Marlon Cooper, a lieutenant with the Memphis Fire Department, first tested positive for marijuana in 2008. At that time, Cooper was not terminated from his employment, but instead was suspended for 360 hours and thereafter entered into an employee assistance program (EAP).
Although Cooper was given a second chance, the City made clear that illegal drug use was not permitted by its personnel, noting in its 2008 suspension letter to Cooper that “any further violations of this nature may result in your termination from the Division of Fire Services.”
Despite this warning, Cooper tested positive for marijuana again on January 15, 2016 following a random drug screen while on duty. When the City eventually fired Cooper, he challenged the termination through the court system.
The Tennessee Court of Appeals upheld the termination. The Court noted that “there is no question that Cooper was given several warnings by the City regarding discipline under the substance abuse policy. As an initial matter, Cooper was warned and afforded a second chance by the City in 2008. With regard to the specific conduct at issue herein, 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.
“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 Cooper were readily established in this case, we are of the opinion that substantial and material evidence existed to support the Civil Service Commission’s decision to uphold Cooper’s termination. The evidence before the Commission showed that Cooper tested positive for marijuana, and he chose not to challenge the results of that test.
“Moreover, the record clearly supports that Cooper violated the rules set in the Division of Fire Services’ Operations Manual. The Manual provides that the use or possession of illegal drugs or narcotics is a major violation and that repeated violations are a major violation. Given the evidence pertaining to his positive drug test in 2016 and prior offense from 2008, violations of both of these provisions were plainly established.
“As for the firefighters to whom Cooper wishes to compare, evidence showed that four of these firefighters were involved in off-duty alcohol incidents. The fifth alleged comparable was involved in an on-duty alcohol incident, but his offense was committed before the City began to determine that second offenders were no longer eligible for the EAP program. According to proof before the Commission, no employee in the Fire Division has been allowed a third chance for on-duty positive drug or alcohol tests since 2012.”
Cooper v. City of Memphis, 2019 WL 3774086 (Tenn. Ct. App. 2019).