the EMT board by RRAD officials in an effort to have his EMT license revoked.

On Sept. 25, Payne petitioned the U.S. Merit System Protection Board for review but was denied due to lack of new evidence. The Review Board notified Payne that he did have the option to initiate a civil action within 30 days.

He did that, exactly one month later.

Magistrate Judge Caroline Craven has been assigned to the case.

Case No.: 5:07cv00162

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